« AnteriorContinuar »
100 C. Cls. Opinion of the Court The court decided that the plaintiffs were not entitled to recover.
WHITAKER, Judge, delivered the opinion of the court:
The facts are fully set out in the findings. They show that the plaintiffs were removed from their reservation in Minnesota to the reservation at Usher's Landing because, in the opinion of the Congress, this was thought to be for their best interest. Congress, acting as the guardian of an Indian Tribe, has the power to take from it one reservation and to give to it another, if it thinks that this is for its best interest, and in the absence of express Congressional authorization this Court has not the power to determine whether or not just compensation was paid for the one taken. We went into this entire question in great detail in an opinion rendered through Judge Littleton in the case of Sioux Tribe of Indians v. The United States, No. C-531-(7), decided June 1, 1942. In that opinion the whole question was carefully and exhaustively discussed. The decision in that case is determinative of the case at bar. (97 C. Cls. 613; certiorari denied, 318 U. S. 789.)
Congress in the jurisdictional Act in this case has not conferred upon us authority to determine whether or not just compensation has been paid for the lands taken. It confers jurisdiction on us to render judgment "in any and all legal and equitable claims arising under or growing out of the treaty of February 27, 1855, * * * and the Act of February 21, 1863.” No legal or equitable liability was incurred by the defendant when, under the authority of this Act of Congress, these Indians were removed from their old reservation and settled upon another.
We might say, in passing, that it appears that this tribe has been treated fairly, if not generously.
On the authority of the Sioux case cited above, plaintiff's petition will be dismissed. It is so ordered.
MADDEN, Judge; JONES, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur.
Reporter's Statement of the Case TIMOTHY A. DUGAN v. THE UNITED STATES
[No. 45459 Decided April 5, 1943. Plaintiff's motion for new trial
overruled June 7, 1943.]
On the Proofs Pay and allowances; enlisted man in Navy entitled to retired pay
from date of transfer, and not from date of correction of date of expiration of thirty years service, under the Act of June 25, 1938.-An enlisted man in the Navy on the retired list, with 30 years service, is entitled to retired pay and allowances from the date of transfer to the retired list, under the provisions of the Act of June 25, 1938, and not from date of correction of the
expiration date of thirty years service. Same.-Section 202 of the Act of June 25, 1938, is a remedial statute,
enacted to permit the remedy of wrongs committed through error, permitting the Secretary of the Navy, upon discovery of "any error or omission in the service, rank, or rating for transfer or retirement” of an enlisted man, to correct such error or omission, and upon such correction “the person so transferred or retired shall be entitled to pay and allowances, in accordance with his rank or rating and length of service as determined by the Secretary of the Navy;" and such right to said retired pay and allowances dates from date of transfer to the retired list,
and not from date of correction. The Reporter's statement of the case:
Mr. Fred W. Shields for the plaintiff. Messrs. King & King were on the brief.
Mr. L. R. Mehlinger, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. Mr. Joseph M. Friedman was on the brief.
The court made special findings of fact as follows:
1. Plaintiff enlisted in the United States Marine Corps and served through four enlistments as follows: From August 2, 1902, to August 4, 1906; November 23, 1906, to November 22, 1910; November 25, 1910, to November 24, 1914, and November 24, 1914, to November 24, 1918.
From February 24, 1919, to February 23, 1923, and from March 8, 1923, to May 19, 1926, all dates inclusive, plaintiff was a member of the Fleet Marine Corps Reserve (inactive).
100 C. Cis. Reporter's Statement of the Case Plaintiff again enlisted in the United States Marine Corpsand served from May 20, 1926, to July 2, 1926.
On July 3, 1926, plaintiff was transferred to Class II (b) of the Fleet Marine Corps Reserve (inactive) and remained in that status until March 16, 1928.
Between February 24, 1903 and September 1, 1908, plaintiff served four years, eleven months, and twenty-one days. in the Philippine Islands and in China.
2. On November 1, 1930, plaintiff, having been found not physically qualified for active duty in the event of a national emergency, was transferred to the retired list of enlisted men of the regular Marine Corps.
When he was transferred to the retired list he was furnished with a statement of his service, which showed that exclusive of foreign service, which was then not allowed to be counted as double time for the purpose of retirement from the Fleet Marine Corps Reserve, he would complete thirty years' Naval service on May 19, 1940, and would be eligible to receive the allowances to which enlisted men of the regular Marine Corps were entitled to receive upon retirement.
3. On May 14, 1935, the Major General Commandant of the United States Marine Corps furnished plaintiff with a statement of his service, in which he was advised that service performed by him in the Philippine Islands and China prior to August 24, 1912 was computed as double time for the purpose of retirement from the Fleet Marine Corps Reserve in accordance with an opinion rendered by the Judge Advocate General of the Navy on August 1, 1930.
Plaintiff was also advised that the counting of his foreign shore service as double time changed the date on which he was eligible to receive additional allowances from May 19, 1940, to May 27, 1935; but he was advised of a decision rendered by the Comptroller General of the United States on November 3, 1933, in which it was held that when a date had been definitely set by the Navy Department at the time of transfer, it could not later be changed and, in view of that decision, informed plaintiff that he would not be eligible to receive additional allowances until May 19, 1940.
Reporter's Statement of the Case 4. On July 1, 1935, the Major General Commandant of the United States Marine Corps notified plaintiff that he was advanced to his World War rank of sergeant on the retired list as authorized by an Act of Congress approved May 7, 1932, 47 Stat. 150, to be effective immediately after the date he completed thirty years' service on May 27, 1935. He was also advised that no increase in active or retired pay or allowances would result from said advance in rank.
5. On June 8, 1939, the Major General Commandant advised plaintiff that Section 202 of the Naval Reserve Act of 1938, approved June 25, 1938, 52 Stat. 1175, authorized the correction of retirement dates of men transferred to the retired list from the Fleet Marine Corps Reserve, which correction had been prohibited by prior laws and that the date on which he completed thirty years' service was, accordingly, corrected to May 27, 1935.
Plaintiff was also advised that application for the retired allowances for the period from May 27, 1935, might be submitted to the General Accounting Office. In this connection plaintiff's attention was directed to the following quotation from an opinion rendered by the Judge Advocate General and approved by the Secretary of the Navy on January 17, 1939, as follows:
The decisions of the Comptroller General in the cases of Young and Tanner as applied to the question of whether the retirement date may now be set back to give the man the benefit of service rendered by him which was not counted at the time of his transfer to the retired list prior to July 1, 1938, hold that although the errors in computation of service for transfer may be corrected by the Secretary of the Navy, the men will not be entitled to any back pay and allowances. Where the claimant is entitled to an increase in pay and allowances after July 1, 1938, as the result of the correction of an error in computation of service under the provisions of this Act such increase does not become effective until the date
when such correction is made. 6. Plaintiff filed a claim with the General Accounting Office for retired allowances for the period from May 27, 1935, to June 8, 1939. On September 27, 1939, the Comptroller General denied the claim and informed plaintiff as follows:
100 C. Cls. Opinion of the Court In view of the fact that the Secretary of the Navy did not determine that you had completed 30 years' service until June 8, 1939, payment of your claim prior
to that date is not authorized. 7. On February 7, 1941, pursuant to plaintiff's request, the Major General Commandant of the United States Marine Corps notified plaintiff that on March 16, 1928, he completed thirty years' service in the United States Marine Corps and the Fleet Marine Corps Reserve, including foreign shore service counted as double time. Plaintiff was also advised as follows:
There would be no object, however, in changing the date set by the Secretary of the Navy as being 27 May 1935 since the General Accounting Office, in its letter to you dated 27 September 1939, stated that no payment would be allowed for the period prior to 8 June 1939, the date of the letter from this office setting the date
at 27 May 1935. 8. On April 29, 1941, pursuant to plaintiff's request, the Major General Commandant informed plaintiff as follows:
In accordance with the request contained in reference (b) so much of reference (a) as stated you completed thirty years' service in the Marine Corps, Marine Corps Reserve, and on the retired list on 27 May 1935 is hereby modified to state that you completed thirty years in the Marine Corps and Marine Corps Reserve, including foreign shore service which may be computed as double time, on 16 March 1928. The correction of plaintiff's record showing that he completed thirty years' service on March 16, 1928, was approved by the Secretary of the Navy on April 29, 1941.
9. Plaintiff is entitled to the retired pay and allowances of a retired enlisted man of the United States Marine Corps of his grade and length of service from the date he was transferred to the retired list, to wit, November 1, 1930, to June 8, 1939.
The court decided that the plaintiff was entitled to recover. WHITAKER, Judge, delivered the opinion of the court:
This is a suit by a retired enlisted man of the United States Marine Corps to recover the retired allowances for the period