In computing the time of service which entitles an officer in
the army to longevity pay, service in a volunteer regiment is not
service "in the army of the United States" within the meaning of
the 15th section of the Act of July 5, 1838, c. 162, 5 Stat.
256.
This was a petition originally filed by Thomas W. Sweeny,
brigadier general on the retired list of the army, to recover the
sum of $182.05, charge against him by the United States, as to
which amount he was claimed to be in arrears and paid by him under
protest. The petitioner having died after the commencement of the
action, the appellee was admitted to prosecute the claim as
administratrix.
The case was argued and submitted in May, 1893, and the petition
dismissed. Claimant applied for a rehearing, which was granted, and
the case again submitted, and decided by a majority of the court in
her favor. Judgment was thereupon entered in the sum of $182.05,
and the court made a finding of facts, of which the following is a
summary:
On December 3, 1846, Thomas W. Sweeny, appellee's intestate,
being at that time a lieutenant in the Second New York Volunteers,
was mustered into the military service of the United States, under
the Act of May 13, 1846, authorizing the President to accept the
services of 50,000 volunteers for the prosecution of the existing
war between the United States
Page 157 U. S. 282
and Mexico. He served in this capacity until March 17, 1848,
when, having received a commission as second lieutenant in the
second United States infantry, he was mustered into the regular
service of the United States. Sometime after March 3, 1853, five
years from the date of his commission in the regular army, he
charged for and was paid his first longevity ration for five years'
prior service, under the Act of July 5, 1838. In September, 1855,
he charged in his voucher for pay one longevity ration for the
period from December 4, 1851 (five years from his muster into the
service as a volunteer), to March 3, 1853, and was paid this item
by the paymaster, October 15, 1855. The disbursement of this
longevity ration from December 4, 1851, to March 3, 1853, was never
approved or allowed by the accounting officers, but was disallowed
by them upon the first examination of the paymaster's voucher. The
matter was reported by the Secretary of War to the Second
Comptroller, who, on July 4, 1856, filed a written opinion to the
effect that the time spent in the military service as a volunteer
under the Act of May 13, 1846, could not be counted in the
longevity rations under the Act of July 5, 1838. In accordance with
this decision, the voucher was disapproved by the Second Auditor
and by the second Comptroller, and the amount charged against
Lieut. Sweeny.
On August 31, 1857, he was paid the amount of the second
longevity ration from December 3, 1856, to August 31, 1857, and
after that date he was successively paid his second ration for the
respective months down to February, 1858. But these payments were
disallowed in due course by the accounting officers, and the
appellee's intestate was again required to refund.
In 1892, he was informed that he was in arrears to the United
States in the sum of $182.05, which he paid under protest, and
subsequently began this suit to recover the amount so paid, upon
the ground that he ought to have been credited with longevity
rations due on account of his service as a volunteer in the Mexican
War, the first two of which rations he had been required to refund,
while the last two had never been paid to him.
Page 157 U. S. 283
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This case involves the question whether, in computing the time
of service which entitles an officer to longevity pay, service in a
volunteer regiment is service "in the army of the United States,"
within the meaning of the Act of July 5, 1838, the fifteenth
section of which (p. 258) enacts
"that every commissioned officer of the line or staff, exclusive
of general officers, shall be entitled to receive one additional
ration
per diem for every five years he may have served or
shall serve in the army of the United States."
Claimant was an officer of a New York volunteer regiment, and
was mustered into the service of the United States December 3,
1846, and so remained until March 17, 1848, during the Mexican War,
when he accepted a commission as second lieutenant in the regular
army. After serving in the army of the United States five years, he
became entitled to the extra ration provided by the act of 1838,
and the question is whether that term of five years began to run
from the day he was first mustered into the service as a volunteer
or from the day he received his commission as a lieutenant in the
regular army.
That the act of 1838 was passed with special reference to the
regular army is evident not only from the fact that there were no
volunteers at that time in the service of the United States, but
from the title of the act, "To increase the present military
establishment of the United States, and for other purposes," and
from its numerous provisions, all of which bore upon its manifest
purpose to increase and reorganize the regular army. By the Act of
May 13, 1846, c. 16, 9 Stat. 9, a state of war was recognized to
exist between the United States and Mexico, and for the purpose of
prosecuting such war to a successful termination, the President was
authorized to call for and accept the services of any number of
volunteers,
Page 157 U. S. 284
not exceeding fifth thousand, to serve twelve months, or until
the end of the war; by section 4 they were declared to be subject
to the rules and articles of war, and in all respects except as to
clothing and pay placed on the same footing with similar corps of
the United States army, and in section 9 there was a further
provision that they should have the organization of the army of the
United States, and the same pay and allowances. This act
undoubtedly entitled the claimant to the same pay as a volunteer
during his term of actual service that he would have received if he
had been in the regular army, but it does not follow that, after
his service was concluded and he was mustered out, such past
service was intended to be recognized as a service in the army of
the United States. The act, so far from amalgamating the volunteers
and the regular army, distinguishes the two and limits their
identity to the receipt of the same pay and allowance. This is the
more obvious from the very next act, passed upon the same day,
which authorizes an increase of the rank and file of "the army of
the United States" by voluntary enlistments. The first act dealt
exclusively with the militia and volunteers, the second with the
regular army.
Very little light is thrown upon the question by prior
legislation. It is true that the Constitution provides that
"the President shall be commander-in-chief of the army and navy
of the United States, and of the militia of the several states,
when called into the actual service of the United States."
Nothing is said in this connection of volunteers, but the object
of the provision is evidently to vest in the President the supreme
command over all the military forces -- such supreme and undivided
command as would be necessary to the prosecution of a successful
war. The regular army dates its birth from the Act of September 29,
1789, c. 25, 1 Stat. 95, which continued in the service of the
United States a small military force, which had been held subject
to the authority of Congress when the Constitution took effect.
This act was superseded the following year by an act for regulating
the military establishment (Act of April 30, 1790. c. 10, 1 Stat.
119), but nothing was said with regard to volunteers until
Page 157 U. S. 285
May 28, 1798, when, in view of a possible war with France, the
President was authorized to raise a provisional army of volunteers
who, when called into actual service, were to receive the same pay,
rations, forage, and emoluments of every kind, except bounty and
clothing, as the other troops to be raised by the act. Act of May
28, 1798, c. 47, 1 Stat. 558. By subsequent acts passed at
different critical periods, the President was authorized to accept
the services of volunteers who, though treated while in actual
service as a part of the army of the United States, were so
considered only in a limited sense, and while in actual
service.
Their time of service as such volunteers never seems to have
been computed in estimating the five years after which they were
entitled to longevity rations, until the Act of March 2, 1867, c.
159, 14 Stat. 434, entitled "An act declaring and fixing the rights
of volunteers as a part of the army," the first section of which
provided that
"in computing the length of service of any officer of the army,
in order to determine what allowance and payment of additional or
longevity rations he is entitled to, . . . there shall be taken
into account and credited to such officer whatever time he may have
actually served, whether continuously or at different periods, as a
commissioned officer of the United States, either in the regular
army or since the nineteenth day of April, eighteen hundred and
sixty-one, in the volunteer service, either under appointment or
commission from the governor of a state or from the President of
the United States."
It seems to us this act is decisive of the question. It provides
in substance that in estimating the length of service for the
payment of longevity rations, he shall be credited both for his
service as an officer of the regular army, or since the 19th day of
April, 1861, as an officer in the volunteer service. The object of
the act was evidently first to extend to such volunteer officers as
had served in the army since the breaking out of the Civil War the
same privilege with respect to longevity rations as had, by the act
of 1838, been already secured to officers of the regular army, and
second to limit that privilege to those
Page 157 U. S. 286
who had served since that date. If those who served before that
date had been treated as entitled to longevity pay, the act was
wholly unnecessary, as there was no question that, under the act of
1838, the officers of the regular army were so entitled, and the
extension of the same privilege to officers of the volunteer army
was evidently a new provision, and to be restricted to those who
had served as such since the breaking out of war. It is a plain
case for the application of the maxim
Expressio unius est
exclusio alterius. Had it been shown that, prior to the
passage of this act, the practice of the department had been to
estimate the length of an officer's service as a volunteer in
making up the five-years service entitling him to longevity pay,
the act might have been construed to be in affirmance of the
previous law; but so far as the record of this case shows, the
practice appears to have been the other way, and the act must be
treated as establishing a new rule for such officers in the
volunteer service after April 19, 1861.
The judgment of the court below must therefore be
Reversed, and the case remanded to the Court of Claims, with
direction to dismiss the petition.
