An officer of volunteers in the United States Army who tenders
his resignation and is honorably discharged is not entitled to
travel pay and commutation of subsistence, under Rev.Stat. § 1289,
as amended by the Act of February 27, 1877, c. 69, 19 Stat. 243,
from the place of his discharge to where he was mustered in.
This decision is in accord with the settled practice of the War
Department and the Treasury, which has been to deny these
allowances when the officer or soldier is discharged at his own
request for his own pleasure or convenience. The weight of a
contemporaneous and long continued construction of a statute by
those charged with its execution is well recognized in cases open
to reasonable doubt.
Page 189 U. S. 472
The case is stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This case comes here by appeal from a judgment of the Court of
Claims in favor of the petitioner, Sweet. The petitioner was a
second lieutenant of volunteers in the United States Army, tendered
his resignation, and was honorably discharged on October 15, 1898.
He was mustered into the service at St. Paul, Minnesota, his
residence being Minneapolis. The place of his discharge was Camp
Meade, Pennsylvania. He was not furnished transportation or
subsistence, but returned to his residence at his own expense, and
later brought this petition to recover travel pay and commutation
of subsistence under Rev.Stat. § 1289, as amended by the Act of
February 27, 1877, c. 69, 19 Stat. 243, 244. That section allows
the items demanded "when an officer is discharged from the service,
except by way of punishment for an offense." The question whether
the statute extends to cases like the present has been before this
Court twice, but has not been decided authoritatively. In one case,
the court was equally divided (
United States v. Price, No.
60, December Term, 1870;
S.C. 4 Ct.Cl. 164); in the other,
the decision went off upon another point.
United States v.
Thornton, 160 U. S. 654.
It is admitted that the settled practice of the War Department
and of the Treasury has been to deny the allowances claimed when an
officer or soldier is discharged at his own request for his own
pleasure or convenience. Whitmeyer, 3 Dec. of the Comptroller of
the Treasury 397, 398;
Weber, 3 Dec. of the Comptroller of
the Treasury 640; 5 Dec. of the Comptroller of the Treasury 113,
117; 5 Dec. of the Comptroller of the Treasury 939, 941;
Bridges, Second Comptroller's Letter
Page 189 U. S. 473
Book, vol. 18, p. 184; Weevil, Second Comptroller's Letter Book,
vol. 26, p. 296. The weight of a contemporaneous and long continued
construction of a statute by those charged with its execution is
well recognized in cases open to reasonable doubt.
United
States v. Johnston, 124 U. S. 236,
124 U. S. 253;
United States v. Finnell, 185 U.
S. 236,
185 U. S. 244.
But it is said that in this case the language of the statute admits
of no doubt. It is argued that the words "except by way of
punishment for an offense" exclude the implication of other
exceptions to the rule. Some force was attributed also to the
amendment to the Revised Statutes, which substituted for "honorably
discharged from the service" the present words "discharged from the
service, except by way of punishment for an offense." The change,
however, is merely a recurrence to the language of the earlier
statutes under which the practice of the War Department grew up, so
that no particular weight can be given to that.
The words "discharged from the service, except by way of
punishment for an offense" are found in the Acts of March 3, 1799,
1 Stat. 755, c. 48, § 25; March 16, 1802, 2 Stat. 137, c. 9, § 24;
January 11, 1812, 2 Stat. 674, c. 14, § 22, and January 29, 1813, 2
Stat. 796, c. 16, § 15.
See further the Acts of April 12,
1808, 2 Stat. 483, c. 43, § 5; March 3, 1815, 3 Stat. 225, c. 79, §
4; July 22, 1861, 12 Stat. 269, c. 9, § 5; July 29, 1861, 12 Stat.
280, c. 24, § 4; June 20, 1864, 13 Stat. 145, c. 145, § 8; March
16, 1896, 29 Stat. 63, c. 59; June 7, 1900, 31 Stat. 708, c. 860;
February 8, 1901, 31 Stat. 762, c. 342. The phrase "honorably
discharged" seems first to have appeared in the Revised Statutes,
and to have been amended back to the ancient form in three years.
Except for that short intervening time, the allowance of travel pay
and commutation of subsistence has gone on under the early words
and the practical construction of them to which we have
referred.
It follows that the only question is whether the meaning of the
long used phrase is too clear for almost equally long established
practice to control. It seems to us not to be so. It is quite true
that, in the military service, the word "discharge" is the word
applied to an order ending the service of an officer at
Page 189 U. S. 474
his own request. But in other connections, it conveys the notion
of a movement beginning with the superior, and more or less adverse
to the object -- as, for instance, when we speak of discharging a
servant. Usually it is a slightly discrediting verb. If it is taken
in its ordinary meaning here, the exception in case of a discharge
by way of punishment raises no difficulty, because a discharge on
resignation is not within the meaning of the principal clause. The
course of the departments has amounted to no more than interpreting
the word in this exact sense.
Enlisted men are given similar allowances by § 1290 and the
earlier statutes cited. By the Act of June 7, 1900, c 860, 31 Stat.
708, when the Secretary of War, in the exercise of his discretion,
has directed the discharge "of any enlisted men . . . and the
orders . . . stated that such enlisted men were entitled to travel
pay," such order is to be sufficient authority for payment of the
allowances under § 1290. This recognizes that it is usual to state
in the order whether the soldier is entitled to travel pay or not,
and seems to accept existing practices as they are. It has no
effect upon the cases before us further than as another slight
indication of the understanding in the service. But, taking
everything into account, we are not prepared to overturn the long
established understanding of the departments charged with the
execution of the law.
Judgment reversed.