Thornley v. United States

by Samuel Freeman Miller

United States Supreme Court

113 U.S. 310

Thornley  v.  United States

The appellant brought this suit against the United States to recover a balance due him, as he contended, on his pay as an officer of the navy. His petition alleged that, on September 1, 1855, he was commissioned a surgeon in the navy; that on June 1, 1861, while he still held the grade or rank of surgeon, he was, by order of the secretary of the navy, issued by direction of the president, placed on the retired list, in accordance with the provisions of section 3 of the act of congress approved February 21, 1861, (12 St. 150,) by reason of incapacity for further service at sea, but that for some years after said retirement he was assigned to and performed active duty; that by section 3 of the act of congress approved July 15, 1870, the sea-pay of an officer on the active list of the navy of the grade or rank held by the appellant at the time of his retirement was fixed, for the first five years from date of commission, at $2,800 per annum; for the second five years from the date of commission, at $3,200 per annum; for the third five years from the date of commission, at $3,500 per annum; for the fourth five years from the date of commission, at $3,700 per annum; and after 20 years from the date of commission, at $4,200 per annum.

The petition further alleged that section 1 of the act of congress approved March 3, 1873, (17 St. 247,) fixed the pay of officers of the navy, who were then or might thereafter be retired on account of incapacity, resulting from sickness or exposure in the line of duty, at 75 per cent. of the sea-pay of the grade or rank which they held at the time of their retirement; that the act of congress approved April 7, 1882, (22 St. 41,) entitled 'An act for the relief of Medical Director John Thornley, United States navy,' the appellant, directed that he be considered as having been retired from active service as a surgeon and placed on the retired list of officers of the navy, June 1, 1861, on account of physical incapacity originating in the line of duty, and that he be paid accordingly. The petition also referred to section 1 of the act approved August 5, 1882, which provided that all officers of the navy should 'be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer army or navy, or both, and receive all the benefits of such actual service, in all respects, in the same manner as if said service had been continuous in the regular navy.'

The petition further alleged that the appellant, under a proper construction of said acts, should have received pay since March 3, 1873, at the following rates, to-wit: from March 3, 1873, to September, 1, 1875, $2,775 per annum, or 75 per centum of the sea-pay of a surgeon on his fourth lustrum from the date of his commission; and from September 1, 1875, to the time of filing his petition, $3,150 per annum, or 75 per centum of the sea-pay of a surgeon after 20 years from the date of his commission; that such pay had been wrongfully withheld from him, and he had only been paid since March 3, 1873, at the rate of $2,400 per annum. The petitioner, therefore, demanded judgment for $6,343.67.

The findings of fact made by the court of claims, January 29, 1883, were as follows: 'On the third of September, 1855, the petitioner was commissioned a surgeon in the navy. On the first of June, 1861, on account of physical incapacity to perform further service at sea, he was placed on the retired list as a surgeon, under the third section of the act of February 21, 1861, (12 St. 147, 150.) From March 3, 1873, to November 16, 1882, he was paid at the rate of $2,400 per annum, but the accounting officers of the treasury have refused to allow him any more than that amount.' From these facts the court deduced the conclusion of law that the petitioner was not entitled to recover, and dismissed his petition. From this judgment the petitioner appealed.

Robt. B. Lines and John Paul Jones, for appellant.

Sol. Gen. Phillips, for appellee.

Mr. Justice Miller deliverd the opinion of the court. He recited the facts as above stated, and continued:

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