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92 C. Cls.

Syllabus

The court decided that the plaintiff was entitled to recover, in an opinion per curiam, as follows:

PER CURIAM: This case involves the question of whether, under section 23 (r) of the Revenue Act of 1932, a loss sustained by the taxpayer (who was engaged in the business of trading in securities) on his individual transactions in stocks and bonds held for two years or less may be offset against his share of partnership profits realized from similar transactions during the same taxable period. Some other questions were also presented which are not necessary to be considered if the answer to the question above stated is in the affirmative.

In the case of Neuberger v. Commissioner, decided November 12, 1940, the Supreme Court held that such an offset can be made against partnership security profits under the section above referred to.

In Klingenstein v. United States, 85 C. Cls. 164 (certiorari denied, 302 U. S. 716), this court followed the decision of the Circuit Court of Appeals of the Second Circuit, in Johnston v. Commissioner, 86 Fed. (2d) 732, where it was held by & divided court that a partner could not offset his non-capital net loss against his share of partnership net gain. The deci-sion of the Supreme Court in the Neuberger case, supra, overrules the decisions made in the two cases last cited and in effect holds that the plaintiff is entitled to recover herein.

There is no dispute as to the facts in the case and under the law as laid down by the Supreme Court the plaintiff is entitled to recover $2,120.19, with interest as provided by law. Judgment will be rendered accordingly.

CHARLES A. BLAKELY V. THE UNITED STATES

[No. 44947. Decided December 2, 1940]

On the Proofs

Pay and allowances; extra pay for Navy officers making aerial

flights suspended.–Following the decision in Dickerson v. United States, 310 U. S. 554, it is held that the Act of July 2, 1926, sections 2 and 6, providing extra pay for officers and enlisted men of the Army and Navy, making aerial flights, was, so far as it applies to Navy officers above the rank of captain, suspended by the Act of April 26, 1938.

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Reporter's Statement of the Case The Reporter's statement of the case :

Mr. Rees B. Gillespie for the plaintiff.

Mr. Louis R. Mehlinger, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.

The court made special findings of fact as follows, upon a stipulation of the facts, which was all the evidence adduced:

1. From July 1, 1938, to June 23, 1939, plaintiff was a rear admiral in the United States Navy, and from June 24, 1939, to June 30, 1939, he was a vice admiral, United States Navy, ex officio.

2. On November 15, 1937, the following orders were forwarded to plaintiff by the Chief of the Bureau of Navigation:

1. On 15 December, 1937, you will regard yourself detached from duty as Commander, Carrier Division Two, and from such other duty as may have been assigned you; will proceed and report to the Commander, Scouting Force, for duty involving flying as Commander Aircraft, Scouting Force, and additional duty as Commander, Patrol Wing One.

2. These orders constitute your assignment to duty in a part of the Aeronautic Organization of the Navy and your existing detail to duty involving flying

continues in effect. 3. Pursuant to the foregoing orders, plaintiff served as a rear admiral in command of the Aircraft, Scouting Force, United States Fleet, from July 1, 1938, to June 23, 1939.

4. On April 24, 1939, the following orders were forwarded to plaintiff by the Secretary of the Navy:

1. Upon being relieved, on or about 20 June, 1939, you will regard yourself detached from duty as Commander Aircraft, Scouting Force, and from such other duty as may have been assigned you; will proceed and report to the Commander in Chief, U. S. Fleet, for duty involving flying, as Commander Aircraft, Battle Force, and additional duty as Commander Carrier Division Two.

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5. These orders constitute your assignment to duty in a part of the Aeronautic Organization of the Navy and your

existing detail to duty involving flying continues in effect.

92 C. Cis,

Opinion of the Court

On June 24, 1939, the President designated plaintiff as Commander, Aircraft, Battle Force, United States Fleet, with the rank of vice admiral, effective from the same date.

Pursuant to the orders of April 24, 1939, plaintiff served as a vice admiral in command of the Aircraft, Battle Force, United States Fleet, from June 24, 1939 to June 30, 1939.

5. From July 1, 1938, to July 1, 1939, plaintiff was a qualified aircraft pilot. From July 1, 1938, to June 30, 1939, plaintiff performed 52 flights totaling 114.5 hours, of which 64.6 hours were performed as a pilot and 49.9 hours as a passenger.

6. From July 1, 1938, to June 1, 1939, Rear Admiral Arthur B. Cook was Chief of the Bureau of Aeronautics, and from June 1, 1939, to June 30, 1939, Rear Admiral John H. Towers was Chief of the Bureau of Aeronautics and received the extra pay authorized for flying duty during the fiscal

year 1939.

7. If plaintiff is entitled to recover flight pay as a rear admiral from July 1, 1938, to June 23, 1939, and as a vice admiral from June 24, 1939 to June 30, 1939, there would be due him the sum of $3,019.45.

The court decided that the plaintiff was not entitled to

recover.

WHITAKER, Judge, delivered the opinion of the court:

Under sections 2 and 6 of the act of July 2, 1926 (44 Stat. 780, 781), officers and enlisted men of the Army and the Navy were entitled to 50 per cent extra pay if they were required by competent authority to, and did, participate regularly and frequently in aerial flights. But, the act of April 26, 1938 (52 Stat. 223, 232), making appropriations for the Navy for the fiscal year ending June 30, 1939, provided :

Pay of naval personnel: For pay and allowances prescribed by law of officers on sea duty and other duty, and officers on waiting orders, pay-$35,457,649, including not to exceed $1,716,318 for increased pay for making aerial flights, no part of which shall be available for increased pay for making aerial flights by any officer above the rank of captain, except not more than one officer of the rank of rear admiral.

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Opinion of the Court From July 1, 1938, to June 30, 1939, the plaintiff was an officer above the rank of captain, and pursuant to competent orders he regularly and frequently participated in aerial flights. He is, therefore, entitled to the increased pay provided for by section 2 of the act of July 2, 1926, supra, unless this act was suspended by the Appropriation Act of April 26, 1938, supra.

There is no doubt that where a liability is created by statute, that liability can be enforced whether or not an appropriation has been made to discharge it. Even though an appropriation be made which is insufficient to pay the obligation, whether for pay or otherwise, the obligation is not discharged pro tanto, and recovery may be had for any deficiency, unless it appears from the act making the appropriation that it was intended to repeal or to suspend or to modify the previously existing law creating the obligation. Geddes v. United States, 38 C. Cls. 428; United States v. Langston, 118 U. S. 389.

The question presented here, therefore, is whether or not Congress intended to repeal, modify, or suspend the act of July 2, 1926, insofar as officers above the rank of captain were concerned.

In United States v. Langston, supra, the Supreme Court had before it an appeal from a decision of this court granting judgment in favor of the Minister to Haiti for a balance

a alleged to be due him for salary. Under section 1683 of the Revised Statutes provision was made for a Minister to Haiti at a salary of $7,500 a year, and until the year 1883 appropriations had been regularly made therefor. However, on July 1, 1882, the appropriation for such Minister for the following fiscal year was only $5,000. This court rendered judgment for the deficiency and an appeal was taken to the Supreme Court. In concluding its opinion that court said:

While the case is not free from difficulty, the court is of opinion that, according to the settled rules of interpretation, a statute fixing the annual salary of a public officer at a named sum, without limitation as to time, should not be deemed abrogated or suspended by subsequent enactments which merely appropriated a less amount for the services of that officer for par

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92 C. Cls. Opinion of the Court ticular fiscal years, and which contained no words that expressly or by clear implication modified or repealed

the previous law. The court distinguished the case there from the case of Fisher v. United States, 109 U. S. 143, because in that case the appropriation was “in full compensation" for the services for the year in question; and it also distinguished it from the case of United States v. Mitchell, 109 U. S. 146, because in that case an appropriation had been made for pay of interpreters, and an additional appropriation had been made for additional pay for interpreters to be paid at the discretion of the Secretary of the Interior. The court had concluded in both the Fisher and the Mitchell cases that it was evident from the language of the appropriation acts that Congress had intended to limit the pay to the sums appropriated. But in the Langston case the court said that the appropriation of a smaller amount, and no more, afforded no indication of such a legislative intent.

In Dickerson v. United States, 89 C. Cls. 520, 310 U. S. 554, we had before us an action by an enlisted man for the reenlistment allowance authorized by section 9 of the act of June 10, 1922. Beginning with the act of July 1, 1933, the provisions of section 9 of the act of June 10, 1922, were expressly suspended in successive appropriation acts until the acts making appropriations for the fiscal years 1938 and 1939. The provisions in those appropriation acts did not expressly suspend section 9 of the act of June 10, 1922, but provided that "no part of any appropriation contained in this or any other act for the fiscal year ending June 30, 1939, shall be available for the payment of” reenlistment allowances "made during the fiscal year ending June 30, 1939, notwithstanding the applicable provisions of sections 9 and 10 of the" act of June 10, 1922. (Italics supplied.)

We decided that Congress did not intend thereby to repeal the provisions of section 9, and we gave judgment for the plaintiff. The Supreme Court reversed, holding that Congress did intend to suspend the provisions of section 9. In reaching this conclusion, the majority were largely influenced by the legislative history back of the legislation, which it

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