U.S. Supreme Court
Marshall v. United States, 124 U.S. 391 (1888)
Marshall v. United States
Submitted January 5, 1888
Decided January 23, 1888
124 U.S. 391
APPEAL FROM THE COURT OF CLAIMS
Seventy-five percent of forty-five hundred dollars is the maximum pay to which an officer of the Army of the United States placed on the retired list as a colonel is entitled.
The appellant brought suit against the United States in the Court of Claims, where judgment was entered against his claim. The case is stated in the opinion of the Court. chanrobles.com-red
MR. JUSTICE HARLAN, after stating the facts in the foregoing language, delivered the opinion of the Court.
Elisha G. Marshall, the intestate of the appellants, served as a cadet from July 1, 1845, to July 1, 1850, was in the active service of the Army in different positions from the latter date until September 11, 1867, when he was placed on the retired list with the rank of colonel, and thereafter served continuously until April 11, 1882, on the retired list of the Army.
The claim made by his administrators is that "the pay of his grade as provided by law" is $2,625, and that he was entitled, from and after July 1, 1870, to forty percent on that sum for length of service -- in all, to the sum of $3,675 per annum, whereas he was only allowed and paid the sum of $3,375 per annum, or seventy-five percent of the maximum pay of a colonel in active service.
The following sections of the Revised Statutes were brought forward from the Act of Congress approved July 15, 1870, entitled "An act making appropriations for the support of the Army for the year ending June 30, 1871, and for other purposes," 16 Stat. 315-320, c. 294:
"SEC. 1261. The officers of the Army shall be entitled to the pay herein stated after their respective designations: . . . colonel, three thousand five hundred dollars a year. . . ."
"SEC. 1262. There shall be allowed and paid to each commissioned officer below the rank of brigadier general, including chaplains and others having assimilated rank or pay, ten percent of their current yearly pay for each term of five years of service."
"SEC. 1263. The total amount of such increase for length of service shall in no case exceed forty percent on the yearly pay of the grade as provided by law."
"SEC. 1267. In no case shall the pay of a colonel exceed
four thousand five hundred dollars a year, or the pay of a lieutenant colonel exceed four thousand dollars a year."
"SEC, 1274. Officers retired from active service shall receive seventy-five percent of the pay of the rank upon which they retire."
The contention in behalf of the appellants is that under § 1274, a colonel, upon being retired, should receive seventy-five percent of the pay of his rank or grade on the active list, and in addition thereto such longevity increase pay as length of service shall entitle him to under § 1262, without regard to what his current pay might have been had he remained on the active list. It is insisted that Colonel Marshall was entitled to receive, after ten years service from July 1, 1870, $2,887.50 -- that is, $2,625, or seventy-five percent of the colonels' grade pay of $3,500, and $262.50, or ten percent of his current yearly pay during that period, and, upon the same basis, $3,176.25 after ten years of service; $3,493.87, after fifteen years of service, and $3,675, after twenty years of service -- the increase stopping at the last sum by reason of the provision in § 1263 that the total amount of longevity increase shall not exceed forty percent of the yearly pay of the grade.
The construction of the statutes which this view would require cannot be sustained. When it is provided, in respect to officers in active service, that in no case shall be "pay of a colonel exceed four thousand five hundred dollars a year" and that "officers retired from active service shall receive seventy-five percent of the pay of the rank upon which they are retired," there is no room left for construction. Colonel Marshall was retired upon the rank of colonel. The annual maximum pay of that rank was and is $4,500. He received seventy-five percent of that maximum pay, and therefore received all that Congress authorized to be paid to him as a colonel on the retired list.