Moore v. United States 13 Ct. Cl. 542

MOORE’S CASE.

(12 C. Cls. R., 709; 95 U. S. R., 760.)

Andrew M. Moore, appellee, v. The United States, appellents.

On the defendants’ Appeal.

The statute (Rev. Stilt., 1556) <fives increased pay to paused assistant surgeons in-theKavy “five yeai's after date of appointment.” The claimant is appointed assistant surgeon April 12,1869. On April 12,1874, he claims the, increased pay of a passed assistant, having become passed assistant in the interval. The department insists that the five years run from the date of his appointment as passed assistant, and not from his appointment as assistant surgeon. The claimant, replies that there -is no office of passed assistant surgeon, and brings his action for the increase of pay. ,

Tlie court below, being equally divided in opinion, renders judgment proforma, for tlie purposes of an appeal, in favor of the claimant. The defendants appeal.

The judgment pro forma of the court helorv is reversed. The Supreme Court now holds: (1) That a passed assistant surgeoncy in the Navy is an office, though the appointment to it is founded on an examination and is in the form of a [simple notification by the Secretary that the officer has passed; (2) That the words giving increased pay to passed assistant surgeons in the Navy “five years after date of appointment” (Rev. Stat., 1556), refer to his appointment as passed assistant and not to his appointment as assistant surgeon.