cordingly. Pope v. U. S. (1884), 19 Ct. Cl. 693. Decisions under prior laws, see U. S. v. Vinton (C. C. 1836), Fed. Cas. No. 16,624; U. S. v. Freeman (C. C. 1845), Fed. Cas. No. 15,163; Hunt v. U. S. (1870), 6 Ct. Cl. 8; (1821), 1 Op. Atty. Gen. 525; (1822) 1 Op. Atty. Gen. 547; (1822) 1 Op. Atty. Gen. 564; (1829) 2 Op. Atty. Gen. 223: (1834) 2 Op. Atty. Gen. 646; (1835) 2 Op. Atty. Gen. 697; (1836) 3 Op. Atty. Gen. 83; (1853) 6 Op. Atty. Gen. 211. 1635. Increase in pay for exercising higher command.-That in time of war every officer serving with troops operating against an enemy who shall exercise, under assignment in orders issued by competent authority, a command above that pertaining to his grade shall be entitled to receive the pay and allowances of the grade appropriate to the command so exercised: Provided, That a rate of pay exceeding that of a brigadier-general shall not be paid in any case by reason of such assignment: Sec. 7, act of Apr. 26, 1898 (30 Stat. 365). * The appropriations for additional pay, pursuant to this section, in the Army appropriation act for the fiscal year 1901, contained a proviso that no part thereof be used for pay of officers assigned to higher command than their rank in the Army, unless such service should be continuous for a period of not less than three months. Act of May 26, 1900 (31 Stat. 211). Provisions relating to readjustment of disallowances or stoppages on account of payments for exercise of higher command between Apr. 26, 1898, and Mar. 18, 1907, in the Army appropriation act for the fiscal year 1912, act of Mar. 3, 1911 (36 Stat. 1039), are omitted, as temporary merely. Notes of Time of war, and troops operating against an enemy. A naval officer's services in the waters of the Philippines held rendered in time of war," within this section. Thomas v. U. S. (1903), 39 Ct. CI. 1. An officer commanding a vessel operating against insurgents during an insurrection held entitled to the benefit of this section. Leigh v. U. S. (1908), 43 Ct. Cl. 374. 64 The phrase troops operating against an enemy," as used in this section, was intended to apply to all instances where the troops of the United States are assembled into separate bodies, such as regiments, brigades, divisions, or corps, for the purpose of carrying on and bringing to a conclusion the war with Spain. If the operations of the troops are with the direct object of assisting in the military measures of the Government for subduing the forces of Spain, they can be considered as operating against an enemy, although such operations may not be direct and are in the nature of necessary component steps, though remote, in one great military objective. Any troops assembled at camps lu the United States for war purposes can properly be considered as operating against an enemy, although their present service is confined to the ordinary routine of camp life. (1898) 22 Op. Atty. Gen. 95. Officers exercising, under assignment in orders, a command above that pertaining to their grade, in connection with the Army of the United States, if performing no other Decisions. service of a domestic nature, but held in readiness to resume hostilities, are entitled to the increased pay and allowance provided for by this section. (1898) 22 Op. Atty. Gen. 258. Command.-The term "command," in this section, refers to the body of troops which constitutes a command. Humphreys v. U. S. (1903), 38 Ct. Cl. 689. Assignment to command and order therefor. The accounting officers may inquire whether an order of assignment was carried into effect according to law. Glenn v. U. S. (1902), 37 Ct. Cl. 254. The intention of this section is to allow to officers, who, under proper assignments, assume higher commands and greater responsibilities, a higher rate of pay; but this increased pay is only allowed in cases where an assignment by order is necessary. Walker v. U. S. (1907), 43 Ct. Cl. 1. So, where an officer was assigned to a higher command by his corps commander, he can not recover the pay of the higher grade be exercised, where such command devolved upon him by seniority without the aid of the order assigning him thereto. U. S. t. Mitchell (1907), 27 Sup. Ct. 463, 465, 205 U. S. 161, 51 L. Ed. 752, reversing Mitchell v. U. S. (1905), 41 Ct. Cl. 36. It extends only to cases where an order is necessary to impose the burden of the higher command, and not to cases where a command temporarily devolves upon an officer without an order. And an assignment made merely to increase an officer's pay is un authorized. Humphreys v. U. S. (1903), 38 Ct. Cl. 689. Where the Secretary of War refused to confirm the assignment, his refusal was an annulment of the regimental order, and of itself deprived the officer from receiving the pay of the higher grade. Van Leer v. U. S. (1913), 48 Ct. Cl. 145. Staff officers. A staff officer does not exercise a command; and an officer assigned to staff duty can not be regarded as exercising a command above that pertaining to his grade, under this section. Truitt v. U. S. (1903), 38 Ct. Cl. 398. Brigade commander.-An officer assigned to command a brigade held entitled to the pay of a brigadier general. Glenn v. U. S. (1902), 37 Ct. Cl. 254. Marine Corps officers.-A lieutenant colonel of the Marine Corps, assigned to the command of a so-called regiment, is not an officer having a command above that pertaining to his grade, and is not entitled to the pay of a colonel in the Marine Corps. Berryman v. U. S. (1908), 43 Ct. Cl. 397. First lieutenants commanding company.— This section extends to a first lieutenant assigned to command another company than his own. Walker v. U. S. (1907), 43 Ct. Cl. 1. Temporary absence from command.-The temporary absence of an officer from the higher command does not deprive him of the higher pay. Leigh v. U. S. (1908), 43 Ct. Cl. 374. 1636. Principal assistant, Ordnance Bureau.-Section twelve hundred and seventy-nine is amended by adding at the end thereof the following words: ** * The principal assistant in the Ordnance Bureau shall receive a compensation, including pay and emoluments, not exceeding that of a major of ordnance." Act of Feb. 27, 1877 (19 Stat. 243), amending R. S. 1279. The term "Ordnance Bureau" refers to the Ordnance Department or is synonymous with the Office of the Chief of Ordnance Under the above law it was the custom to detail a captain to serve in Washington, giving him the pay and allowances of a major. But see 2311, post. 1637. Longevity pay.-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 per centum of their current yearly pay for each term of five years of service. R. S. 1262. Notes of Decisions. Retroactive effect of section.-See Davison v. U. S. (1908), 43 Ct. Cl. 308. Service."-The word " service," as used in this section, means military service. U. S. v. La Tourrette (1894), 14 Sup. Ct. 422, 423, 151 U. S. 572, 38 L. Ed. 274. It means actual service performed under color of office, without regard to defects in the title to the office. The reward which the statutes intend is for long-continued actual service, and it matters not whether an officer serves as such de jure or de facto. Bennett v. U. S. (1884), 19 Ct. Cl. 379; Palen v. U. S. (1884), 19 Ct. Cl. 389; Gould v. U. S. (1884), 19 Ct. Cl. 593. A person employed by the council of administration at an Army post, prior to sec. 7, act of Mar. 2, 1867 (14 Stat. 423), to officiate as chaplain was in the "service," and, if afterwards regularly commissioned under that act, the period of his service under the prior appointment should be included in computing his longevity pay. U. S. v. La Tourrette (1894), 14 Sup. Ct. 422, 423, 151 U. S. 572, 38 L. Ed. 274. Contra, see La Tourrette 1". U. S. (1891), 26 Ct. Cl. 296. This decision by the Court of Claims seems afterwards to have been overruled and the claim allowed. See 28 Ct. Cl. 566. See further (1881) 17 Op. Atty. Gen. 152. Retired officers.-The statute makes no distinction between officers on the active and retired list. Longevity pay of officers on the retired list is to be computed as if they remained on the active list, subject to the general deduction of one-fourth directed by 1648, post. Tyler v. U. S. (1880), 16 Ct. Cl. 223. U. S. v. Tyler (1881), 105 U. S. 244, 246, 26 L. Ed. 985. Contra, see Marshall v. U. S. (1888), 8 Sup. Ct. 520, 124 U. S. 391, 31 L. Ed. 475. See 1045 and 1646, post. Contract surgeon.--A contract surgeon is not an officer within the provisions of R. S. 1262, or the act of June 30, 1882, granting longevity pay. Yemans v. U. S. (1917), 52 Ct. Cl. 388. National Guard drafted into Federal serv ice. The provision in sec. 111, act of June 3, 1916 (39 Stat. 211), that officers and enlisted men of the National Guard drafted into the service of the United States shall have the same pay and allowances as officers and enlisted men of the Regular Army of the same grade and the same prior service, construed to mean the same length of service in the Organized Militia or National Guard. (1917) 24 Comp. Dec. 120. Officers so drafted are entitled to count all service on the active list in the Organized Militia or National Guard, whether as officers or enlisted men, for the purpose of computing longevity pay. Id. Enlisted men so drafted are entitled to count all continuous service on the active list in the Organized Militia or National Guard for the purposes of continuous-service pay from and after Aug. 5, 1917; but service on the reserve list, whether under State laws or under sec. 69 of the act of June 3, 1916, may not be so counted, except to determine the continuity of active service. Id. The right to count prior State service on the active list in the National Guard or Organized Militia for the purpose of the longevity increase of pay remains with officers of the National Guard entitled thereto whenever in the Federal service without regard to the continuity of such service. (1918) 25 Comp. Dec. 66. Volunteer service.-Under sec. 15, act of July 5, 1838 (5 Stat. 258) which provided that every commissioned officer of the line or staff, exclusive of general officers, shall be entitled to receive one additional ration per diem for every five years he may have served or shall serve in the Army of the United States, in connection with sec. 1, act of Mar. 2, 1867 (14 Stat. 434), which provided that "in computing the length of service of any officer of the Army, in order to determine what allowance and payment of additional or longevity ration he is entitled to," there should be taken into consideration his service as a commissioned officer either in the Regular Army or, since April 19, 1861, in the volunteer service, it was held that service in the volunteer forces during the Mexican War could not be included in computing his right to such longevity ration. U. S. v. Sweeny (1895), 15 Sup. Ct. 608, 157 U. S. 281, 39 L. Ed. 702. Militia officers.-An officer of State milltia is not entitled to longevity pay, under this section, for the period during which he was an officer of such militia, for service with his organization with a part of the Regular Army, at an encampment authorized by 2574, post. Bowie v. U. S. (1909), 45 Ct. Cl. 42. Effect of discharge from service.-The discharge of an officer of the Army does not take effect, so as to relieve the Government from its obligations, until he is notified of the fact and actually discharged from service. Gould v. U. S. (1884), 19 Ct. Cl. 593. Computation.-Since the passage of sec. 1641, post, the method of computing current year, under this section, has been as prescribed thereby. Plummer v. U. S. (1912), 32 Sup. Ct. 467, 469, 224 U. S. 137, 56 L. Ed. 697, reversing (1909), 45 Ct. Cl. 614. This section was not affected in principle by 1641, post, which simply provides a numerical measure of compensation. La Tourette V. U. S. (1891), 26 Ct. Cl. 296. The method of computing longevity pay is not by taking one-tenth of the officer's fixed annual pay, but one-tenth of his current yearly pay"; i. e., his second longevity pay will include 10 per cent of his first longevity pay, etc., subject, however, to the provision of 1638, post. Tyler v. U. S. (1880), 16 Ct. Cl. 223. Longevity pay.-Longevity pay is founded upon the equivalent of increased judgment and capacity acquired by the experience of continued service. Brown v. U. S., 18 Ct. Cls. 545. Acts authorizing longevity pay are remedial statutes, and officers are entitled to a liberal interpretation of them, the language used being given as broad a meaning as Congress may be presumed to have intended. Hendee v. U. S., 22 Ct. Cls. 134; 19 id. 153. See also notes to 1641 and 1643, post. 1638. Maximum rate of longevity pay.-The total amount of such increase for length of service shall in no case exceed forty per centum on the yearly pay of the grade as provided by law. R. S. 1263. See notes to 1639, post. 1639. Maximum pay for colonel, lieutenant-colonel, and major.-In no case shall the pay of a colonel exceed five thousand dollars a year; the pay of a heutenant-colonel exceed four thousand five hundred dollars a year, or the pay of a major exceed four thousand dollars a year. R. S. 1267, as amended by act of May 11, 1908 (35 Stat. 108), making appropriations for the support of the Army. This section, as enacted in the Revised Statutes, was as follows: "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." For temporary increase in these grades, see 1628, ante. Notes of Decisions. Retired pay.-A retired officer is only entitled, by 1648, post, to receive 75 per cent of the sum which he was entitled to receive upon the active list at the time of his retirement. Marshall v. U. S. (1888), 124 U. S. 391, affirming (1885), 20 Ct. Cl. 370; affirmed on rehearing (1888), 131 U. S. 391; Roberts v. U. S. (1874), 10 Ct. Cl. 283. 1640. Service as cadet not to be counted toward longevity. That hereafter the service of a cadet who may hereafter be appointed to the United States Military Academy or to the Naval Academy shall not be counted in computing for any purpose the length of service of any officer of the Army. Sec. 6, act of Aug. 24. 1212 (37 Stat. 594), making appropriations for the support of the Army. * 1641. Service in the Navy included in computing longevity pay.-For additional pay to officers for length of service, to be paid with their current monthly pay, and the actual time of service in the Army or Navy, or both, shall be allowed all officers in computing their pay: Provided, That from and after the first day of July, eighteen hundred and eighty-two, the ten per centum increase for length of service allowed to certain officers by section twelve hundred and sixty-two of the Revised Statutes shall be computed on the yearly pay of the grade fixed by sections twelve hundred and sixty-one and twelve hundred and seventy-four of the Revised Statutes; Act of June 30, 1882 (22 Stat. 118), making appropriations for the support of the Army. R. S. 1261 and 1262, mentioned in this provision, prescribing rates of pay for various grades of officers, are set forth, 1627, 1637, ante, and R. S. 1274, also mentioned therein, providing that retired officers should receive 75 per cent of the pay of the rank upon which they were retired, is set forth, 1648, post. Notes of Decisions. See, also, notes to 1637, ante, and 1643, post. Actual time of service-Service as cadet in Military Academy.-Prior to the enactment of 1640, ante, time spent in the Military Academy by a cadet had to be considered as actual time of service in the Army, in computing his increase of pay. 1. S. v. Morton (1884), 5 Sup. Ct. 1, 3. 112 U. S. 1, 28 L. Ed. 613, affirming 19 Ct. Cl. 200; U. S. v. Watson (1889), 9 Sup. Ct. 430, 130 U. S. 80, 32 L. Ed. 852; (1889) 19 Op. Atty. Gen. 439; contra, see (1881) 17 Op. Atty. Gen. 93. Service as civil engineer.-Where an officer served as an assistant civil engineer in the employ of the War Department on the Florida coast and elsewhere, the actual time of his service in that capacity should not be allowed in computing his longevity pay. (1881) 17 Op. Atty. Gen. 93. Service as clerk and messenger.-Employment as clerk and messenger in the quartermaster's and subsistence departments is not "service in the army," within the meaning of this section. Schreiner 17. U. S. (1908), 43 Ct. Cl. 480, distinguishing U. S. v. Hendee, 124 U. S. 309. Reopening settlement.-See (1889) 19 Op. Atty. Gen. 439. 1642. Longevity pay based on service outside the Army. Provided, That hereafter longevity pay for officers in the Army, Navy, Marine Corps, Coast Guard, Public Health Service, and Coast and Geodetic Survey shall be based on the total of all service in any or all of said services. Sec. 11, act of May 18, 1920 (41 Stat. 604). 1643. Service as enlisted man and in volunteer forces to be included in computing longevity.--That on and after the passage of this act, all officers of the Army of the United States who have served as officers in the volunteer forces during the war of the rebellion, or as enlisted men in the armies of the United States, regular or volunteer, shall be, and are hereby, credited with the full time they may have served as such officers and as such enlisted men in computing their service for longevity pay and retirement. * Sec. 7, act of June 18, 1878 (20 Stat. 150). Notes of Act is prospective in operation.-(1883) 17 Op. Atty. Gen. 555, 560. Officers included-Service as enlisted men. The term "enlisted men," in this section, refers only to certain classes of enlisted men, including Indian scouts and hospital stewards. It refers only to those officers who have risen from the ranks. It does not include cadets at the Military Acaderay. Babbitt v. U. S. (1880), 16 Ct. Cl. 202; (1878) 16 Op. Atty. Gen. 611. And see U. S. v. Babbitt (1881), 104 U. S. 767, 768, 26 L. Ed. 921. During the war of the rebellion.-The phrase during the war of the rebellion," in this section, is a limitation upon the provisions thereof only with respect to of ficers of the Army who have served as officers in the volunteer forces. It does not apply to those officers of the Army who have served as enlisted men in either the volunteer or regular forces. Hence, in computing the service of officers of the latter description for longevity pay and retirement, service performed by them as enlisted men previous to the war of the rebellion must be taken into account. (1878) 16 Op. Atty. Gen. 611. Retired officers.-This section makes no discrimination against officers on the retired list. Tyler v. U. S. (1880), 16 Ct. cl. 223. Decisions. Longevity pay.-An officer once in actual service, under color of office, is entitled to have the time credited to him in the computation of longevity pay. Gould v. U. S., 19 Ct. Cls. 593. The time of actual service is to be credited to an officer in the computation of his longevity pay, without regard to a defect in his title to the office. Palen v. U. S., 19 id. 389. Service as chaplain prior to the act of Mar. 2, 1867 (14 Stat. 423), can be ceckoned in computing longevity pay, chaplains being in the military service prior to that date. U. S. v. LaTourette, 151 U. S. 572. Service as a contract surgeon can not be reckoned in such computation. Byrnes c. U. S., 26 Ct. Cls. 302; Hendee v. U. S., 124 U. S., 309. Before the passing of the act of July 28, 1866, as well as afterwards, the corps of cadets of the Military Academy was a part of the Army of the United States, and a person serving as a cadet was serving in the Army; and the time during which a person has served as a cadet was, therefore, actual time of service by him In the line of the Army. Morton v. U. S. 112 U. S., 1, 7. 1644. Service in the National Guard, etc., to be included in computing longevity pay.-That officers and enlisted men of the forces of the Army of the United States other than the Regular Army who have had service in the National Guard and Organized Militia of any State, Territory, or District, but who have entered the service in the forces of the Army of the United States, otherwise than through draft under the provisions of section one hundred and eleven of the Act of June third, nineteen hundred and sixteen, known as the national defense Act, shall be upon the same footing as to pay and allowance as the members of said forces who were drafted under the provisions of said section. Act of July 9, 1918 (40 Stat. 875). See notes to 1637, ante. But see 1694, post. 1645. Longevity pay of retired officers.- * * Provided, That hereafter, except in case of officers retired on account of wounds received in battle, no |