United States v. Stahl/Opinion of the Court

The claimant, as is implied in the facts found and is admitted by the counsel of the United States, was continuously in active service in the navy from September 14, 1876, to August 10, 1887, first in the naval academy as a cadet midshipman, then, it would seem, as a midshipman or a cadet engineer, and then as assistant engineer. See Rev. St. §§ 1512, 1521-1525, 1536, ad fin. On August 10, 1887, he resigned his commission as assistant engineer, and on August 11, 1887, he was appointed an assistant naval constructor. While the pay of a cadet midshipman, of a midshipman, or of a cadet engineer is not, the pay of an assistant engineer or of an assistant naval constructor is, graduated by length of service. Rev. St. § 1536. The claimant's whole service from the time of his entering the naval academy, and notwithstanding his resignation of one commission the day before he received another, must be considered a continous service, for the reasons stated in the opinion just delivered in U.S. v. Alger, 14 Sup. Ct. 346. He has been given credit for his whole prior service upon his last commission, upon which he was not entitled to it; and has been allowed no credit upon his commission as assistant engineer, upon which he was entitled to it. The court of claims, applying the same rule that it did in U.S. v. Alger, apparently considered him entitled to both.

As this court holds him to be entitled to longevity pay as assistant engineer only, there should be deducted from the sum due him for such pay the sum which has been mistakenly and improperly paid to him. McElrath v. U.S., 102 U.S. 426; U.S. v. Burchard, 125 U.S. 176, 8 Sup. Ct. 832.

Judgment reversed, and case remanded for further proceedings in conformity with this opinion.