#### JEFFERSON F. MOSER v. THE UNITED STATES.1

[No. B-125.

Decided March 19, 1923.]

*On the*Proofs.

*Navy pay; retired officer; cadet service; service in Givil War.*— Where an officer in the Navy served in the Naval Academy during the Civil War he was an “ officer of the Navy with a creditable record who served during the Civil War,” within the meaning of section 11 of the act of March 3, 1899, 30 Stat. 1007, entitling such officer to “ be retired with the rank and three-fourths of the sea pay of the next higher grade.”

*The Reporter's*statement of the case:

*Mr. George A. King*for the plaintiff. *King db King*were on the briefs.

*Mr. John G. Ewing,*with whom was *Mr. Assistant Attorney General Robert H. Lovett,*for the defendant.

The following are the facts of the case as found by the court:

I. Jefferson F. Moser, the plaintiff herein, on February 4, 1907, recovered judgment in this court against the United States for $2,537.50, in accordance with the findings of fact, conclusion of law, and opinion of the court. (42 C. Cls. 86.) Said judgment was never appealed from and was paid by the Treasury. According to the terms of said findings of fact, conclusion of law, and opinion the plaintiff was entitled to have been retired as a rear admiral, lower half, with a salary at the rate of $4,500 per annum, and the increase of pay allowed him by said judgment was for the period up to and including the 31st day of Deceiver, 1906.

II. The plaintiff brought a second suit in this court for salary as a rear admiral of the lower half from January 1, 1907, to February 9,1914, and judgment was rendered in his favor February 9, 1914, in the sum of $5,843.73, as will appear by reference to the official report of the case. (49 C. Cls. 285, 294.)

The plaintiff continued since the 9th day of February, 1914, to be an officer on the retired list of the Navy and was *165paid $3,750 per annum to April 7, 1917, which, is the rate allowed by law for a captain on the retired list while not on active duty. On April 6, 1917* plaintiff was ordered into active service and since that date has so served and been paid $5,000 per annum, which is the rate allowed by law for a captain on the retired list while on active duty in time of war.

III. Plaintiff’s salary as a rear admiral, would have been at the rate of $4,500 a year while not on active duty and at the rate of $6,000 a year while in the performance of active duty in time of war. The difference between those two rates of pay would amount from the 10th of February, 1914, to the 31st of December, 1917, to $3,101.38, for which amount this court entered judgment in his favor in the third suit, No. 33954, from which judgment no appeal was taken and the same was paid.

IV. From January 1, 1918, the plaintiff continued on active duty until June 15, 1919. From June 16, 1919, he reverted to an inactive status, in which he still remains.

There would be due the claimant, if held entitled to the difference in pay between the rank of captain after 20 years and that of rear admiral of the lower half on the retired list of the Navy while on active duty from June 16, 1919, to March 15. 1923, the sum of $4,270.83.

Appealed.

Hat, *Judge,*

delivered the opinion of the court:

This case is decided upon the authority of *Moser*v. *United States,*42 C. Cls. 86, and *Moser*v. *United States,*49 C. Cls. 285, and the case of *Moser*v. *United States,*53 C. Cls. 639. In the case reported in 49 C. Cls. 285 the defendant took an appeal to the Supreme Court of the United States, but before the appeal came on to be heard the United States dismissed the same.

This court in this case has had its attention called to the case of *Jasper*v. *United States,*43 C. Cls. 368, which case was decided after the case of *Moser*v. *United States,*42 C. Cls. 86, and before the decision of the case of *Moser*v. *United States,*49 C. Cls. 285. In the *Jasper case*the Government relied upon the act of June 29, 1906, 34 Stat. 554, and the court decided that the plaintiff "Jasper was not entitled to recover, thereby reversing the first *Moser case.*
      *166When, however, the court came to consider the second *Moser case,*49 C. Cls. 285, it reaffirmed the first *Moser ease*and decided that the questions involved were *res judicata.*That case was followed by the third *Moser case,*53 C. Cls. 639, reaffirming the first and second' *Moser cases*upon the ground of *res judicata;*and we see no reason for changing our views as to the case at bar, which involves the same questions decided in the former three *Moser cases.*

While the *Jasper case*does reverse the first *Moser case,*yet this court is not infallible, and it may have been wrong in its then construction of the act of June 29, 1906, *supra.*It was urged in the *Jasper case*by able counsel that the act of June 29, 1906 did not affect the rights of the plaintiff in that case, and after a careful consideration of that act we are of opinion that the provisions of the statute do not affect the rights of the plaintiff in this case. The rank and pay of retired officers becomes fixed upon their retirement. The plaintiff was retired under the act of March 3,T899, 30 Stat-1007, and under that act the court held that service as a cadet constituted service during the Civil War within the meaning of that act. The act of June 29,1906, in terms provided that service as a cadet should not be accounted service during the Civil War in the application of the act of March 3, 1899, but there was a proviso attached to the act of June 29, 1906, which reads as follows: *“Provided,*That this act shall not apply to any officer who received an advance of grade at or since the date of his retirement or who has been restored to the Navy and placed on the retired list by virtue of the provisions of a special act of Congress.” This proviso was manifestly intended for the benefit of officers who were on the retired list at the date of the passage of this act. The plaintiff was on the retired list then, and had been for some years, and had received at the date of his retirement an advance of grade, and therefore the provisions of the act did not then and do not now apply to him.

For the reasons above stated we are of the opinion that the plaintiff is entitled to recover. Judgment for plaintiff in the sum of $4,270.83.

Graham, *Judge;*DowNet, *Judge;*Booth, *Judge;*and Cambbell, *Chief Justice,*concur.