A post chaplain in the Army of the United States, commissioned
by the President under the Act of March 2, 1867, c. 145, § 7,
is entitled, in computing his longevity pay under the Act of July
15, 1870, c. 294, § 24 (Rev.Stat. § 1262), to be credited
with his service as a chaplain, employed by the officers composing
the council of administration at a military post approved by the
Secretary of War, under the Act of July 5, 1838, c. 162, § 18,
and the acts supplementary thereto.
This was a petition filed in the Court of Claims by James A. M.
La Tourrette, and prosecuted after his death by his executrix, to
recover the sum of $333.75, for longevity pay as a chaplain in the
Army from February 7, 1885, to April 26, 1887, inclusive. The facts
found by the Court of Claims were in substance as follows:
On February 6, 1865, the claimant was elected and appointed
chaplain for the post of Fort Columbus, New York Harbor, by the
council of administration at the post under the provisions of the
Act of July 5, 1838, c. 162, § 18, and of the supplementary
acts of July 7, 1838, c.194, § 2, March 2, 1849, c. 83, §
3, and February 21, 1857, c. 55, § 2, 5 Stat. 259, 308; 9
Stat. 351; , 11 Stat. 163.
The action of the post council was approved by the Secretary of
War, and the claimant's appointment of employment as post chaplain
was subsequently announced in a special order of the War Department
of May 19, 1866, as follows:
"Fort Columbus, New York Harbor, is announced as a chaplain post
to date from February 6, 1865, in place of Fort Wood, New York
Harbor, discontinued as such from that date. The Reverend James A.
M. La Tourrette is announced as post chaplain to Fort Columbus, New
York Harbor, from February 6, 1865. He will, in connection with his
present duties at Fort Columbus, perform also those of Fort Wood,
as heretofore. "
Page 151 U. S. 573
Under that appointment, he served until April 6, 1867, but
received no commission. It did not appear that he was required to
take an oath of office, his employment was not for any fixed or
definite time, and he was paid for services on the certificate of
the post commander.
Under the provisions of the Act of March 2, 1867, c. 145, §
7, 14 Stat. 423, he was nominated by the President to the Senate
for appointment as post chaplain March 18, confirmed by the Senate
April 3, commissioned accordingly by the President April 6, to rank
from April 3, and formally accepted the appointment April 27, 1867.
On March 23, 1890, he was retired from active service as post
chaplain under the Act of June 30, 1882, c. 254, 22 Stat. 118.
His service as chaplain under the Act of July 5, 1838, together
with his service as post chaplain under the Act of March 2, 1867,
was continuous and uninterrupted from February 6, 1865, to March
23, 1890.
He was not borne on the Army register before 1867. In the
registers from 1867 to 1878, inclusive, his name appears, with the
date of "original entry into service," April 3, 1867. The registers
from 1879 to 1881, inclusive, refer to that date as "date of
commission," and these registers, as well as those for 1882 and
since, record the beginning of his service as chaplain of a post
February 6, 1865, and as post chaplain, April 3, 1867, accepted
April 27, 1867.
From April 27, 1867, to March 23, 1890, he was paid his salary
with longevity pay, computed for the most part by crediting him
with his service from February 6, 1865, but since February 6, 1885,
with his service from April 27, 1867, only. If he is to receive
credit for the time from February 6, 1865, to April 26, 1867, the
longevity pay due him is the sum of $333.75 more than he has
received.
On these facts, the Court of Claims decided, as a conclusion of
law, "that the decedent, during his service from February 6, 1865,
to April 26, 1867, was in the Army of the United States within the
meaning of the law," and therefore entitled to recover the sum
claimed, and gave judgment accordingly. The United States appealed
to this Court.
Page 151 U. S. 574
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
This claim for longevity pay is based on the provision of the
Act of July 15, 1870, c. 294, § 24, reenacted in the Revised
Statutes, by which
"there shall be allowed and paid to each commissioned officer
below the rank of brigadier-general, including chaplains and others
having assimilated rank or pay, ten percentum of their current
yearly pay for each term of five years of service."
16 Stat. 320; Rev.Stat. § 1262.
"Service" in this statute evidently, as both parties admit,
means military service, and the question is whether the claimant
was in that service from February 6, 1865, to April 26, 1867.
This question is best answered by reading the provisions of
previous acts of Congress, referred to by counsel, which are as
follows, the significant words being printed below in italics:
By the Act of July 5, 1838, c. 162, § 18,
"it shall be lawful for the officers composing the council of
administration at any post from time to time, to
employ
such
person as they may think proper
to officiate as
chaplain, who shall also perform the duties of schoolmaster at
such post, and the
person so employed shall, on the
certificate of the commanding officer of the post
be paid
such sum
for his services, not exceeding forty dollars
per month, as may be determined by the said council of
administration,
with the approval of the Secretary of War,
and,
in addition to his pay, the said chaplain shall be
allowed four
rations per diem with
quarters and
fuel."
5 Stat. 259.
By the supplementary Act of July 7, 1838, c.194,
"the
posts at which chaplains shall be allowed shall be
limited to the number of twenty, and shall be first
approved by
the Secretary of War, and shall be confined to places most
destitute of instruction."
5 Stat. 308.
By the Act of February 11, 1847, c. 8, § 7,
"during the war
Page 151 U. S. 575
with Mexico, it shall be lawful for the officers composing the
councils of administration of the several regiments constituting a
brigade, either regular or volunteer, in the service of the United
States to employ some proper person to officiate as chaplain to
such brigade . . . provided that
the chaplains now attached to
the regular Army and stationed at different
military
posts may, at the discretion of the Secretary of War, be
required to repair to the Army in Mexico whenever a majority of the
men at the posts where they are respectively stationed shall have
left them for service in the field, and should any of
said
chaplains refuse or decline to do this when ordered so to do
by the adjutant-general,
the office of such chaplain shall be
deemed vacant, and the pay and emoluments thereof be
stopped."
9 Stat. 124.
By § 3 of the Act of March 2, 1849, c. 83, entitled "An act
to provide for an increase of the medical staff, and for an
additional number of
chaplains of the Army of the United
States," the provisions of the act of 1838 "are extended so as
to authorize the employment of ten additional
chaplains for
military posts of the United States." 9 Stat. 351.
By § 1 of the Act of February 21, 1857, c. 55, entitled "An
act to increase the pay of
officers of the Army," the pay
of commissioned officers of the Army is increased, and by § 2,
it is provided
"that the Secretary of War be authorized, on the recommendation
of the council of administration, to extend
the additional pay
herein provided to any person
serving as chaplain at any
post of the Army."
11 Stat. 163.
By the Act of July 17, 1862, c. 200, § 9,
"the compensation of
all chaplains in the regular or
volunteer service or Army hospitals shall be one hundred
dollars per month and two rations a day when on duty; . . .
chaplains employed at the military posts called 'chaplains'
posts' shall be required to reside at the posts, and
all
chaplains in the United States service shall be subject to such
rules in relation to leave of absence from duty as are
prescribed for
commissioned officers of the United States
Army
stationed at such posts."
12 Stat. 595.
By the Act of April 9, 1864, c. 53, § 1, "the
rank of
chaplain
Page 151 U. S. 576
without command
in the regular and volunteer service of the
United States is hereby recognized;" by § 2, the pension
Act of July 14, 1862, c. 166, is "so amended as to include
chaplains in the regular and volunteer forces of
the
Army;" and by § 3,
"it shall be the duty of
chaplains in the military service
of the United States to make monthly
reports to the
adjutant-general of the Army,
through the usual military
channels, of the moral condition and general history of the
regiments, hospitals or
posts to which they may be
attached."
13 Stat. 46.
These acts, all of which were passed before the period in
question, unequivocally show that such chaplains as the claimant
was during that period, being employed, by the officers composing
the council of administration at the post to officiate as chaplain,
and actually serving as such at a military post of the United
States, with the approval of the Secretary of War; receiving
monthly for their services a sum approved by him, and allowed, in
addition to their pay, rations and quarters; subject to the same
rules as to leave of absence from duty as commissioned officers of
the Army; required to report monthly to the adjutant-general of the
Army through the usual military channels, and called indifferently
"chaplains attached to the regular Army and stationed at military
posts," or "chaplains of the Army of the United States," should be
considered, according to the understanding and intention of
Congress, as holding the office and rank of chaplain in the Army,
and consequently as in the military service, within the meaning of
the longevity pay act.
Moreover, the Act of March 2, 1867, c. 145, § 7, under
which the claimant was afterwards commissioned, by providing that
"the post chaplains now in service," as well as those thereafter to
be appointed, should be commissioned by the President, distinctly
recognized that the former were already in "service," which, in
this act, as in the longevity pay act, clearly means the military
service of the United States. 14 Stat. 423.
Judgment affirmed.
