# Petition for Writ of Certiorari — Norman v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0265%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 393 U.S. 1018 ## Text EME COURT. I). & no, 0 2 6 OCT 14 106g » CLERK IN THE senate Court of the Uniten States OCTOBER TERM, 1968 RoscoE L. NORMAN, ET AL., Petitioners, ¥. THE UNITED STATES, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF CLAIMS RICHARD L. MERRICK 802 Junie Court Joliet, Illinois 60435 Attorney for Petitioners Norman, Crowley, Buckland, Fitzgerald and Buckey CLIFFORD A. DOUGHERTY Securities Building 2007 North Fifteenth Street Arlington, Virginia 22216 Attorney for Petitioner Martin SRC na WILSON - EPES PRINTING Co. - RE 7-6002 - WASHINGTON, D. C. 20001 LVS EITARS. SNE LE GLEP ILE LE LILES EN ILE VOL LON ETS orn INDEX Page Appendix : ; la-5la Conclusion oe 16 Decision Below Constitutes Departure from Usual Course of Judicial Proceedings 4, 8-13 Does Temporary Statute Repeal or Suspend Permanent ones al 13 Federal Questions Involved ? 4,6, 7,8 a cae caeeenaiohaadebaiies 2 Misrepresentations of Air Force to Procure Enactment of White Charger Act ah ices leaicenciasiaidasbtescisniiae 8,9 New Statute and New Questions Involved 6 Opinion of Court of Claims.............................. 1, 2, 8, 18, 1a-48a Proceedings and Opinion Beiow 1, 2, 8, 13, la-48a Questions Presented a 2,3, 4 Reasons for Granting the Writ 4,16 Secretary of Air Force Unlawfully Delegated Discre- tion a 5 UT csc ceesincasacnconnncsenciuienenuniaonaccbs 4 Unlawful Delegation of Discretion fe 14, 15 Vested Rights, Creation of : 7 White Charger Act Unconstitutional -............000....... 5 STATUTES MENTIONED Act of June 4, 1920, 41 Stat. 758 ....... ‘ | Sec. 10, Act of Juiy 12, 1960, P. L. 86-616, 74 Stat. ___ GREE ene OE Ela ane Rees 2, 3, 6, 11, 18, 14, 49a Sec. 8916, Title 10, United States Code 3, 6, 50a Sec. 8921, Title 10, United States Code 3, 6, 50a ii INDEX (Continued) Page Sec. 8963, Title 10, United States Code -.....00....0..... 3 Sec. 1255(1), Title 28, United States Code ............. 2 White Charger Act (Sec. 10, Act of July 12, IIE. ‘ibdissnnnedimcacinniteadincamicidsaadadud 2,3, 10, 11, 13, 14, 49a OTHER AUTHORITIES 11 Am. Jur. 1200, Sec. 371, 16 Am. Jur.2d 762, SOS IIE accion baitiedh i Niicalasdlcetilee actuated alana atacce ies 7 Constitution of United States, Article I, See. 8 ...... 14 TABLE OF CASES Andrews v. U. S., 175 Ct. Cls. 561 (1966) ............... 13 Barber v. Gladden, 385 U. S. 363, 364 (1966) ......... 7 Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318 SE cchbcensaaveabcsdestienteasalimnbaniad cath ons abinadaiekenecenethies 7 Barnes v. Northwest Air Lines, 223 Minn. 410, 433, if i. Sf Se Gt | RRR On Ena eae 7 Beard v. Stahr, 370 U.S. 41, 43 (Dissenting Opin- a ae 6 Cudahy Packing Co. v. Holland, Administrator of the Wage and Hour Division of the Department of Labor, 315 U.S. 357, 363, 367, 86 L. Ed. 895, a I I aeons salicnicas orb seenesinrmnteogosuncs 15 Fletcher v. U. S., Ct. Cls. No. 386- 65, Decided A LE, | SOLES 7 Greene v. McElroy, 360 U.S. 474, 496 (1959) ......... 6 Kirby v. U. S., 174 U.S. 47, 55, 56 (1899) 2022. 7 Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S. ee Fe i | OE 5 Schechter Poultry Corp. v. U. S., 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935)... 5 Slochower v. Board of Higher Education, 350 U.S. RE III inhi nacacaceiansamaccevaaeniomnnsintuanaabeakiemeniais 7 State Board of Milk Control v. Newark Milk Co., 118 N. J. 504, 521, 522, 179 A. 116, 125 (1935)... 5 State v. Traffic Telephone Workers Federation, 66 B Ad. G6 (KN. J. Sup. Ct. 1968)... INDEX (Continued) State ex rel Lum v. Archibald, 43 Minn 328, 45 Bs eh IE eherkicncevederemervneendansameanvincaiin Symons v. Klinger, 372 F. 2d 47 (9th Cir.) cert. A, Te Wee RO CED vecieeterictectomnn United Public Workers v. Mitchell, 330 U.S. 75 UIE: Se otiaddieieetstivecsebia-taspiede a tin sadamncielbbaiaiasaniioentea Veix v. Seneca Bldg. & Loan Assoc., 126 N. J. L. Se Fe |: Fe. |: | Reece Williams v. Zuckert, 371 U.S. 531, 534 (cert. granted on rehearing) 372 U.S. 765 (1963) Weiman v. Updegraff, 344 U.S. 183 (1952) see ewe we etn eee iii a as ed IN THE Suprenve Court of the United States OCTOBER TERM, 1968 No. RoscoE L. NORMAN, ET AL., Petitioners, v. THE UNITED STATES, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF CLAIMS Petitioners, Roscoe L. Norman, John E. Crowley, Sher- wood E. Buckland, Maurice J. Fitzgerald, Loran E. Buck- ey, and John B. Martin, plaintiffs in the court below, pray that a writ of certiorari issue to review the judg- ment of the United States Court of Claims, filed March 15, 1968, which became final on July 17, 1968, upon the denial of plaintiffs’ motion for a new trial and reassign- ment of their cases to a different judge of said Court of Claims. PROCEEDINGS AND OPINION BELOW The six cases involved herein were filed separately, were consolidated for hearing by a Commissioner of the Court below on his own motivn, and were heard by him at Washington, District of Columbia, on January 19, 20 and 21, 1966. The Commissioner filed a report on Febru- 2 ary 2, 1967, containing a “Memorandum Opinion”, find- ings of fact and a recommended conclusion of law. On June 5, 1967, the six plaintiffs, by counsel, filed excep- tions and objections to the Commissioner’s Report and a 48 page brief in support thereof. Government counsel filed a brief in opposition on August 9, 1967. The cases were argued before the Court of Claims on December 6, 1967, and on March 15, 1968, the Court filed a 48 page opinion containing a so-called “Conclusion of Law” “that plaintiffs are not entitled to recover” and “their petitions are dismissed.” On May 16, 1968, plaintiffs filed a motion for a new trial and reassignment of their cases to a different judge of the Court of Claims. On July 17, 1968, the Court of Claims denied that motion. JURISDICTION The jurisdiction of this Court is invoked under the pro- visions of Title 28, United States Code, Section 1255(1). QUESTIONS PRESENTED The questions to be decided are new, arise under a new and unusual statute not previously construed by any court, and are as follows: 1. Unconstitutionality of Section 10 of the Act of July 12, 1960, Public Law 86-616, 74 Stat. 395, a temporary statute, commonly referred to as the “White Charger Act”, for faiiure of the Congress to provide standards for the exercise of Congressional discretion conferred cn the Secretary of the Air Force only; denial to plaintiffs of their constitutional rights of due process of law, in- cluding a hearing, confrontation, cross-examination, and representation by counsel; and because enactment thereof was procured by the United States Air Force by misrep- resentations made to the Congress. 3 2. The decision by the United States Court of Claims of a federal question of substance not previously deter- mined by this Court. 3. The decision by the United States Court of Claims of an important question of federal law which should be settled by this Court. 4, The decision by the United States Court of Claims in these cases so far departs from the accepted and usual course of judicial proceedings as to call for the exercise of this Court’s powers of supervision. 5. Whether Section 10 of the Act of July 12, 1960, a temporary statute, has the effect of suspending or tempo- rarily repealing Sections 8916 and 8921 of Title 10, United States Code, permanent statutory provisions, vest- ing in plaintiffs the right to remain on active duty for 28 years as lieutenant colonels and 30 years as colonels in the regular United States Air Force. (Fo. the convenience of this Court, the statutes men- tioned in this paragraph and the opinion of the Court below are printed in the appendix hereto) 6. The unlawful delegation by the Secretary of the Air Force of Congressional discretion conferred on him only by said Section 10 of the Act of July 12, 1960, thus rendering the premature mandatory retirement of plain- tiffs void and ineffectual. The foregoing questions are discussed in the following pages of this petition. STATUTES INVOLVED Section 10 of the Act of July 12, 1960, Public Law 86-616, 74 Stat. 395. — Section 8916 of Title 10, United States Code Section 8921 of Title 10, United States Code Section 8963 of Title 10, United States Code 4 STATEMENT OF THE CASES The six plaintiffs involved herein were lieutenant colo- nels and colonels in the Regular United States Air Force rio accepted their appointments with the intention of making service in the Air Force their careers and of re- maining on duty until they became entitled to retirement for length of service. By statutes in force at that time the terms of office of lieutenant colonels and colonels were 28 and 30 years respectively. Plaintiffs served honorably, faithfully and to the entire satisfaction of their superior officers for more than 20 years, but were retired manda- torily under Section 10 of the Act of July 12, 1960, the enactment of which, as hereinafter shown, was procured by misrepresentations and misstatements made to the Congress by the Air Force. Plaintiffs’ premature forced retirements resulted in materially reduced incomes at a time when maximum incomes were necessary for the sup- port of their families, education of their children, and discharge of other necessary financial obligations. REASONS FOR GRANTING THE WRIT 1. The statute involved (Sec. 10, Act of July 12, 1960) is unconstitutional and should have been so found by the Court of Claims. 2. The questions to be decided are new and arose under a new and unusual temporary statute not previously con- strued by any court; namely, Section 10 of the Act of July 12, 1960. 3. The Court of Claims has deci‘ed federal] questions of substance not theretofore determined by this Court, but which should be settled by this Court. 4. The decision below constitutes such a departure from the usual course of judicial proceedings as tv call for the exercise of the powers of supervision of this Court. 5 5. Even if the statute should be found to be constitu- tional, the Secretary of the United States Air Force un- lawfully attempted to delegate Congressional discretion conferred only upon him without authority from the Con- gress therefor. 1. The White Charger Statute is Unconstitutional. Section 10 of the Act of July 12, 1960, is unconstitu- tional and void because (1) it attempted to confer on the Secretary of the Air Force the legislative discretion to reduce the strength of the Air Force by the retirement mandatorily of permanently commissioned officers of the Regular Air Force before completion of their statutory tenures of office without prescribing any standards or methods of selecting such officers and without affording them any of the usual constitutional rights of a hearing, confrontation, cross-examination or representation by counsel. Under the terms of the statute as enacted, the Secretary of the Air Force could retire mandatorily the youngest, the oldest, the tallest, the shortest, the thinnest or heaviest officers, or all graduates of a particular col- lege, or those with blue eyes, who had served at least 20 years and had been passed over for promotion more than twice. Legislative standards for the exercise of delegated leg- islative discretion are essential] to the validity of such a statute. Panama Refining Co. v. Ryan, 293 U. S. 388, 55 S. Ct. 241, 72 L. Ed. 446 (1935) Schechter Poultry Corp. v. U. 8., 295 U. S. 495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935) State Board of Milk Control v. Newark Milk Co., 118 N. J. 504, 521, 522; 179 A. 116, 125 (1935) Veix v. Seneca Bldg. & Loan Assoc., 126 N. J. L. 314, 321, 19 A. 2d 215 (1941) State v. Traffic Telephone Workers Federation, 66 A. 2d 616 (N. J. Sup. Ct. 1949) 6 2. New Statute and New Questions Involved. Section 10 of the Act of July 12, 1960 (74 Stat. 595), a temporary statute, constitutes a radical] legislative de- parture from usual statutory provisions of a somewhat similar nature, because it purported to vest in the Secre- tary of the Air Force the temporary authority and power summarily to retire commissioned officers of the Regular United States Ais Force of the ranks of lieutenant colonel and colonel as being marginal, marginally effective, un- satisfactory or substandard before they had served their terms of office fixed by permanent statutes without af- fording such officers the requisite constitutional rights of a hearing, confrontation and cross-examination. By Sections 8916 and 8921 of Title 10, United States Code, lieutenant colonels and colonels were required to serve at least 28 and 30 years, respectively, before be- coming entitled to retirement for length of service. In other words, their statutory terms of office were 28 and 30 years. Plaintiffs were summarily and mandatorily re- tired at reduced retirement pay before completion of their terms of office. 3. Federal Questions of Substance Are Involved. Plaintiffs maintain that they had vested rights in their offices of which they could be deprived only by due process of law. Where an officer’s tenure of office is fixed by statute, as here, before he can be deprived of his office against his will, he is entitled to a hearing, to be repre- sented by counsel, to be confronted by his accusers, and to cross-examine them, as well as to exercise the right to challenge members of the hearing agency or court. Plaintiffs were denied all such rights. Confrontation and cross-examination are “vital when one’s employment rights are involved”. Greene v. McElrov. 360 U. S. 474, 496 (1959) Beard v. Stahr, 370 U. S. 41, 48 ied opin- ion) (1962) 7 Williams v. Zuckert, 371 U. S. 531, 534, cert. granted on rehearing 372 U. S. 765 (1963) Barnes v. Northwest Airlines, 233 Minn. 410, 433, 47 N. W. 2d 180, 193 (1951) Symons v. Klinger, 372 F. 2d 47 (9th Cir.), cert. denied 386 U. S. 1040 (1967) Barber v. Page, 390 U. S. 719, 88 S. Ct. 1818 (1968) Barber v. Gladden, 385 U. S. 368, 364 (1966) Fletcher v. U.S.Ct. Cls. No. 386-65, decided March 15, 1968 The right of confrontation is “one of the fundamentals of life and liberty”. Kirby v. U. S8., 174 U. S. 47, 55, 56 (1899) Plaintiffs’ interests in their employment were entitled to constitutional protection. United Public Workers v. Mitchell, 330 U. S. 75 (1947) Weiman v. Updegraff, 344 U. S. 183 (1952) Slochower v. Board of Higher Education, 350 U. S. 551 (1956) “Vested rights may be created by common law, by Statute, or by contract. No matter how created they are entitled to the same protection.” 11 Am, Jur. 1200, Sec. 371, 16 Am. Jur. 2d 762, Sec. 422. Plaintiffs’ rights to remain on duty for 28 and 30 years were created by statute and plaintiffs could be deprived thereof only by due process of law. As stated above, they were denied due process of law. Following the First World War, the Army was over- staffed with commissioned officers. Authority was request- ed of the Congress to reduce the commissioned strength of the Army. The Congress enacted the Act of June 4, 1920, 41 Stat. 758, 773, Sec. 246, which provided for placing Army officers in Classes A and B. Those in Class A were to be retained in the service, and those in Class 8 B were to be eliminated. In enacting that statute, Con- gress carefully safe-guarded the rights of such officers by authorizing them to show cause as to why they should not be eliminated from active service, to have a formal hearing before a Court of Inquiry, to appeal their cases to the Secretary of War and then to the President. We contend that the least that should have been granted to plaintiffs was a hearing, the rights of conirontation and cross-examination, and representation by counsel. Con- stitutional rights certainly are federal questions of sub- stance, are invclved in plaintiffs’ cases, anu this Court properly should settle those questions. 4. The Decision Below Departs From the Usual Course of Judicial Proceedings. As we have shown above, plaintiffs were denied the constitutional rights of a hearing, confrontation and cross-examination before their mandatory premature re- tirements were effected. Prior to during, and after 1958, the Department of the Air Force sought legislative authority for the elimina- tion from the active list by mandatory retirement of a “small number” of “marginal”, “marginally effective’, “unsatisfactory” and “substandard” lieutenant colonels and colonels. To procure enactmert of such legislation, the Depart- ment of the Air FKurce represented to the Congress that it expected to eliminate about “a hundred (such officers) and then their problem will be solved”; “it is our hope to use this permissive legislation, if passed, very sparing- ly to eliminate only the very bottom in these grades”; “Therefore, in the interest of good personnel manage- ment, the Air Force would like the authority to involun- tarily retire a certain few of these officers”. “Based upon an examination of the records of the officers concerned, it is estimated that from 100 to 200 permanent lieuten- ant-colonels will be retired the first year.” “In this grade 9 (colonel) the proposed law limits the number who may be involuntarily retired to 20 percent of those considered. This means that 40 would be the maximum number that could be eliminated in any particuiar year. Based on an examination of the records of these officers, it is estimated that approximately 25 would be retired the first year.” “The primary purpose of this (legislation) is to give us a management tool to eliminate from the service margi- nally effective officers.” “* * * we currently think we vould probably eliminate 25 colonels.” “* * * we have today approximately 600 permanent colonels serving in the active grade of colonel. “* * * if this legislation were passed we would involuntarily retire 25”. (See Transcript of Hearing before a Subcommittee of the Committee on Armed Services, United States Senate, on S. 1795, June 17, 1959, Pages 16, 39, 40, 41, 42) The evidence in the record before the Court of Claims and this Court conclusively and definitely shows that each of the plaintiffs was classified by superior officers under the Air Force’s rating system as “A Very Fine Officer of Great Value to the Service’, the rating category next to the highest used. None of the plaintiffs was classified or characterized as “marginal”, “marginally effective”, “sub- standard” or “unsatisfactory.” Instead of retiring 25 colonels and 100 to 200 lieuten- ant colonels tne first year, the Air Force, less than seven months after passage of the White Charger statute, ac- tually directed the retirement of 120 colonels and 375 lieutenant colonels, nearly five times the number of colo- nels and three times the number of lieutenant colonels which the Air Force represented to the Congress it want- ed to retire. The Air Force deliberately misled the Con- gress into enactment of Section 10 of the Act of July 12, 1960. (Commissioner’s Memorandum Opinion, pp. 19- 20) 10 The court below failed to give any weight to the actions of the Air Force in procuring enactment of the White Charger statute by misrepresentations. In the second paragraph on Page 2 of the opinion of the Court below, the following appears: “* * * The Act permitted early mandatory retire- ment of not to exceed 20 per cent of officers in the military service in the grade of permanent colonel and an unlimited number of permanent colonels with 20 years or more of service who had been considered fer promotion twice, but not recommended.” Those statements are erroneous in several respects. The pertinent provisions of the so-called White Charger Act, (P.L. 86-616, 74 Stat. 395) are as follows: “(a) Not more ths once in each fiscal year, the * * * Secretary of the Air Force may convene one or more boards, * * * to review the records of, and recommend for continuation on the active list, offi- cers * * * in the regular grade of colonel or lieuten- ant colonel who have at least 20 years of service * * * and who have been considered more than twice but not recommended for promotion * * *. “(b) A board convened under this section shall recommend officers for continuation on the active list in the number specified by the Secretary. The Sec- retary may specify separate numbers for particular categories of officers. However, except with respect to the first board convened under this section * * * in the Air Force, the number specified by him for officers in any category must be at least 80 per cent of the officers in that category being considered. * * * (See pp. 5 and 6 of Court’s opinion where pertinent provisions of the Act appear). Accordingly, it is self-evident that the statements in the Court’s opinion that the Act permitted early manda- tory retirement of not to exceed 20 percent of officers in the grade of permanent colonel and an unlimited number 1t of permanent colonels with 20 years or more of service who had been considered for promotion twice are incor- rect and inaccurate. The officers subject to mandatory retirement included both colonels and lieutenant colonels and was limited to such officers with at least 20 years of service who had been passed over for promotion three or more times. Furthermore, the limitation of 20 per cent applied to boards subsequent to the first board convened under the act. (Third sentence of Par. (b) of Sec. 10 of Act, beginning in 4th line). An unlimited number of officers might have been specified for continuation on the active list by the Secretary fox the first board, after which the number specified must have been at least 80 per cent of the officers in a particular category. The Act further provided that “* * * if the Secretary approves the report of a board, he shall, not later than the first day of the seventh month beginning after he approves that re- port, retire each officer who is considered but not recommended for continuation.” Also, the statement in the opinion of the Court below to the effect that the Act applied to officers “who had been considered for promotion twice” but not recommend- ed, is incorrect. The Act provided that it related to offi- cers “who have been considered more than twice.” (Last two lines of Par. (a) of Sec. 10). “More than twice” means at ieast three times and not twice, as stated in the Court’s opinion. Plaintiffs filed a motion for a new trial and reassign- ment of their cases to a different judge on May 16, 1968, in which they carefully pointed out the erroneous portions of the Court’s opinion, but the Court denied that motion without comment. The Court’s decision, therefore, con- stitutes a radical departure from the usual course of judi- cial proceedings. Practically all courts are meticulous and careful to avoid inaccuracies and misstatements of fact and law in their opinions. An inaccurate opinion under- 12 mines the respect for and confidence in the ©ourt which both lawyers and litigants usually have for judicial deci- sions. Furthermore, the glaring inaccuracies mentioned above indicate a careless and superficial] examination and reading of the statute involved. In addition to the erroneous statements mentioned above, the Court’s opinion, in the last paragraph on page 3, *outains the statement that “responsible officials of the Air Force became concerned as to the quality of service of some of these senior officers’’, etc. There is absolutely no evidence in the record in these cases that any “responsible” or other “officials of the Air Force” or any other component of the Armed Services of the United States became concerned as to the quality of the service of any of the six plaintiffs in these proceed- ings. On the contrary, each was, as already stated, rated as “A Very Fine Officer of Great Value to the Service” and in a number of instances as “Outstanding”. There- fore, the statements quoted above have no proper place in the opinion of the Court below, and constitute an un- just, unsupported reflection upon sincere, upright, com- petent and efficient officers of high calibre, who served with distinction in peace and war. The Court below, therefore departed from the truth, contrary to the usual course of judicial proceedings. Again on page 5 of the Court’s opinion there are quo- tations from the 1957 report of the Cordiner Committee on Professional and Technical Compensation, including the following: “* * * Having failed of selection for promotion and being in the sanctuary of this provision, these officers have not continued to produce with customary effectiveness. * * *” (about middle of page). Those words have absolutely no application to plain- tiffs. On the contrary, the only evidence before the Court below conclusively shows that all of the plaintiffs con- 13 tinued to perform their duties up to the very hour of their mandatory retirements in a manner entirely satis- factory to the superior officers under whom they served, as well as their contemporaries. In this respect the Court’s opinion again departs from the usual course of judicial proceedings. The portions of the opinion quoted above improperly and unjustly reflect upon the plaintiffs and should be deleted therefrom. Furthermore, at page 7 of the opinion of the Court below are found inaccuracies believed to call for the exer- cise of the supervisory powers of this Court. There the case of Charles L. Andrews et al. v. United States, 175 Ct. Cls. 561 (1966) is cited as an applicable precedent in these proceedings. That case is not an applicable or per- suasive precedent in the cases involved here. In that case, the plaintiffs had served the full period of time required by the Uniform Pay Act of 1963. In the present cases, plaintiffs’ statutory periods of service were cut short by their mandatory retirements, they were deprived sum- m«rily of the right to serve the periods fixed by the ap- plicable statutes, and their rates of retired pay were ma- terially reduced thereby. Certiorari should be granted by this Court and the Court below should be directed to eliminate from its opin- ien all reflections upon the character of the service of plaintiffs. 5. Does Temporary Statute Repeal or Suspend Permanent Statutes? This seems to be a novel question. The situation in these cases suggests the query whether Section 10 of the Act of July 12, 1960, which had a life of five years and expired July 12, 1965, by implication, repealed or sus- pended Sections 8916(a) and 8921(a) of Title 10, United States Code, permanent statutory provisions which have been in effect for 20 years. (Act of August 7, 1947, 61 Stat. 605). Section 10 contains no language even sug- 14 gesting that a repeal or suspension of the provisions of Sections 8916(a) and 8921(a) of Title 10 was intended. Construing all three statutory provisions together and giving effect to all seems to be impossible. Therefore, the permanent statutory provisions should prevail. Repeals by implication are not favored in the law. State ex rel Lum v. Archibald, 43 Minn. 328, 45 N. W. 606, (1890). Section 10 of the Act of July 12, 1960, seems to have had no actual force and effect, and that plaintiffs’ retire- ments thereunder are wholly void. 6. Unlawful Delegation of Legisiative Discretion. Article I, Section 8, of the Constitution of the United States provides that all legislative powers granted are vested in the Congress, and that the Congress shall have power “To make Rules for the Government and Regula- tion of the land and naval Forces.” No other agency, de- partment or officer has any authority or power to increase, reduce or otherwise affect the strength of the military forces of the United States unless empowered by appro- priate Congressional legislation to do so. In enacting Section 10 of the Act of July 12, 1960, the Congress, as heretofore pointed out, did not prescribe any standards for the selection of the officers to be retained on the active list or those to be retired mandatorily, and did not authorize the Secretary of the Air Force to dele- gate to anyone else the legislative discretion conferred upon him by said Act to reduce the strength of the Air Force by mandatorily retiring commissioned officers. The Act specifically and definitely provides that “(a) * * * the * * * Secretary of the Air Force may convene one or more boards * * * to review the records of, and recommend for continuaticn un the active list, officers of that component * * *. no a ere an emene emecenE