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amounts to $2,500 per annum, shall be appointed to "or hold" any other office to which compensation is attached, except in cases specially authorized by law or specified therein, which exception is not applicable to this case.
Applying the provisions of the act to this case, I am of opinion that the terms of the provision inhibit him from continuing to hold, after the increase of his pay to $2,500 per annum, both the office of captain of the Army and the office of clerk of class two in the office of the Auditor, which has compensation attached thereto amounting to $1,400 per annum. (8 Comp. Dec., 901.) He no doubt had, at the date of such increase of pay, the right to elect which of the two offices he would continue to hold. (United States v. Harsha, 172 U. S., 567.) But as the compensation of only one of these offices amounted to $2,500 per annum, the fact that he continued to hold the office having annual compensation attached thereto amounting to $2,500 must be regarded as an election by him to hold the latter office.
In reaching this conclusion I have not overlooked the opinion of the Court of Claims in Geddes v. United States (38 Ct. Cl., 428). The facts in this case were that while Captain Geddes was holding the office of chief clerk of the Department of Agriculture, which office had a salary of $2,500 attached thereto, he was appointed by the President, by and with the advice and consent of the Senate, in pursuance of the act of June 6, 1900 (31 Stat., 554), a captain in the Army and placed on the retired list. Section 2 of the act of March 3, 1885 (23 Stat., 356), contains the following provision:
"That no part of the money herein or hereafter appropriated for the Department of Agriculture shall be paid to any person, as additional salary or compensation, receiving at the same time other compensation as an officer or employee of the Government."
The Comptroller of the Treasury, to whom the question of the payment to Captain Geddes of the salary of the office of chief clerk of the Department of Agriculture, after he had been appointed a captain of the Army and placed on the retired list, under the act of June 6, 1900, supra, had been presented, held that the latter office has "compensation attached thereto," and that the provision in the act of March 3,
1885, supra, “forbids payment of the sum appropriated for the salary of a chief clerk of the Department of Agriculture to a person receiving for the same time pay as a retired officer of the Army." (7 Comp. Dec., 395.) Thereupon Captain Geddes renounced all claim to pay as an officer of the Army on the retired list, and was paid his salary as chief clerk of the Department of Agriculture. Subsequently he brought suit in the Court of Claims for his pay as a retired officer of the Army. On this branch of the case the court held that a proviso in an appropriation act, that "no part of the money" "appropriated for the Department of Agriculture shall be paid to any person as additional salary," is a limitation upon the power of the head of that Department, but that this limitation does not extend to courts whose judgments will not be paid out of appropriations for that Department.
The court also considered the question whether he was not prohibited from receiving pay as an officer of the Army on the retired list by section 2 of the act of July 31, 1894, supra, which provides that no person who holds an office, the salary or annual compensation attached to which amounts to $2,500, shall be "appointed to or hold" any other office to which "compensation is attached," unless "specially heretofore or hereafter specially authorized thereto by law." And the court held that his case came within the express exception contained in that section, namely, "unless specially heretofore or hereafter specially authorized thereto by law." On this point the court said:
"That is to say, while the claimant was holding the office of chief clerk of the Department of Agriculture, with a salary attached thereto of $2,500 per annum, he was appointed an officer on the retired list by the President and confirmed by the Senate, and that appointment was specially authorized by the Act 6th June, 1900."
These conclusions fully disposed of both points in the case. But the court also gave consideration to a question which, if not unnecessary and immaterial to the case before the court, does not necessarily apply to the case under consideration herein. This question was whether the pay provided by law for an officer of the Army on the retired list is "compeusation" within the meaning of the prohibition against the payment of "additional compensation" in section 2 of the act of
March 3, 1885, supra, relating to the Department of Agriculture. In discussing this question the court said:
"It is well settled that an officer on the retired list owes no service to the Government in time of peace; that if called into service in time of war he returns thereby to the active list and receives full pay; that there is but one military office which he can hold that of superintendent of the Soldiers' Home; and that his reduced retired pay is but an honorary form of pension to be paid him when, having reached a certain age, it is presumed that he is no longer well fitted to render active service to the Government. As a matter of fact, the pay of a retired officer is not compensation, and it follows as a matter of law that the salary of the chief clerk of the Department of Agriculture was not 'additional compensation.'
General expressions used in an opinion which “go beyond the case" ought not to control the judgment in another case in which the particular question commented upon is directly involved. In Cohens v. Virginia (6 Wheat., 264, 399) the court said:
"It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the cases in which those expressions were used. If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason for this maxim is obvious. The question actually before the court is investigated with care and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."
Moreover, the same words, as used in different statutes, may have different meanings. See United States v. Mouat (124 U. S., 303) and United States v. Hendee (id., 309). An examination of this question will leave no doubt, I think, that the pay of an officer of the Army who has been placed on the retired list is compensation attached to the office held by the officer so retired, within the meaning of section 2 of the act of July 31, 1894, supra. Section 1261 of the Revised Statutes provides that
"The officers of the Army shall be entitled to the pay herein stated after their respective designations."
A fixed sum is therein specified for each "rank." This is the "pay" proper of all officers of the Army. Additional pay is also provided for therein for aids.
Section 1262 also provides that there shall be paid to each "commissioned officer" below the rank of brigadier-general 10 per cent of their current yearly pay" for each term of five years of service.
Section 1274 provides that "officers retired from active service" shall receive 75 per cent of the "pay of the rank” upon which they are retired.
Officers of the Army "retired from active service" are by statute entitled to 75 per cent of the "pay of the rank" (sec. 1274) of "officers of the Army," as provided by section 1261, and, as "commissioned officers" of the Army, to 10 per cent of the "current yearly pay" provided for by section 1261 for "officers of the Army" for each term of five years of service. (United States v. Tyler, 105 U. S., 244, 245, 246.)
The act of June 6, 1900 (31 Stat., 554), under which Captain Geddes (whose case was under consideration by the Court of Claims in Geddes v. United States, supra) was placed on the retired list, provides for the revocation of the order confirming the sentence of his dismissal from the Army by courtmartial, and authorizes the President to nominate and, by and with the advice and consent of the Senate, "appoint" him a captain in the United States Army" and place him on the retired list with the "rank of captain."
No provision is made therein for a pension, or for any payment to him. Therefore he can only be entitled to "pay' by reference to sections 1261, 1262, and 1274, supra, which provide for the pay" of "officers of the Army" according to "rank," and for 10 per cent of the "current yearly pay' of a "commissioned officer," 75 per cent of which, according to the "pay of the rank" upon which they are retired, officers of the Army "retired from active service" are authorized to receive.
The act of June 6, 1900, supra, under which Captain Geddes was appointed captain "in the United States Army" and placed on the retired list thereof, contains the following proviso:
"Provided, That no pay, compensation, or allowance shall accrue by reason of this act for any cause prior to its passage.'
This provision thus clearly contemplates that “ compensation" will accrue to Captain Geddes after the passage of the act.
Section 2 of the act of July 31, 1894, supra, which provides that no person who holds an office the salary or annual compensation attached to which amounts to $2,500 shall be appointed to or hold any other office to which compensation is attached, and which is the statute under consideration in this case, excepts from its operation "retired officers of the Army" in certain cases specified. This exception necessarily implies that "retired officers of the Army" are included in the preceding provision relating to offices having "annual salary or compensation" attached thereto, otherwise it would have been unnecessary to except them therefrom. They are excepted therefrom in two classes of cases only, namely, 1, "whenever they may be elected to public office," and, 2, "whenever the President shall appoint them to office by and with the advice and consent of the Senate." If officers of the Army on the retired list are not included in the provision "person who holds an office the salary or annual compensation attached to which amounts to two thousand five hundred dollars," this express exception would be meaningless; but it impliedly declares that they are to be regarded as included in those terms and prohibits their being appointed to or holding any other office, to which compensation is attached, than one to which they are elected or so appointed.
Section 1275 of the Revised Statutes makes provision for "wholly" retiring officers of the Army from service. It provides that" officers wholly retired from the service" shall be entitled to "one year's pay and allowances." In United States v. Tyler, supra, in considering the right of officers placed on the retired list to the increase of pay for length of service, the Supreme Court said:
"There is, therefore, a manifest difference in the two kinds of retirement, namely, retiring from active service and retiring wholly or altogether from the service.
"In the latter case such reward or compensation as Congress thought proper to bestow, namely, one year's pay and allowance, in addition to what was previously allowed, is given at once, and the connection is ended. In the former case the compensation is continued at a reduced rate, and the connection is continued with a retirement from active service only. 營 **
"It is impossible to hold that men who are by statute declared to be a part of the Army, who may wear its uniform, whose names shall be borne upon its register, who may be assigned