explaining that an individual who receives an overpayment from the government, re- gardless of whether the overpayment arose under a con- tract, is “liable to refund it” to the United States
How later courts described this case
- explaining that an individual who receives an overpayment from the government, re- gardless of whether the overpayment arose under a con- tract, is “liable to refund it” to the United States
Written by the judges who cited it.
The opinion
HUTCHESON, Circuit Judge
(dissenting).
The majority and I are fundamentally in agreement on the proposition that “the labor *562 er is worthy of his hire,” that, when the hire has been fixed by statute, the employee can have no more, the employer can pay no less, and that neither the aceeptanee of less nor the payment of more will work an estoppel upon either. Emmons v. U. S., 63 Ct. Cl. 125 , collecting the authorities.
We disagree on the hire. Our disagreement springs from the different methods employed by us in arriving at what Congress intended he should be paid. The majority opinion attaches great importance to the Act of March 2, 1903, governing longevity pay of officers on’ the retired list. I think it entirely inapplicable. The majority finds in its provisions a revelation of what was in “the mind of Congress” when it passed the Act of March 4, 1915, under which appellant was restored to the active list, authorizing the President, with the consent of the Senate, to make transfers to the active list, and therein provided: “Such officer shall be transferred to the place on the active list which he would have had if he had not been retired, and shall be carried as an additional number in the grade to which he has been transferred, or at any time thereafter may be promoted.” I think the act of 1915 speaks for itself.
Aside from the difficulties I experience in finding in a statute passed twelve years earlier, in times of peace, and concerned entirely with retired officers, any reflection of “the mind of Congress” as to what the pay of active officers should be when, the world at war, it made provision in 1915 for nunc pro tune restoration of officers to the active list, especially as Congress has uniformly since 1903 made separate provision for the pay of retired, from that of active officers (see Leonard v. U. S., 279 U. S. 40 , 49 S. Ct. 232 , 73 L. Ed. 604 ) I find the act of 1915 free from ambiguity, carrying “the mind of the Congress” on the face of it, and requiring for its ascertainment no judicial clairvoyance. In the simplest and most understandable terms Congress has declared that the transfer of appellant was “to the place on the active list which he would have had if he had not been retired.”
In view not only of the settled dictionary meaning which the word “place” has, “order of priority, advancement,” etc., but of its universal use in common speech as meaning position in service, from the standpoint of seniority, preferment, and pay, it would, it seems to me take weasel words of great power to leech it down to a mere pale repetition of the word “grade.” I find no weasel words in the proviso. I think it needs no exegesis to discover that, when Congress said that'an officer restored to active duty shall be transferred to the place on the active list which he would have had if he had not been retired, it meant that he would be so restored, no more and no less, and that the effect of the transfer was to reinstate him on the active list, nunc pro tune the date of his retirement, completely and to all intents and purposes, as though he had always been there. Such effect for. the act I think its words, apart from all other considerations, demand. When it is further considered that the act of 1915 was passed and acted upon as part of the plan for the national defense, and that, when the officer was restored to the active list, a real war was impending, to pare down the meaning of so full a word as “place” by qualifying out of it its effect on longevity pay is to take but a niggard view of the “mind of Congress” toward officers then called back to active duty.
While I am satisfied enough that the intent of the act of 1915 is plain, to rest upon its words alone, if “the mind'of Congress” is to be sought elsewhere, there are other acts dealing with the longevity pay of active officers in the army, which, bearing directly upon the question at issue, tend, I think, to reinforce appellant’s right to his pay.
It must be kept in mind in this case that this is not an action by the officer for back pay withheld. This is an action by the government to compel him to pay back, for five years, money which the accounting officers have been for the past ten years paying him.In such a ease, though he may not hold what is not his due, the government is none the less the actor, and must, in order to have it back, point to a law which makes its original payment wrongful.
No statute to which reference has been made in the briefs and in the majority opinion as supporting the claims of the government is in my opinion at all applicable to the ease of an active officer like appellant. The acts fixing the pay of -active officers do not, in my opinion, support, they rebut the government’s claim. That of June 10, 1922, revising generally the scheme of service pay, base, and longevity, fixed a new schedule; the amount of base pay fixed with reference to specific pay periods was made to depend both upon rank and length of service. Leonard v. U. S., 279 U. S. 42 , 49 S. Ct. 232 , 73 L. Ed. 604 . It made no classi *563 fication of active officers in active service into those who had been for a time on the retired list, and those who had never been. All without distinction were classified in periods according to rank and length of service. As to all active officers in the service on June 30, 1922, it provided: “There shall be included in the computation all service which is now counted in computing longevity pay.” Appellant at that time was drawing, and had for five years drawn, longevity pay on the basis established by the statute of 1915, that he had never been out of active service. The government has pointed to no statute or practice condemning this computation, or the payment made under it. On the contrary, it has affirmed its correctness by not suing to recover it back. When further, still searching for the mind of Congress, it is found that on May 29, 1928, the Congress of the United States, amending and correcting errors in the Code, including erroneous section 683, set out correctly in the majority opinion as it appears in the Code, but none the less an incorrect rendering of the statute, made section 683 (10 USCA) read: “For officers in the service on June 30, 1922, there shall be included in the computation all service in the army including active duty performed,” etc., the conclusion in appellant’s favor becomes more inescapable. Notwithstanding the act of 1903, the holding of United States v. Tyler, 105 U. S. 244 , 26 L. Ed. 985 , that “retired officers are in the military service of the Government,” is still the law. White v. Treibly, 57 App. D. C. 238, 19 F.(2d) 712 ; Kahn v. Anderson, 255 U. S. 6 , 41 S. Ct. 224 , 65 L. Ed. 469 ; Sawyer v. United States (C. C. A.) 10 F.(2d) 416 ; Aitken v. Roche, 48 Cal. App. 753 , 192 P. 464 . In this view, the language “all service in the army” carries the conviction that it was the mind of Congress as to all active officers in the service in June, 1922, that they should have their pay computed on their army service without deduction for the periods during which they had been retired. Whether so or not as to all officers, it is, I think, certainly so as to officers restored by the act of 1915, as appellant was, to “the place on the active list which he would have had if he had not been retired,” for the act, as to them, has wiped out the period of retirement.
“The laborer is worthy of his hire.” The officer, appellant here, has had but that. It ought not to be taken from him.
I respectfully dissent.