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    U S v. LUSKEY, 262 U.S. 62 (1923)

    U.S. Supreme Court

    U S v. LUSKEY, 262 U.S. 62 (1923)

    262 U.S. 62

    UNITED STATES
    v.
    LUSKEY.
    No. 371.

    Argued April 10, 1923.
    Decided April 23, 1923.

    The Attorney General and Mr. James A. Fowler, of Knoxville, Tenn., for the United States.

    Mr. George A. King, of Washington, D. C., for appellee.

    Mr. Justice McKENNA delivered the opinion of the Court.

    The findings of fact of the Court of Claims are in substance, these: ( 1) Luskey was a machinist's mate in the Navy. He was by proper authority detailed for duty involving actual flying in aircraft, September 15, 1915, and continued in that duty until after February 1, 1917. He made actual flights, one of which was in September, 1916, and two others in December, 1916, and was at all times capable of flying, if so ordered. (2) He received the sum of $329, being 50 per cent. additional pay allowed him by the Act of March 3, 1915, for duty involving actual flying for the entire period from July 1, 1916, to January 31, 1917, a period of 7 months. At a later period the amount was deducted from his pay. He was paid a certain amount for the month of December, 1916. [262 U.S. 62, 63]   If entitled to additional pay for aviation duty for the entire period, July 1, 1916, to January 31, 1917, less pay received for December, 1916, he would receive $279.95.

    Upon the facts found, the court concluded 'as a matter of law' that he was entitled to recover, and 'adjudged and ordered that' he 'recover of and from the United States the sum of two hundred and seventy-nine dollars and ninety-five cents ($279.95).'

    The United States, by this appeal, disputes the conclusion and judgment. Its contention is that, 'to entitle an officer designated to such service to the extra compensation,' he must 'be actually engaged in flying, and that, when an unreasonable time elapses during which he makes no actual flight, he is not entitled to extra pay for such period.' Expressing its contention in other words, it, in effect, is that it is not the detail, but the flying, not the possibility of a risk, but the actual risk, that vests the right to the additional pay.

    To sustain the contention, emphasis is put upon, and insistence made of, the words of the act (38 Stat. 939 [Comp. St. 2823]) that compensation is awarded to the officer 'while lawfully detailed for duty involving actual flying in aircraft.'

    To the conten ion, and rejecting it, the court replied, after quoting the statute:1

    We concur in the conclusion and judgment. The meaning of the statute 'is plain.' If Congress had intended to provide a detail to intermittent duty with intermittent pay, Congress would have specifically so provided, not left repulsion to it the advantage of ambiguity. If it intended to regard 'the possibility of a risk or the actual risk' in flying as determination of compensation or as a factor in compensation, as the United States urges, care would have been taken, not, we will say, against its abuse, but against its use, putting the officer's life in peril many times a day. If that were reasonable in expectation, the other contention is condemned; that is, that the officer is entitled to compensation only when he engages in flights and for reasonable intervals between them. The contention gives no animation to prepare for the duty and its hazards.

    Congress naturally supposed that there would be no detail to aircraft duty, unless there was requirement or use for it, and, when either ceased, the detail would be revoked; but, if made, and not revoked, its duration constituted a service for which the officer must keep prepared, and to which, therefore, the compensation was by the statute assigned.

    Judgment affirmed.

    Footnotes

    [ Footnote 1 ] 'Hereafter enlisted men in the Navy and Marine Corps, while detailed for duty involving actual flying in aircraft, shall receive the pay, and the permanent additions thereto, including allowances, of their rating and services or rank and service, as the case may be, plus fifty per centum increase thereof.'

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