Under the Act of Congress of February 24, 1905, 33 Stat. 806, c.
777, directing the accounting officers to settle and adjust all
back pay and emoluments that would have been due to an officer had
he remained in the army for a period that he was out of the army
after an enforced resignation from that time until his
reinstatement,
held that, under such a statute:
The duties of accounting officers are administrative and not
judicial, and as to whatever rights arose under the act as to its
construction, the Court of Claims had jurisdiction to
determine.
In order to construe the statute and make the redress as
complete as Congress intended, reports of the committees of both
houses having the matter in charge may be referred to.
Public moneys are not appropriated as mere gifts, and such an
act will not be regarded as a simple gratuity.
The words "all back pay and emoluments" include forage, rations,
and pay for servants to which the officer would have been entitled
under the statutes had he remained in the army, and, in adjusting
under the statute, those items should not have been excluded
because the officer was not actually in service of the United
States.
An act of Congress will not be construed as giving a right and
taking it away at one and the same instant, nor will the conditions
making it necessary be made a reason for defeating it.
The word " all " excludes the idea of limitation.
45 Ct.Cl. 95, reversed.
The facts, which involve the amount due to a reinstated officer
of the United States Army for back pay and emoluments under an act
of Congress and the proper method of computing the same, are stated
in the opinion.
Page 226 U. S. 376
MR. JUSTICE McKENNA delivered the opinion of the Court.
The question in the case is the extent of relief to which
appellant is entitled under the following act of Congress, passed
February 24, 1905:
Page 226 U. S. 377
"That the proper accounting officers be, and they are hereby,
directed to settle and adjust to Sarah K. McLean, widow of the late
Lieutenant Colonel Nathaniel H. McLean, all back pay and emoluments
that would have been due and payable to the said Nathaniel H.
McLean as a major from July twenty-third, eighteen hundred and
sixty-four, to the date of his reinstatement, March third, eighteen
hundred and seventy-five, and that the amount found due by said
adjustment is hereby appropriated, to be paid out of any money in
the Treasury not otherwise appropriated."
33 Stat. 806, c. 777.
McLean entered the United States Military Academy July 1, 1844,
graduated therefrom, and was appointed brevet second lieutenant in
the Army July 1, 1848, and served until the year 1864, when, having
attained the rank of major and assistant adjutant general, he
resigned, his resignation being accepted July 23, 1864. By Act of
March 3, 1875, 18 Stat. c. 187, p. 515, Congress authorized the
President to appoint Major McLean to fill the first vacancy which
might occur in the lowest grade of the adjutant general's
department, "or, if he shall deem it best, to reinstate and retire
him with the rank to which he would have attained in service at the
date of the passage of this act." Under this authority, Major
McLean was reinstated and placed on the retired list as lieutenant
colonel and assistant adjutant general, to rank from March 3, 1875.
He continued in that rank until his death, which occurred June 28,
1884. From the date of the acceptance of his resignation, July 23,
1864, to the date of his reinstatement, March 3, 1875, he received
no pay. This interval is provided for by the Act of February 24,
1905,
supra.
Under that act, appellant presented a claim to the Auditor of
the War Department, who allowed her pay and personal subsistence
which would have been due her husband from the date of the
acceptance of his resignation,
Page 226 U. S. 378
July 23, 1864, to the date of his reinstatement, March 3, 1875,
but disallowed a claim made by her for forage and servants' pay.
The disallowance was confirmed by the Comptroller of the Treasury.
This action was then brought in the Court of Claims. The court
sustained the accounting officers as to forage and servants' pay,
saying:
"As an officer of his grade, plaintiff's intestate was entitled
to two servants and to forage for two horses had he remained in the
military service. But the officer resigned, and such voluntary
retirement from the service operated to deprive the officer, by his
own act, of the opportunity to draw the allowances incident to the
keep of two servants and two horses."
As to those two items, the petition was dismissed. The court,
however, decided that the claim for a ration is analogous to
longevity pay and is on a different basis. The court said:
"The officer, by the Act of reinstatement, became entitled to
compensation for and during the whole period of service, with the
consequent ration increase incident to the services supposed to
have been rendered for the time set forth in the petition. It is
all, strictly speaking, 'pay proper.' . . . This entitles the
plaintiff to $682.75 in addition to the amount allowed by the
accounting officers."
Judgment was ordered and entered for that sum. 45 Ct.Clms.
95.
The jurisdiction of the Court of Claims to entertain the action
was attacked in that court and is attacked here, the contention
being that the act for the relief of appellant "constituted the
accounting officers, and not the courts, the tribunal to settle the
accounts." The court ruled against the contention, and rightly. It
is not necessary to repeat its reasoning. The duties of the
accounting officers were, as the court said, administrative, not
judicial, and as the rights of appellant arose under an act of
Congress, the court had jurisdiction to determine them.
Medbury
v. United States, 173 U. S. 492.
Upon the merits, certain acts of Congress besides that
Page 226 U. S. 379
for the relief of appellant are pertinent to be considered.
The Act of July 17, 1862, 12 Stat. 594, c. 200, provides that
majors shall be entitled to draw forage in kind for two horses, and
that in case forage in kind cannot be furnished by the proper
department, officers may commute the same according to existing
regulations. The Act of April 24, 1816, § 12, 3 Stat. 299, c.
69, fixes the money value of forage at $8 per month for each horse
when the same shall be commuted. But it is provided "that neither
forage nor money shall be drawn by officers but for horses actually
kept by them in the service." The Act of July 15, 1870, 16 Stat.
320, c. 294, provides a new pay system for officers of the Army,
abolishing commuted forage and all such emoluments by including
them in pay proper.
Under the Acts of March 30, 1814, §§ 9 and 10, 3 Stat.
114, c. 37, April 24, 1816,
supra, and March 3, 1865, 13
Stat. 487, c. 79, and the Army Regulations in force from July 24,
1864, to July 14, 1870, there would have been due and payable to
McLean, as an emolument in the grade of major, servants' pay and
allowance for as many servants, not exceeding two, as were actually
kept by him at his expense at the rate of pay, ration, and clothing
allowance of a private soldier in the Army for each servant so
kept. By other acts of Congress, commissioned officers other than
general officers were entitled to receive one additional ration
per diem for every five years of service, which had a
commuted value at various sums until July 28, 1867, when it became
30 cents.
The Court of Claims found that from the date of the acceptance
of McLean's resignation until September 23, 1864, he had one
servant in his employment on the trip from Portland, Oregon, the
place of his resignation, to his home in Cincinnati, Ohio -- time,
two months. From the latter date to July 14, 1870, inclusive, he
had servants in
Page 226 U. S. 380
his private employ, but how many is not satisfactorily
established from the evidence. The servants were not enlisted men
of, or connected with, the Army. From the dates before mentioned,
he owned two horses, one used occasionally for a saddle horse, but
they were generally used for his private carriage.
The question, then, is whether, under the facts as found and the
Acts of Congress above stated in regard to officers' pay and
allowance and the act for the relief of appellant, she is entitled
to the commuted value of forage which would have been due and
payable to her husband as a major from September 24, 1864, to July
14, 1870, and servants' pay. Urging the negative of the question,
and in support of the decision of the Court of Claims, it is
contended that, for the period specified, McLean was not in the
service of the United States, and therefore did not have, and could
not have had, any horses or servants "actually kept in service" by
him, as required by the Act of April 24, 1816,
supra. To
the contention appellant opposes the purpose and words of the
statute. She asserts that the prompting of the act was to repair an
injustice done to Major McLean, and, to support the assertion, she
refers to the reports of the committees of the House of
Representatives and that of the Senate, Fifty-third Congress. The
reference is justified (
Oceanic Steam Navigation Co. v.
Stranahan, 214 U. S. 320,
214 U. S. 333;
Northern Pacific Co. v. Washington, 222 U.
S. 370,
222 U. S. 380),
and gives support to the contention that the circumstances which
preceded and provoked Major McLean's resignation appealed to
Congress, and, to redress its consequences, Congress authorized his
reinstatement, and, to make it complete, passed the Act of February
24, 1905.
It certainly may be assumed that the act was not a simple
gratuity. Public moneys are not appropriated as mere gifts. They
are appropriated in recognition and reward of merit or in
recompense for service, or, as it may
Page 226 U. S. 381
be inferred in the present case, reparation for injustice done.
Keeping this in mind, the extent of the relief granted to appellant
may be determined. Indeed, the plain directness of the act of
Congress leaves nothing to interpretation. The proper accounting
officers are directed to settle and account to her "all back pay
and emoluments that would have been due and payable" to her husband
as a major of the United States Army from July 23, 1864, to March
3, 1875. The words are all-comprehensive. They embrace all the
compensation, perquisites, and dues to which he was entitled as an
officer. About back pay there is no question. The accounting
officers allowed the pay of the designated rank and the personal
subsistence which would have been due and payable to the deceased
officer. The Court of Claims extended the definition of "pay"
somewhat farther, and included in it "ration increase incident to
the service supposed to have been rendered for the time set forth
in the petition." And, necessarily, for "service supposed" is the
attribution of the act of Congress, not service rendered or
possible to be rendered. But the supposition which is made
efficient to give pay is sought to be halted at "emoluments," and
the contention is advanced, as we have seen, that they must be
considered as including only allowances or reimbursement for
expenses actually incurred while in the service of the United
States. The contention is not justified. The act, in order to make
its relief complete, treats the officer and compensates him as
though he had been in actual service from the date of his
retirement to the date of his reinstatement. It is in this aspect
that we must apply it. He is to be regarded for the time stated to
have been in the Army of the United States, entitled to pay,
entitled to emoluments, the latter as much as the former. The words
of the statute make no distinction between them. Whatever is
directed to be settled -- pay or emoluments -- is for compensation,
not for actual service, but for attributed
Page 226 U. S. 382
service. This, we repeat, is the scheme of the statute and the
test of its application. It is difficult to deal with a distinction
between pay and emoluments. Both are rewards or compensation, the
one no more than the other, for "service supposed." To say that one
is certain and the other contingent has no meaning in the situation
of Major McLean. He could not have performed the condition upon
which either depended under the then-existing law, and to
distinguish between them notwithstanding is to enter a maze of
irrelevant considerations. The enactment is -- and we return to it
as its own best interpreter --
"that the proper accounting officers be, and they are hereby,
directed to settle and adjust to Sarah K. McLean, widow of the late
Lieutenant Colonel Nathaniel H. McLean, all back pay and emoluments
that would have been due and payable"
to him "as major, from July 23, 1864, to the date of his
reinstatement, March 3, 1875. . . ." It is manifest that the
supposition of service by the officer is attributed to both pay and
emoluments. Under that supposition, what essential difference is
there between them? Pay and emoluments are but expressions of value
used to give complete recompense to a deserving officer. Their
association was deliberate; emoluments were additive to pay, and
the direction as to them is as substantive as the direction as to
it, and qualified by no other condition. Of what consequence, then,
how they may be defined? They may be called "indirect or contingent
remuneration," as they have been called; it may be said, as it has
been said, that "they are sometimes in the nature of compensation
and sometimes in the nature of reimbursement." But, however they be
defined, Congress has granted them, and advisedly, knowing Major
McLean's situation, knowing that they included allowance for
servants and forage for horses, and knowing that, while the
servants and horses could not have been used by him in the service
of the United States, they could
Page 226 U. S. 383
have been used, as they were used, and ascribed to that service.
With this knowledge and with full understanding of what it was
doing, Congress directed the accounting officers "to settle and
adjust all back pay and emoluments." To decide otherwise is to say
that Congress gave a right and took it away at one and the same
instant, or, in some confusion of mind, intended to withhold it by
using the aptest word to confer it.
The government realizes the situation, and attempts to explain
or escape it. Its argument is somewhat peculiar. Its contention is
that Major McLean, by his resignation, "must be considered as
having intentionally [and the word is especially emphasized] placed
himself without the service of the United States," and so, having
voluntarily separated himself from the service, he was, and his
widow is, unable to furnish the certificate required by statute to
secure commutation for forage and servants' pay. Of course, he was
out of the Army. If he had not been out of the Army, there would
have been no necessity for the Act of Congress, and we cannot
consider the condition which made the act necessary a reason for
defeating it. The plain motive of the act exposes the weakness of
the contention. If we keep in mind the purpose which impelled the
enactment in behalf of Mrs. McLean, we will have no difficulty in
deciding how adequate its language is to accomplish it. "All back .
. . emoluments" are the words used. "All" excludes the idea of
limitation, and the word "emoluments" is the most adequate that
could have been used. It especially expresses the perquisites of an
office, and its use in conjunction with "pay" makes the restitution
of the statute complete.
Judgment dismissing the petition as to forage and servants'
pay reversed, and the case remanded for further proceedings in
accordance with this opinion.