United States v. Henry
84 U.S. 405 (1873)

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U.S. Supreme Court

United States v. Henry, 84 U.S. 17 Wall. 405 405 (1873)

United States v. Henry

84 U.S. (17 Wall.) 405

Syllabus

1. An officer who shows that he received a commission from the proper source, and who serves and is recognized as such officer by his superiors until his regiment is mustered out, and who presented himself at the proper time and place to be mustered in, and was refused, makes out a prima facie case for full pay under the joint resolution of Congress of July 26, 1866, "for the relief of certain officers of the army."

2. It does not rebut this prima facie case to prove that the officer who refused to muster him in alleged that he was not entitled to such muster, because the company to which he was assigned its lieutenant was below the minimum in numbers.

3. Such a statement is not a finding of the fact by the Court of Claims that the company was reduced below the minimum.

4. Nor does the fact, if found, bring the case within section twentieth of the Act of March 3, 1863, forbidding the appointment of officers to a regiment when that regiment has been reduced below the minimum number allowed for regiments.

A joint resolution of Congress, approved July 26, 1866, [Footnote 1] resolves:

"That in every case in which a commissioned officer actually entered on duty as such commissioned officer, but, by reason of being killed in battle, capture by the enemy, or other cause beyond his control, and without fault or neglect of his own, was not mustered within a period of not less than thirty days, the pay department shall allow to such officer full pay and emoluments of his rank from the date on which such officer actually entered on such duty as aforesaid, deducting from the amount paid in accordance with this resolution all pay actually received by such officer for such period."

An act of Congress of prior date, March 3, 1863, [Footnote 2] had enacted in its twentieth section:

Page 84 U. S. 406

"That wherever a regiment is reduced below the minimum number required by law, no officers shall be appointed in such regiment beyond those necessary for the command of such reduced number."

In this state of statutory law, Anthony Henry, who had been duly commissioned as second lieutenant in the second regiment of Ohio volunteer infantry by the governor of that state -- which commission he accepted on the 15th day of August, 1863 -- and who actually served and performed the duties of that office from that day until October 10, 1864 (when he was mustered out of service with his regiment), and was during all that time recognized as such officer by his superior officers, and commanded the company in several battles, but had been paid only the amount due to the rank and service of first sergeant of infantry -- filed a claim in the court below against the United States for $1,118, the pay and allowance due to a second lieutenant.

The Court of Claims found as facts:

"That upon receipt of his commission from the governor of Ohio, the claimant presented himself for muster, as second lieutenant, to the proper mustering officer of his division, but was refused such muster, the mustering officer alleging that Company D, to which the claimant was assigned, was reduced below the minimum number, and that therefore he was not entitled to be mustered; that the claimant repeatedly offered himself for muster to the proper officer during the time aforesaid, but without success, and that he was always ready and anxious to be so mustered, and that his failure to be so mustered arose from a cause beyond his control, and without fault or neglect of his own."

The Court of Claims found in favor of the claimant, and decreed to him a second lieutenant's pay. The United States appealed.

Page 84 U. S. 407

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