United States v. Freeman
44 U.S. 556 (1845)

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U.S. Supreme Court

United States v. Freeman, 44 U.S. 3 How. 556 556 (1845)

United States v. Freeman

44 U.S. (3 How.) 556

Syllabus

Statutes in pari materia should be taken into consideration in construing a law. If a thing contained in a subsequent statute be within the reason of a former statute, it shall be taken to be within the meaning of that statute.

And if it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, this will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.

The meaning of the legislature may be extended beyond the precise words used in the law from the reason or motive upon which the legislature proceeded, from the end in view, or the purpose which was designed; the limitation of the rule being that to extend the meaning to any case, not included within the words, the case must be shown to come within the same reason upon which the lawmaker proceeded, and not a like reason.

A brevet field officer of the marine corps is not entitled by law to brevet pay and rations, by reason of his commanding a separate post or station, if the force under his command would not entitle a brevet field officer of infantry of a similar grade to brevet pay and rations.

Page 44 U. S. 557

The act of 1834, chap. 132, does not repeal the 1st section of the act of 1818, regulating the pay and emoluments of brevet officers.

The 5th section of the Act of 30 June, 1834, is a repeal of the joint resolution of the two houses of Congress of 25 May, 1832, respecting the pay and emoluments of the marine corps.

By force of the army regulation No. 1125, authorizing the issues of double rations to officers commanding departments, posts, and arsenals, a brevet field officer of marines is entitled to double rations. But the fact must be shown that he had such a command of a post or arsenal at which double rations had been allowed according to the army regulations.

The fact of appropriations having been made by Congress for double rations does not determine what officers are entitled to them.

A brevet field officer of the marine corps, commanding a separate post, without a command equal to his brevet rank, is not entitled to brevet pay and emoluments. But if such brevet officer is a captain in the line of his corps and in the actual command of a company, whether he is in the command of a post or not, he is entitled to the compensation given by the 2d section of the act of 2 March, 1827.

This case was to test the right of the defendant in error, who was also the defendant below, to certain pay, allowances, and emoluments which he claimed as being an officer of the marine corps. The questions which were certified to this Court were the following:

"1. Whether a brevet field officer of the marine corps is by law entitled to receive the pay and rations of his brevet rank by reason of his commanding a separate post or station, although the force under his command should not be such as would by law, or by such regulations as have in this respect and for the time the force of law, entitle a brevet field officer of infantry of a similar grade to brevet pay and rations."

"2. Whether the provision respecting brevet pay and rations in the third section of the Act of 1818, chap. 117, is repealed by the act of 1834, chap. 132."

"3. Whether by force of the act of 1834, chap. 132, the joint resolution of the two houses of Congress of 25 May, 1832, respecting the pay and emoluments of the marine corps, is repealed."

"4. Whether by force of the army regulation numbered 1125, authorizing the issues of double rations to officers commanding departments, posts, and arsenals, a brevet field officer of marines, commanding a separate post or station, is entitled to double rations."

"5. Whether the additional fact of appropriations having been made by Congress for such double rations, entitles such marine officer to receive the same for the years for which such appropriations are made."

"6. Whether a brevet field officer of the marine corps, commanding a separate post, and receiving his brevet pay and emoluments, but being a captain in the line, is entitled to the ten dollars

Page 44 U. S. 558

a month additional compensation for responsibility of clothing &c., under the act of 1834, chap. ___, applying to the marine corps the act of 1827, chap. 199?"

There was a statement of facts agreed upon in the court below, the only parts of which that bear upon the certified questions are the following:

"It is further agreed that Colonel Freeman was commissioned a captain in the line of the marine corps on 17 July, 1821, and on that lineal rank he was commissioned a lieutenant-colonel by brevet on 17 July, 1831, and on 30 June, 1834, he was commissioned a major in the line of the marine corps."

"Colonel Freeman files an account, in setoff against the United States, of $1,013.93, for brevet pay and rations while in command on the Boston station, the same being a separate station or detachment, under the provision of the 3d section of an Act of Congress of 16 April, 1814, for the augmentation of the marine corps. Said amount extends from 30 June, 1834, to 1 April, 1842, and has been presented to and disallowed by the fourth auditor."

"Said Freeman files an account also of $1,669 for double rations while in command on the Boston station, between 30 June, 1834, and 1 April, 1842, under a joint resolution of Congress of 25 May, 1832; which account has also been presented to and disallowed by the fourth auditor."

"Said Freeman files also an account of $354.69 for the responsibilities of clothing &c., while a captain in the line of the marine corps, and in command of the marines on the Boston station, from 17 July, 1831, to 30 June, 1834, under an act of Congress of 30 June, 1834, making certain allowances &c., to the captains and subalterns of the marine corps, as to officers of similar grades in the army, under an act of 2 March, 1827; which account has likewise been presented to and disallowed by the fourth auditor of the Treasury, on the ground that the defendant received the pay of a grade higher than that of captain."

"It is further agreed that double rations have been paid heretofore and up to 30 June, 1834, to the officers of the marine corps, in the manner and as stated in the letter of the fourth auditor of date 27 April, 1842, and marked B, and annexed; also that estimates and appropriations were made, as stated in said letter, since 1834."

"Upon the foregoing facts, the case is submitted to the court; the accounts of the said several claims of the said Freeman to be adjusted hereafter by the officers of the Treasury, if the same, or any portion of them, are found by the court to be legally due."

"FRANKLIN DEXTER, U.S. Dis. Att'y"

"W. H. FREEMAN"

Page 44 U. S. 559

The laws will be stated which bear upon each of the three items into which the account is divided, viz., 1, Pay; 2, Rations; 3, Clothing.

1. As to pay.

On 6 July, 1812, 2 Story 1278, Congress passed an "act entitled an act making further provision for the army of the United States, and for other purposes," the 4th section of which was as follows:

"That the President is hereby authorized to confer brevet rank on such officers of the army as shall distinguish themselves by gallant actions, or meritorious conduct, or who shall have served ten years in anyone grade, provided that nothing herein contained shall be so construed as to entitle officers so breveted to any additional pay or emoluments except when commanding separate posts, districts, or detachments, when they shall be entitled to and receive the same pay and emoluments to which officers of the same grade are now, or hereafter may be, allowed by law."

On 16 April, 1814, Congress passed an act, 2 Story 1414, "authorizing an augmentation of the marine corps and for other purposes," the 3d section of which was exactly similar to the above, except that "officers of the marine corps" were substituted for "officers of the army," and that in the proviso the words "commanding separate stations or detachments" were substituted for "commanding separate posts, districts, or detachments."

On 16 April, 1818, an act was passed, 3 Story 1672, "regulating the pay and emoluments of brevet officers," the 1st section of which was as follows:

"Be it enacted &c., that the officers of the army who have brevet commissions shall be entitled to, and receive, the pay and emoluments of their brevet rank when on duty and having a command according to their brevet rank, and at no other time."

In 1825, regulations for the army were issued; the 1124th section was as follows:

"Brevet officers shall receive the pay and emoluments of their brevet commissions, when they exercise command equal to their brevet rank; for example, a brevet captain must command a company; a brevet major and a brevet lieutenant-colonel, a battalion; a brevet colonel, a regiment; a brevet brigadier-general, a brigade; a brevet major-general, a division."

On 30 June, 1834, Congress passed an act "for the better organization of the United States marine corps," 4 Story 2383. After increasing the number of officers and privates, the 5th section enacted:

"That the officers of the marine corps shall be entitled to, and receive, the same pay, emoluments, and allowances, as are now, or hereafter may be, allowed to officers of similar grades in the infantry of the army, except the adjutant and inspector, who shall,"

&c.

Page 44 U. S. 560

The 7th section provided that "the commissions of the officers now in the marine corps shall not be vacated by this act," &c.

The 9th section repealed so much of the 4th section of the act of the 6th of July as authorized the President to confer brevet rank on such officers of the army or of the marine corps as shall have served ten years in anyone grade.

The 10th section repealed all acts or parts of acts inconsistent therewith.

In 1836, another set of army regulations was issued, the forty-eighth article of which contained the following:

"Officers who have brevet commissions shall be entitled to receive their brevet pay and emoluments, when on duty, under the following circumstances: "

"A brevet captain, when commanding a company."

"A brevet major, when commanding two companies, or when acting as major of the regiment."

"A brevet lieutenant-colonel, when commanding at least four companies, or when acting as lieutenant-colonel of the regiment."

"A brevet colonel, when commanding nine companies of artillery, or ten of infantry or dragoons, or a mixed corps of ten companies, or when commanding a regiment."

"A brevet brigadier-general, when commanding a brigade of not less than two regiments or twenty companies."

"A brevet major-general, when commanding a division of four regiments or at least forty companies."

"A brevet officer, when assigned by the special order of the Secretary of War to a particular duty and command, according to his brevet rank, although such command be not in the line, provided his brevet allowances are recognized in the order of assignment."

"To entitle officers to brevet allowances while acting as field officers of regiments according to their brevets, they must be recognized at general headquarters as being on such duty, and the fact announced accordingly in general orders."

The laws relating to rations are the following:

2. Rations.

On 3 March, 1797, 1 Story 460, Congress passed an act to amend and repeal, in part, the act entitled "An act to ascertain and fix the military establishment of the United States," the 4th section of which declared that "to each officer, while commanding a separate post, there shall be allowed twice the number of rations to which they would otherwise be entitled."

On 16 March, 1802, 2 Story 831, an act was passed "fixing the military peace establishment of the United States," the 5th section of which designated the number of rations to which each officer should be entitled, and then added as follows, viz.:

"to the commanding officers of each separate post, such additional number of rations as the President of the United States shall, from time

Page 44 U. S. 561

to time, direct, having respect to the special circumstances of each post."

On 25 May, 1832, 4 Story 2333, Congress passed a joint resolution as follows:

"Resolved &c., that the pay, subsistence, emoluments, and allowances of officers, noncommissioned officers, musicians, and privates of the United States marine corps, shall be the same as they were previously to the 1st of April, 1829, and shall so continue until they shall be altered by law."

In 1834, the act was passed which has already been mentioned under the head of "Pay."

3. Clothing.

On 2 March, 1827, Congress passed an act, 3 Story 2057, the 2d section of which was as follows:

"That every officer in the actual command of a company if the army of the United States shall be entitled to receive $10 per month, additional pay, as compensation for his duties and responsibilities, with respect to the clothing, arms, and accoutrements of the company, whilst he shall be in the actual command thereof. "

Page 44 U. S. 563

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