#### ROBERT M. DANFORD v. THE UNITED STATES

[No. C-1208.

Decided May 24, 1926]

*On the Proofs*

*Army pay; commandant of cadets.*— Section 1334, Kevised Statutes, providing that tlie pay of the commandant of cadets, Military Academy, shall be that of a lieutenant colonel, was not repealed by section 51 of the act of June 4, 1920, and the said commandant is entitled to the pay of a lieutenant colonel.

*.Same; laclo of appropriation; recourse to Cmvrt of Claims.*See *Strong*v. *United States,*60 O. Cls. 627, 628.

*286
      *The Reporter's*statement of the case:

*Mr. William G. Wheeler*for the plaintiff.

*Mr. John G. Ewing,*with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. On the 6th day of June, 1919, while holding a permanent commission as an officer on the active list of the United States Army, plaintiff was assigned to duty as commandant of cadets at the United States Military Academy at West Point, N. Y., under the provisions of section 1309, Revised Statutes, and upon the 16th day of August, 1919, he assumed the duties of said office and continued in the performance thereof until the 30th day of June, 1923.

II. From July 1, 1921, to June 30, 1923, both dates inclusive, plaintiff held the grade of major on the active list of the Regular Army of the United States; and while serving as commandant of cadets at the United States Military Academy from July 1, 1921, to June 30,1922, both days inclusive, plaintiff received the monthly pay of a major of over 20 years’ service, plus the increased compensation provided under the act of May 18, 1920, and while so serving from July 1, 1922, to June 30, 1923, he received the monthly pay of a major of over 21 years’ service.

III. The monthly pay of a major of over 20 years’ service, without the increased compensation provided by the act of May 18, 1920, is $333.33; the monthly pay of a lieutenant colonel of over 20 years’ service, without the increased compensation provided by the law of May 18, 1920, is $375.

The monthly difference between the pay of a major of over 20 years’ service, without the said increased compensation, and the monthly compensation of a lieutenant colonel of over 20 years’ service, without the said increased compensation, is $41.67.

IY. The difference between the monthly pay of a lieutenant colonel of over 20 years’ service, $375, plus the monthly increased compensation of a lieutenant colonel provided by the act of May 18, 1920, 41 Stat. 601, is a total monthly compensation of $425; and the monthly pay of a *287major of over 20 years’ service, $833.33, plus the increased compensation of a major provided by the act of May 18, 1920, is a total monthly compensation of $403.33, or a monthly difference of $21.67 and a yearly difference of $260.04.

Y. The difference between the monthly pay of a lieutenant colonel of over 21 years’ service, $393.75, and the ■ monthly pay of a major of over 21 years’ service, $337.50, is a monthly difference of $56.25, and a yearly difference of $675.

The amount due and unpaid to the plaintiff as commandant of cadets at the United States Military Academy is. the sum of $935.04.

The court decided that plaintiff was entitled to recover.

Hat, Judge,

delivered the opinion of the court:

(Section 1309 of the Revised Statutes provides for one commandant of cadets at the Military Academy at West Point. The plaintiff was duly appointed by competent authority to the position of commandant of cadets at the Military Academy at West Point, and held said position for the period recited in the foregoing findings of fact. For two years he was paid the pay of a lieutenant colonel while holding said position. For two years he was not paid the pay of a lieutenant colonel, Congress having failed to appropriate the money necessary for that purpose.

Section 1334 of the Revised Statutes provides as follows: “The superintendent of the Military Academy shall have the pay of a colonel and the commandant of cadets shall have the pay of a lieutenant colonel.”

No matter what rank the officer might have had below that, of a lieutenant colonel, when he was appointed by competent authority he was entitled under the provisions of the above statute to the pay of a lieutenant colonel, unless that statute had been repealed by subsequent legislation. There is no. question here involved as to rank, the whole question being-as to pay for the performance of certain duties. Congress, was clearly within its rights when it fixed this pay, and until Congress repeals this law the officer appointed to-*288perform the duty must be paid under the provisions of the above statute.

The act of June 4, 1920, 41 Stat. 785, upon which the Government relies to defeat the section of the Revised Statutes above quoted, provides as follows:

“ Hereafter no detail, rating, or assignment of an officer shall carry advanced rank, except as otherwise specifically provided herein.”

This does not repeal section 1334 of the Revised Statutes. That section does not deal with rank, but with the pay of an officer performing a certain duty.

The fact that Congress made no appropriation for the two years for which he was not paid does not preclude the plaintiff from obtaining relief in this court. His pay has been fixed by law. The accounting officers of the Government have no authority to pay the officer until an appropriation therefor has been made. But the liability of the United States to pay exists independently of the appropriation, and may be enforced by proceedings in this court. *Strong*v. *United,*States, 60 C. Cls. 627, 630, and the cases there cited.

The plaintiff is entitled to a judgment for $934.92. It is so ordered.

■ GRAHAM, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.