the appellee was retired, and their proper construction is the measure of his rights in this controversy. Section 1276 of the Revised Statutes was section 24 of the same statute and is in the following language: Officers retired from active service shall receive seventy-five per centum of the pay of the rank upon which they are retired.'

"Section 1275 provides that 'officers wholly retired from the service shall be entitled to receive upon their retirement one year's pay and allowances of the highest rank held by them, whether by staff or regimental commission, at the time of their retirement.'

"There is, therefore, a manifest difference in the two kinds of retirement, namely, retiring from active service and retiring wholly and altogether from the service.

"In the latter case such reward or compensation as Congress thought proper to bestow, namely, one year's pay and allowance, in addition to what was previously allowed, is given at once, and the connection is ended. In the former case the compensation is continued at a reduced rate, and the connection is continued, with a retirement from active service only."

The statute provides this increase of pay in terms for “each term of five years' service." This is not as a pension, and it can not therefore go to an "ex" or "ci-devant ” officer. And so Tyler's case presented the question squarely whether an officer retired from active service was an officer of the United States in the service of the United States while thus retired and not under detail to any specific duty.

Mr. Justice Miller said (pp. 245 and 246):

"The question is, therefore, whether an officer thus situated is in the service within the meaning of section 1262. That section allows an increase of pay for every five years' service. When the service ends there can be no increase on that account. As long as the service continues the increased pay applies whenever it amounts to five years.

"The law under which these officers are retired does not require their consent, nor does it require that the order for their retirement shall be based upon any absolute inca

pacity for further service. It may be based upon age, which, being fixed at a minimum of 62 years, by no means implies such incapacity. It may be based upon wounds received in battle, but the person retired for this cause may for many purposes be a very useful officer.

"The provisions of the statutes and the uniform treatment of these officers conform to this view and necessarily imply that, while not required to perform full service, they are a part of the Army, and may be assigned to such duty as the laws and regulations permit.

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Section 1094 of the revision designates specifically by a catalogue of 28 items of what the Army of the United States consists, and the twenty-seventh item of this enumeration is 'the officers of the Army on the retired list.' “They are then by law a part of the Army.

"Section 1256 enacts that officers retired from active service shall be entitled to wear the uniform of the rank on which they may be retired. They shall continue to be borne on the Army Register, and shall be subject to the Rules and Articles of War, and to trial by general courtmartial for any breach thereof.'

"Section 1259 declares that they may be assigned to duty at the Soldiers' Home; and section 1260 that they may be detailed to serve as professors in any college.

"It is impossible to hold that men who are by statute declared to be a part of the Army, who may wear its uniform, whose names shall be borne upon its register, who may be assigned by their superior officers to specified duties by detail as other officers are, who are subject to the Rules and Articles of War and may be tried, not by a jury, as other citizens are, but by a military court-martial, for any breach of those rules, and who may finally be dismissed on such trial from the service in disgrace, are still not in the military service.

"If Congress chose to provide for their qualified relief from active duty, and for a diminished compensation, it did not discharge them from their other obligations as part of the Army of the United States. And if, because they were not required to do full service thereafter, their

compensation was diminished by the statute 25 per cent, that is no reason why the accounting officers should add a further limitation of pay not found in any statute.

"We are of opinion that retired officers are in the military service of the Government, and that the increased pay of 10 per cent for each five years' service applies to the years so passed in the service after retirement as well as before."

As stated in People v. Duane, supra, the continuance of honor and emolument to officers retired from active service is in part in consideration of faithful service in the past, but it is also true, and that is the reason of the opinion in the Tyler case, ignored in the Duane case, that honor and emolument are continued to these officers, because they are continued in the service. They may not be always or ever actively engaged, their brothers on the active list may be sufficient for every present need of Government, but, like those brothers, they are always subject to the call of duty, and it is to be said of them, and was said of them in Tyler's case, that

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They also serve who only stand and wait."

In Wood v. United States (107 U. S. 414), the proposition decided was that the rank and pay of retired officers of the Army are subject to the control of Congress. In the course of the opinion it was said pertinently to the present question, "that, by section 1094 [R. S.] the officers of the Army on the retired list are a part of the Army of the United States, and, therefore, no one can be upon that list who is not an officer appointed in the manner required by section 2 of Article II of the Constitution; that an officer of any grade, on the active list, thus appointed, may be retired with a different rank from that which belongs to his office, when Congress so provides; that this is not to appoint him to a new and different office, but is to transfer him to the retired list, and to change his rank, while he holds the same office; and that in connection with this change of rank his pay may be changed."

In Badeau v. United States (130 U. S. 439), the eligibility of Army officers to civil office was under consideration.

Section 1222, R. S., provides:

"No officer of the Army on the active list shall hold any civil office, whether by election or appointment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to be an officer of the Army, and his commission shall be thereby vacated.”

This, it was held, did not apply to officers on the retired list because limited in terms to those "on the active list." Section 1223, R. S., provides:

"Any officer of the Army who accepts or holds any appointment in the diplomatic or consular service of the Government shall be considered as having resigned his place in the Army, and it shall be filled as a vacancy."

This, as it did not distinguish between them, was held to apply to officers on the retired as well as to officers on the active list. The court, having reference to the two sections quoted, said:

"No officer, whether on the active or retired list, could accept appointment in the latter (diplomatic or consular service) and remain an officer, but that rule was not applied to retired officers in the matter of holding a civil office."

This case is in direct contravention of the Duane case. It holds that a retired officer is an officer within the meaning of that word in statutes defining eligibility to civil office.

What constitutes service in the Army was considered in another aspect in United States v. Morton (112 U. S. 1). The question presented was whether the period passed by a cadet in study at West Point could be computed as "actual time of service in the Army," and the question was answered in the affirmative. The case of United States v. Tyler, supra, was cited approvingly, and the result of the two cases is that an officer of the Army is in the service of the Government from the time of his appointment as cadet until by resignation, death, or otherwise he is "wholly retired" therefrom.

The case of Geddes v. United States (38 Ct. Cl. 428), is cited as declaring a different rule. It arose under a very

different statute, viz, section 2, act of March 3, 1885 (23 Stat. 353, 356), which provides:

"That no part of the money herein or hereafter appropriated for the Department of Agriculture shall be paid to any person, as additional salary or compensation, receiving at the same time other compensation as an officer or employee of the Government."

Geddes was a captain of Infantry on the retired list. He served and received compensation as chief clerk of the Department of Agriculture. The question in the case was as to his right to receive pay as such clerk and as a captain on the retired list. The Court of Claims divided in opinion, three to two, the majority holding that he was. The majority said (p. 445):

“To bring a retired officer of the Army within the inhibition of the statute it is plain that he must be an 'officer or employee of the Government' within its intent; that his unofficial life after retirement must be regarded, within the intent of the statute, as service; that his three-fourths retired pay must be 'salary as compensation' for such service. It is well settled that an officer on the retired list owes no service to the Government in time of peace; that if called into service in time of war he returns thereby to the active list and receives full pay; that there is but one military office which he can hold, that of superintendent of the Soldiers' Home; and that his reduced retired pay is but an honorary form of pension to be paid him when, having reached a certain age, it is presumed that he is no longer well fitted to render active service to the Government."

This reasoning, as the minority hold, is in direct conflict with that of United States v. Tyler, supra, and can not be accepted as a correct statement of the law.

Other cases in the Court of Claims plainly indicate that this tribunal would hold an Army officer retired from active service to be, within the meaning of section 1782, an officer in the employ of the Government.

Section 5498, Revised Statutes, provides:

"Every officer of the United States, or person holding any place of trust or profit, or discharging any official func