538 Opinion of the Court It is clear, therefore, that the tax levied on distilled spirits, spirits, alcohol, or alcoholic spirits had attached within the meaning of section 1150 (c), since the distilled spirits had clearly come into "existence as such." The plaintiff contends, however, that although the tax may have attached, it was not payable until the spirits were withdrawn. This is true, but this only applies to distilled spirits withdrawn from bond. It does not apply to spirits which had not been deposited in a bonded warehouse. This is provided for by section 1150 (b), which provides: * ** * The tax upon any distilled spirits, removed from the place where they were distilled and not deposited in bonded warehouse as required by law, shall, when knowledge of such fact is obtained by the Commissioner, be assessed by him upon the distiller of the same, and returned to the collector, who shall immediately demand payment of such tax. * We do not think there can be any doubt that the tax is due under the provisions of this section and under the provisions of subsection (c) relating to the time the tax attaches, since there is no provision of law which has been called to our attention, or of which we are aware, that exempts a distiller from payment of the tax because the liquors were lost or destroyed in the process of being removed from the distillery to the cistern room. Since the tax attaches as soon as the spirits come into existence as such, it must be payable at some time thereafter. Since the spirits were never deposited in the bonded warehouse, the provision fixing the time of payment as the time when they were withdrawn therefrom cannot be applicable; but it seems clear to us that the case comes squarely within the provision for the payment of the tax when it is removed from a distillery to a place other than a bonded warehouse. We do not think that sections 1197 and 1198 have any application to the case at bar. Section 1197 relates to a failure to produce a certain percentage of the estimated capacity of the distillery and to a use of materials in excess of its capacity; and section 1198 provides relief for the distiller for a failure to produce this percentage of the distillery's capacity and for a use of excess materials, in certain cases. The assessment in the case at bar was not made under Opinion of the Court 93 C. Cls. section 1197, but under section 1150. But even if these sections were applicable, the plaintiff is entitled to relief under them for liquors lost only if they were lost without negligence on its part, and it is conceded that the loss here was occasioned solely by its negligence. This decision is in accord with the decision of the Seventh Circuit Court of Appeals in Joseph E. Seagram & Sons, Inc. v. Smith, 113 F. (2d) 357. Cf. Greenbrier Distillery Co. v. Johnson, 88 Fed. 638, where the whiskey was destroyed in a railway accident; Mason v. Peabody, Fed. Cas. Number 9250 (16 Fed. Cas. 1060), where they were lost by fire and leakage; and Hamilton v. Kentucky Distilleries & Warehouse Co., 288 Fed. 326, where they were stolen. Plaintiff's petition, therefore, will be dismissed. It is so ordered. JONES, Judge; LITTLETON, Judge; GREEN, Judge; and WHALEY, Chief Justice, concur. CHRISTOPHER S. LONG v. THE UNITED STATES [No. 43642. Decided May 5, 1941] On the Proofs Pay and allowances; meaning of the word "allowances" as used in special act.-Decided upon the authority of Sweeney v. United States, 82 C. Cls. 640, and Ralston v. United States, 91 C. Cls. 91; 311 U. S. 687. Same. The purpose of a special act providing for the retirement of an officer in the Navy is to take something out of the general class into which it would otherwise fall. Same. The primary meaning of the word "allowances" has always been construed by both the Navy and the Army to be rental and subsistence. The Reporter's statement of the case: King & King for the plaintiff. Miss Stella Akin, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. 544 Reporter's Statement of the Case The court made special findings of fact as follows: 1. On November 19, 1926, plaintiff accepted appointment as Acting Chaplain in the United States Navy, with the rank of Lieutenant, junior grade, his rank to date from November 6, 1926. 2. On June 30, 1930, the President of the United States approved an Act (46 Stat. 1951) reading as follows: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President is authorized to place Lieutenant (Junior Grade) Christopher S. Long, Chaplain Corps, United States Navy, upon the retired list of the Navy with the retired pay and allowances of that rank: Provided, That a duly constituted naval retiring board finds that the said Christopher S. Long has incurred physical disability incident to the service while on the active list of the Navy. 3. Subsequently, the plaintiff appeared before a duly constituted Naval Retiring Board, which found that he was permanently incapacitated for active service, and that his incapacity resulted from an incident of the service. 4. On October 3, 1930, the President approved the proceedings and findings of the Naval Retiring Board, and ordered plaintiff placed on the retired list of the United States Navy, with the rank of lieutenant, junior grade, Chaplain Corps, effective as of January 1, 1931. 5. On August 1, 1931, plaintiff had three dependents, consisting of a wife, Gwendoline Ellen Long, a daughter, Audrey Gwendoline Long, born April 11, 1922, and a son, John Stanley Long, born April 25, 1929. All of them have continuously resided with him since August 1, 1931, and have been dependent on him for their support. 6. Since being placed on the retired list, plaintiff has received the retired pay of an officer of his rank and length of service, but has received no rental or subsistence allow ances. 7. If entitled to the rental and subsistence allowances of an officer of his rank and length of service with dependents, from August 1, 1931, to June 30, 1938, the date of the latest available roll on file in the General Accounting Office, there Opinion of the Court 93 C. Cls. is due him the sum of $7,676.84, as computed by the General Accounting Office. Plaintiff's claim is a continuing one. 8. Plaintiff's petition was filed on August 31, 1937. If that portion of his claim which accrued prior to August 31, 1931, is barred by the statute of limitations, there should be deducted from the amount due him the sum of $96.00, representing rental and subsistence allowances for the period August 1 to August 30, 1931. The court decided that the plaintiff was entitled to recover. JONES, Judge, delivered the opinion of the court: This suit was instituted by the plaintiff to recover the rental and subsistence allowances of his rank, with dependents, from August 1, 1931. He had been commissioned as Acting Chaplain in the United States Navy with the rank of lieutenant, junior grade, effective as of the date of November 6, 1926. The special act under which the claim was filed was approved by the President of the United States on June 30, 1930 (46 Stat. 1951) and reads as follows: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President is authorized to place Lieutenant (Junior Grade) Christopher S. Long, Chaplain Corps, United States Navy, upon the retired list of the Navy with the retired pay and allowances of that rank: Provided, That a duly constituted naval retiring board finds that the said Christopher S. Long has incurred physical disability incident to the service while on the active list of the Navy. On October 3, 1930, the President approved the proceedings and findings of the Naval Retiring Board which had found that he was permanently incapacitated for active service and that his incapacity resulted from an incident of the service. The question in this case turns upon what is included in the term "retired pay and allowances of that rank” as used in the special act quoted above. It is contended by the plaintiff that the term "allowances" includes rental and subsistence. The defendant contends it does not include these items. 544 Opinion of the Court On two different occasions this court has passed upon the exact question at issue. Sweeney v. United States, 82 C. Cls. 640; Ralston v. United States, 91 C. Cls. 91, certiorari denied October 21, 1940, 311 U. S. 687. In each of these cases the language of the special act was substantially the same as in the case at bar. The questions were thoroughly considered and the court in each case reached the conclusion that the term "allowances" included rental and subsistence. While the question is not altogether free from doubt, the court gave cogent reasons for the conclusions reached. Those two decisions construing exactly similar language are controlling in the instant case. It is contended that the Congress in using the term “allowances" could not have meant to give to the plaintiff in this case provision that is not accorded officers of that rank generally. If that were true, why include the term "allowances” in the special act at all? Why not simply give him the privilege of going before the naval retirement board for retirement under the regular provision for retirement of officers generally? This would have given him the same retirement privileges provided for other officers. The question is not what the Congress should have done, but what it actually did. We have no right to pass on the wisdom of legislation. Our duty is simply to construe its practical effect, giving meaning to the language used and finding the intention of the Congress as disclosed by the language which it used in the special act. The very purpose of a special act is to take something out of the general class into which it would otherwise fall. The courts have no more right to invade the legislative field than the legislature has to invade the domain of judicial interpretation. Numerous articles in the code provide for allowances for officers of both the Navy and the Army. They cover a wide field, depending upon the facts and circumstances, the nature of the assignment, and the conditions under which they are applied. However, the primary meaning of the word "allowances" has always been construed by both the Navy and the Army to be rental and subsistence. In addi |