319 Opinion of the Court specifically provides, on the contrary, that no additional compensation is to be paid. Under the terms of the contract it is provided that plaintiff is * * First. To carry said mail with celerity, certainty, and security, using therefor substantial regulation panel or screenbody motor vehicles, in sufficient number and of sufficient capacity to transport the whole of said mail, whatever may be its size, weight, or increase during the term of this contract; Paragraph three of the contract required plaintiff to furnish the necessary number of trucks which in the opinion of the postmaster "will be sufficient for the prompt and proper performance of the service including extra trucks to take the place of those that may be temporarily unserviceable, delayed waiting for trains, withdrawn from service for repairs, or required for special or advanced trips." The tenth paragraph of the contract provides that the plaintiff shall perform "without additional compensation, any and all additional service that the Postmaster General may order during the contract term." There is only one provision for extra compensation in the contract and that is in the event the site of the Post Office has been changed, and by reason of the change the distance to carry mail has increased more than a quarter of mile, but should the distance be less than one-quarter of a mile no extra compensation is to be received. There is no allegation in the petition indicating that the distance the mail had to be carried was ever increased or that the site of the Post Office was changed. Plaintiff made a claim to the Post Office Department for extra compensation on account of the increased mail. This claim was denied. Under the terms of the contract plaintiff agreed to carry all the mail during its term without extra compensation, and, under the provisions of the contract, no extra compensation was to be paid. This may appear to be a hard contract under the emergency situation, which may have arisen due to the increased Opinion of the Court 100 C. Cls. mail caused by the influx of soldiers in the territory, nevertheless, under the terms of the contract, there is no provision for payment. We are of the opinion that the petition does not state a cause of action and the demurrer is sustained. The petition is dismissed. It is so ordered. MADDEN, Judge; WHITAKER, Judge; and LITTLETON, Judge, concur. JONES, Judge, took no part in the decision of this case. Plaintiff's motion for leave to file an amended petition having been allowed, and such amended petition having been filed and the case having been submitted on defendant's demurrer to said amended petition, decision was rendered on December 6, 1943, in an opinion per curiam, as follows: This case comes to the court for a second time. The defendant interposed a demurrer to the original petition and the court sustained the demurrer for the reason that, admitting all the allegatins as true, it appeared that no violation of the contract, on which plaintiff sued, had been made by the defendant. Plaintiff has filed an amended petition and the defendant has again filed a demurrer. The amended petition adds no new matter and simply sets up the same contract. The suggestion is made that because the court used the expression in its opinion that under the extraordinary circumstances the contract "may appear to be a hard contract," the court should make a liberal interpretation of the contract's terms and conditions instead of a construction according to its actual plain terms and conditions. Courts are required to construe contracts legally and in accordance with their plain meaning and not according to what the Judges think should have been incorporated in the contracts. The parties to the contract agreed to its terms and conditions. The judicial branch of the Government cannot read 319 Syllabus into a contract terms which may morally be justified when the conditions have changed from those which existed when the contract was executed. Congress alone can grant relief under such circumstances. The amended petition fails to state a cause of action. The demurrer is sustained. The petition is dismissed. It is so ordered. JOSEPH IRVING MCMULLEN v. THE UNITED STATES [No. 45242. Decided December 6, 1943]* On the Proofs Conviction of Army officer operates as immediate and permanent removal from office, under Section 203, Title 18, U. S. Code.-Conviction of Army officer of violation of section 203, Title 18, United States Code, operated to remove him immediately and permanently from his office, although the judgment of conviction was appealed from, and on that appeal, reversed. Same; statute applicable to retired Army officer.-The statutory penalty of removal from office for violation of section 203, Title 18, U. S. Code, is applicable to an Army officer on the retired list as well as to an officer on active duty. Retirement privilege; period of retirement not included.-The years during which an Army officer was on the retired list may not be included to make up the required 40 years for retirement within the meaning of the Act of June 30, 1882 (U. S. Code, Title 10, section 942). Same; status of retired officer.-While a retired officer or soldier is, for some purposes, in the military service (United States v. Tyler, 105 U. S. 244; 16 C. Cls. 223, affirmed), he is not in the service within the meaning of section 942, Title 10, United States Code. Army officer separated by appointment and confirmation of successor.-Appointment by the President, and confirmation by the Senate, of a successor to an Army officer who had been separated from the service by conviction of violation of section 203, Title 18, U. S. Code, operated as an effective removal from office, although the judgment of conviction was later reversed. Same; "tenure of office" statutes.-The Supreme Court has repeatedly held that the "tenure of office" statutes, enacted by Congress during its controversy with President Johnson about Reconstruction policy, do not prevent the removal of an officer by the joint action *Plaintiff's petition for writ of certiorari denied March 27, 1944. Reporter's Statement of the Case 100 C. Cls. of the President in appointing his successor and the Senate in ratifying the appointment. See Blake v. United States, 14 C. Cls. 462; affirmed 103 U. S. 227; and Wallace v. United States, 55 C. Cls. 396; affirmed 257 U. S. 541. The Reporter's statement of the case: Mr. Leo R. Friedman for the plaintiff. Messrs. William E. Leahy and Nicholas J. Chase were on the briefs. Mr. Grover C. Sherrod, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. Mr. Louis R. Mehlinger was on the brief. The court made special findings of fact as follows: 1. Plaintiff's service record in the Army of the United States is as follows: April 11, 1896, to May 3, 1901, plaintiff served as a private, corporal, sergeant, and first sergeant of Troop H, 6th Cavalry. He was commissioned a second lieutenant of infantry to rank from February 2, 1901, the commission having been accepted May 4, 1901, and was transferred to cavalry May 22, 1901, to rank from February 21, 1901. He was retired on account of physical disability in line of duty September 20, 1906, and was recalled and served as a second lieutenant, U. S. Army, retired, on active duty March 28, 1916, to July 19, 1916. June 3, 1916, under provisions of the Act of March 4, 1915, (38 Stat. 1062, 1068) plaintiff was restored to active duty as a first lieutenant of cavalry to rank from September 21, 1908 commission accepted July 20, 1916, and on August 17, 1916, he was promoted to captain to rank from July 1, 1916. August 5, 1917, plaintiff was appointed a major of infantry, National Army, accepted August 23, 1917, and on September 30, 1919, he was honorably discharged as major of infantry, National Army, reverting to rank of captain, Regular Army. He was promoted to major in the Regular Army July 1, 1920, and was transferred to the Judge Advocate General's department August 18, 1921. He was promoted to lieutenant colonel June 17, 1921, and to colonel November 1, 1932, and was stationed at Washington, D. C., in the office of the Judge Advocate General. 323 Reporter's Statement of the Case 2. Plaintiff has been admitted to the bar in Idaho, California, the Court of Claims, and the Supreme Court of the United States. 3. May 14, 1934, a Board of Medical Officers duly convened at Walter Reed General Hospital, Army Medical Center, examined plaintiff, and on the 15th of May 1934 found that he was permanently incapacitated for active military service and recommended that he be brought before a retiring board for its action. By special orders No. 117, dated May 17, 1934, an Army Retiring Board was appointed pursuant to law to meet at Washington, D. C., for the purpose of examination of officers. By direction of the President of the United States of May 24, 1934, plaintiff was notified to appear before the Retiring Board and June 1, 1934, the Board maturely considered the case and found plaintiff incapacitated for active service, that the incapacity was permanent and was an incident of the service, and announced its finding to plaintiff. June 7, 1934, the Surgeon General of the United States addressed a memorandum to the Adjutant General of the United States, concurring in the findings of the Retiring Board, and recommended that plaintiff be retired. 4. Plaintiff on May 24, 1934, received a letter from the Adjutant General of the Army advising him what steps he might take since the Army Retiring Board had found him physically incapacitated for active service, to which letter plaintiff replied under date of June 4, 1934, that he had been requested by the Chief of Staff, General MacArthur, to continue on active duty until the first part of August, after which time plaintiff would be granted leave with a view to his retirement on August 31, 1934. 5. On July 19, 1934, plaintiff addressed the following communication to the Adjutant General concerning his proposed retirement: 1. Referring further to letter dated May 24th, 1934 (A. G. 201, McMullen, Joseph I. (5-16-34) Off.), and my reply dated June 4, 1934, I requested that I be ordered home to await retirement on August 1st, 1934, instead of being granted leave of absence. |