Samuel Freeman Miller

“ By omitting retired officers from the class entitled to longevity pay, congress expressed its purpose not to allow them longevity pay. No other construction can be put upon the law without importing into it words which congress has left out, namely, that, besides the pay to which his grade or rank at the date of his retirement entitled him, the retired officer should also receive, for every period of five years after his retirement, the increased pay allowed officers on the active list. ”

“ Tyler, 105 U.S. 244, relied on by appellant, brings no support to his suit. The statute allowing longevity pay to officers of the army (section 1262, Rev. St.) declared that there should be allowed and paid to all officers below the rank of brigadier general 10 per cent. of their current yearly pay for every term of five years' service, but it did not restrict the increased pay to officers in active service. ”

“ In such a case there is no necessity for construction. Benton v. Wickwire, 54 N. Y. 226; Woodbury v. Berry, 18 Ohio St. 456; Bosley v. Mattingly, 14 B. Mon. 72; Ezekiel v. Dixon, 3 Kelly, 146; Farrel Foundry v. Dart, 26 Conn. 376; Sussex Peerage Case, 11 Clark & F. 85, 143; Bish. Written Law, § 72. Applying this rule, we are of opinion that the case of the appellant finds no support in any act of congress. ”