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92 C. Cls.
Opinion of the Court
The court rendered its conclusion of law and judgment, as follows:
Upon the foregoing special findings of fact, which are made a part of the judgment herein, the court decides, as a conclusion of law, that the plaintiff is entitled to recover $140.73.
It is therefore ordered and adjudged that the plaintiff recover of and from the United States the sum of one hundred forty dollars and seventy-three cents ($140.73).
WHALEY, Chief Justice, delivered the opinion of the Court:
This case involves the construction of Section 7 of the Act of June 10, 1922 (42 Stat. 628, 629), which provides:
That when the total of base pay, pay for length of service and allowances for subsistence and rental of quarters, authorized in this Act for any officer below the grade of brigadier general or its equivalent, shall exceed $7,200 a year, the amount of the allowances to which such officer is entitled shall be reduced by the amount of the excess above $7,200: Provided, That this section shall not apply to the Captain Commandant of the Coast Guard nor to the Director of the Coast and
Geodetic Survey. The stipulation of the parties shows that the plaintiff is a Lieutenant Colonel in the United States Army on active duty and has had deducted from his pay and allowances for the fiscal year from July 1, 1937, to June 30, 1938, inclusive, the sum of $140.73, being the difference between the pay and allowances as provided by law for an officer of his rank and length of service, with dependents, and the amount actually paid to him.
During the first four months of the fiscal year in question, plaintiff did not occupy Government quarters and therefore was entitled to the pay and allowances, including commutation of quarters, for an officer of his rank, with dependents. During this period the aggregate of his base pay and allowances exceeded $600 a month. The Finance Officer of the Army withheld from the plaintiff all in excess of $600 a month, interpreting the statutory limitation of
Opinion of the Court
$7,200 a year on plaintiff's total pay and allowances to mean a daily limitation of $20 or a monthly limitation of $600. However, during the last eight months of the fiscal year the plaintiff occupied Government quarters and therefore was not entitled to commutation of quarters. During these months his pay and allowances amounted to less than $600 a month with the result that at the end of the fiscal year he received a total of $6,519.31, which was below the yearly amount limited by the statute.
The act specifically states that only “when the total of base pay, pay for length of service and allowances for subsistence and rental of quarters
shall exceed $7,200 a year, the amount of the allowances to which such officer is entitled shall be reduced by the amount of the excess above $7,200." It deals with an annual amount and provides only for a reduction when that annual amount is overreached. Under the terms of this section an officer is given the right to receive the full amount of base pay, pay for length of service and allowances for subsistence and rental of quarters so long as the total of all these items does not exceed the maximum fixed in the statute. A daily or monthly computation of pay and allowances is not mentioned in the statute. The computation is to be made for the year. All salaries of the Government are based on the fiscal year and Congress appropriates for salaries on the fiscal-year basis.
It is admitted that plaintiff's total of base pay, pay for length of service, and allowances for subsistence and rental of quarters during the fiscal year in question was several hundreds of dollars under the amount named in the statute and even with the addition of $140.73, which was deducted by the Finance Officer, would still be below that amount.
To uphold the contention that, by a monthly or daily computation of pay and allowances, a reduction can be made, although the total amount actually received for the year was not in excess of the amount named in the statute, would constitute an exercise of judicial legislation in which this court has neither the right nor the power to indulge, and would require a holding that, although Congress had employed plain, positive, and easily understood language to
92 C. Cls. Reporter's Statement of the Case express its intention, it had in reality intended something different which it did not express.
The reduction by the Finance Officer was unwarranted. Plaintiff is entitled to recover.
Judgment is entered for the plaintiff in the sum of $140.73. It is so ordered.
WHITAKER, Judge; LITTLETON, Judge; and GREEN, Judge,
MAR-DE-PASSY CORPORATION v. THE UNITED
[No. 42694. Decided November 12, 1910. Plaintiff's motion for new
trial overruled March 3, 1941.)
On the Proof 8
Patent for improrements in marine vessels; infringement.-Where
plaintiff's petition alleges infringement of Patent No. 1,599,311, granted September 6, 1926, for a marine vessel, upon an application originally filed June 14, 1923, because of the application to certain warships of the United States of a structure extraneous to the original hulls of the ships and placed thereon primarily for protection against torpedoes, it is held that the evidence submitted establishes that the Government structures complained of do not correspond to the claims of the patent
in suit and therefore there is no infringement. Same.-The defendant made no use of such a combination of features
as is described in the specifications of plaintiff's patent. Same.—There is nothing new in the plaintiff's patent unless it be
in the features that were not used by the defendant; the evidence definitely shows that the defendant made no use of the combination claimed by plaintiff and that all the defendant did use in modernizing its ships was old in the art of shipbuilding.
The Reporter's statement of the case:
Mr. Titian W. Johnson, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.
The court made special findings of fact as follows:
1. The plaintiff, Mar-de-Passy Corporation, brings this suit under the Act of June 25, 1910 (36 Stat. L. 851), and
Reporter's Statement of the Case
the Act of July 1, 1918 (40 Stat. L. 705), for compensation because of the use by the United States of patent No. 1,599,311, granted to Rochus Max zu Lynar Passy de Chimang, September 6, 1926, entitled "Marine Vessel.”
2. The application originally was filed June 14, 1923, abandoned, and later filed December 10, 1925. A copy of the file wrapper and contents are in evidence as defendant's exhibit No. 13 and are by reference made a part of this finding.
3. On March 17, 1926, the inventor, by an instrument in writing assigned the patent to the Mar-de-Passy Corporation of New York, which assignment is duly recorded in Liber (–126, page 531, in the United States Patent Office.
4. The patent in suit, a copy of which, plaintiff's exhibit No. 2, is made a part of this finding, states that the present invention relates to improvements in marine vessels or ships, more particularly to the construction of the hulls thereof. The patentee has stated the purpose and intent of his invention as follows:
One of the objects of the invention is to so construct the fore body of the hull of the vessel that is adapted to cleave the water as it advances and at the same time leave as far as possible undisturbed the water over which its midship portion has to pass.
Another object of the invention is to so shape the hull that the amount of its submerged surface, or in other words, its draft, is reduced to a possible minimum, whereby its speed is increased.
A further object of the invention is to provide the hull with compartments or bulkheads, which serve at the same time as ballasting devices, designed to steady and trim the vessel, and also to prevent careening, rolling, pitching, etc.
A still further object of the invention is to so shape the bottom of the vessel that the propellers and rudder thereof receive at all times a free and solid flow of water for their efficient operation.
With these and other objects in view, which will more fully appear as the nature of the invention is better understood, the same consists in the combination, arrangement, and construction of parts hereinafter described, pointed out in the appended claims and illustrated in the accompanying drawings, it being understood that many changes may be made in the size
92 C. Cis.
Reporter's Statement of the Case
and proportion of the several parts and details of con. struction within the scope of the appended claims without departing from the spirit or sacrificing of any of the advantages of the invention, page 1, lines 5 to 40
of the Specification. There is attached to the patent, and referred to therein, drawings showing the hull of a vessel constructed in accordance with the specifications of the patent. These drawings are reproduced on a smaller scale and inserted in these findings under the caption PATENT DRAWINGS.
The patent recites in substance that to accomplish these desired ends there is provided at the bow 12 of the vessel (Figs. 1 and 2 of the drawings) a sharp cut-water 13 and sides 14 expanding along fine lines to a point 15 which has the greatest width of beam thereafter continuing along gentle stream lines toward the stern 16.
The midship portion of the hull, indicated by 17, extends from the section 5—5 to section 9-9, has a flat bottom 19 and vertical sides 18.
From section 9—9 the bottom rises gradually toward the stern and has a transverse section as shown in Fig. 10 of the drawings.
The forebody of the bottom is wedge shaped, the apex of which is indicated by the numeral 20. This apex is flattened out as it proceeds aft until at section 5–5 it becomes a flattened portion 21 (Fig. 5). This flattened portion 21 is "disposed a substantial distance below the bottom portion 19 of the hull proper.” The flattened portion 21 forms the bottom of a bulkhead structure 22 and rises from forward towards the after part of the vessel until at section 9—9 it merges into the flattened bottom 19.
This bulkhead structure 22, Figs. 1 and 2, surrounds the flat bottom of the hull proper and extends upwardly and surrounds part of the sides 18 in the midship section of the hull.
From a point 44 to point 9–9 this bulkhead completely encloses the true hull and at which stations it is merged into the contour of the hull.
The sides 23 of the enclosing bulkhead 22 are curved out from the sides 18 of the hull and then are carried down