A paymaster in the Army of the United States, appointed under
the act of Congress, passed the 24th of April, 1816, is entitled to
the pay and emoluments of a major of infantry, and not those of a
major of cavalry.
The army registers, published by the adjutant and
inspector-general of the army, containing the general regulations
of the army, which are delivered by the departments to the officers
of the army, are not evidence to establish the pay and emoluments
of officers in the service. These are fixed and determined by acts
of Congress.
The registers are compilations issued and published to the army
by the direction of the Secretary of War in the exercise of his
official authority, and when authenticated by him, would be
evidence of the facts, strictly so, they may contain, such as the
names of officers, date of commissions, promotions, resignations,
and regimental rank, brevet and other rank, or the department of
the army to which officers belong; but from none of these can an
inference be drawn by a jury to establish the pay and emoluments of
officers as they are provided for by law, and must be determined by
the court when they are doubtful and the subject of dispute in a
suit between an officer and the United States. Nor can such
registers be evidence of the correctness of any classification of
the officers of departments into a general staff of the army, for
though they are probably correct, being prepared by persons whose
professional duty it is to be well informed upon the subject and
who, from their familiarity with military science and the general
arrangement of armies, are supposed to be expert interpreters of
the acts of Congress for the organization of our army, still what
officers are of the staff or general staff depends upon acts of
Congress, which are to be expounded by the courts when an officer
claims a judicial determination of his rights as to pay and
emoluments from his having been arranged as belonging to the
staff.
An action of
indebitatus assumpsit was instituted at
September term, 1832, by the United States in the District Court of
the United States for the Missouri District against Alphonso
Wetmore upon an account regularly adjusted, settled, and certified
at the Treasury of the United States on 18 November, 1831. The
account charged the defendant with the sum of $3,388.18 "for
difference of pay and forage, between a major of cavalry and a
major of infantry, improperly received by him, and now brought to
his debit." At the foot of the account there is a statement by the
Second Auditor of the Treasury as follows:
"the same being the difference of pay and forage claimed by him
between a major of cavalry and
Page 35 U. S. 648
a major of infantry, to which he is considered as not entitled
by the accounting officers of the Treasury of the United
States."
The cause was tried by a jury on 6 September, 1832, and a
verdict was found for the United States.
The United States produced and read in evidence the duly
certified transcript from the Treasury showing the amount of the
claim against the defendant.
It was admitted on the trial that the defendant had served as a
paymaster (duly appointed as such) in the Army of the United States
from said 24 April, 1816 to the said 31 May, 1831, and that the
amount stated in said account and transcript to be due from the
defendant to the United States consists solely of the difference
between the pay and emoluments allowed by the accounting officers
to the defendant, and the pay and emoluments retained and claimed
by him during the period of service aforesaid.
The defendant claimed to be allowed for his service during the
period aforesaid the pay and emoluments allowed by law to other
officers of the general staff of the army of the rank of major and
who are entitled to the pay and emoluments of majors of
cavalry.
He offered in evidence an army register, prepared and published
by the Adjutant and Inspector General of the United States in 1816,
which register was delivered to the defendant and other officers of
the army; in the register the officers of the pay department,
created by the Act of Congress of 24 April, 1816, are arranged as
belonging to the general staff of the army, which evidence was, on
motion of the plaintiffs, rejected by the court, to which opinion
of the court the defendant by his counsel excepted.
The defendant also offered in evidence the register of the Army
of the United States for the year 1831, prepared, published and
subscribed by the adjutant general, in which register the officers
of the pay department are arranged under the head, and as
appertaining to the general staff of the army, which evidence, as
offered, was rejected by the court, and the defendant by his
counsel excepted to the said decision rejecting said testimony. The
defendant then offered to read to the jury a general order, dated
"Headquarters of the Army, Adjutant General's Office, Washington,
11 June, 1832," order No. 50, signed by the adjutant general and
purporting to have been issued by command of Major General
Alexander Macomb, Commander-in-Chief, which order prescribes the
dress of
Page 35 U. S. 649
the officers, noncommissioned officers, musicians, and privates
of the army and other regulations of the government of the army and
contains, among other things, the following, to-wit:
"The general staff is to include the adjutant general, the
inspectors general, the aids-de-camp, the officers of the
quartermasters' department, the officers of the subsistence
department, the officers of the pay department, the officers of the
medical department, the commissary general of purchases."
To the reading which general order the plaintiffs, by their
counsel objected, and the court sustained the objection and
rejected the evidence so offered, to which opinion of the court the
defendant by his counsel excepts. No further evidence being
offered, the defendant moved the court to instruct the jury as
follows:
"1. That the defendant is entitled to the pay and emoluments
allowed by law to the officers of the general staff of the army of
the rank of major -- that is to say, the pay and emoluments allowed
to majors of light dragoons by the Act of Congress of 12 April,
1808."
"2. That if the jury find from the evidence that the defendant
was, from 24 April, 1816, to the time of the statement of the
account read in evidence, an officer in the general staff of the
army, he is entitled, for the time he has so served, to the pay and
emoluments allowed by law to the officers of the general staff of
the rank of major."
Which instructions were by the court refused, and the court
instructed the jury that the defendant, in virtue of his office,
was entitled only to receive the pay and emoluments of a major of
infantry, to which opinions of the court in refusing the
instructions prayed for by the defendant, and also to the
instructions given, the defendant by his counsel excepted. The
court sealed a bill of exceptions.
The district court gave judgment on the verdict in favor of the
United States, and the defendant prosecuted this writ of error.
Page 35 U. S. 650
MR. JUSTICE WAYNE delivered the opinion of the Court.
It was admitted on the trial that the defendant had served as
paymaster of the army, duly appointed as such, from 24 April, 1816,
to 31 May, 1831. That the amount claimed from him
Page 35 U. S. 651
by the United States was the difference between the pay and
emoluments allowed by the accounting officers of the Treasury to
the defendant and the amount claimed and retained by him during the
period of his service. The defendant had retained the pay and
emoluments allowed by law to officers of the general staff of the
army of the rank of major. Upon the trial the defendant offered as
evidence two army registers, one published by the adjutant and
inspector general of the army in August, 1816, the other published
in 1831, which had been delivered to himself and other officers of
the army. In both, the officers of the pay department are arranged
as belonging to or appertaining to the general staff of the army.
He also offered as evidence a general order, issued by the major
general commanding in chief, dated at Headquarters of the Army,
Adjutant General's Office, Washington, 11 June, 1832, which directs
that the general staff is to include the officers of the pay
department. These registers and the general order the court refused
to allow to be read as evidence to the jury, and no further
evidence being offered by the defendant, he moved the court to
instruct the jury:
"1st. That the defendant is entitled to the pay and emoluments
allowed by law to the officers of the general staff of the army of
the rank of major -- that is to say, the pay and emoluments allowed
to majors of light dragoons by the Act of Congress of 12 April,
1808."
"2d. That if the jury find from the evidence that the defendant
was, from 24 April, 1816, to the time of the statement of the
account read in evidence an officer of the general staff of the
army, he is entitled, for the time he has served, to the pay and
emoluments allowed by law to the officers of the general staff of
the rank of major."
The court refused to give the instructions, and instructed the
jury that the defendant, in virtue of his office, was entitled only
to receive the pay and emoluments of a major of infantry.
These registers, however, and the general order of the major
general, with the general regulations of the army printed and
published by the War Department in the year 1825, have, since the
writ of error was sued out, been admitted, by the consent of the
Attorney General, to be a part of the original record as if they
had been referred to and stated in the bill of exceptions and had
been proved on the trial. And it is further admitted by the
Attorney General and the defendant's counsel that the custom and
usage of the army have always been to class the officers of the pay
department among the officers of the general staff of the army, and
that since the Act of
Page 35 U. S. 652
24 April, 1816, for the organization of the general staff,
&c., it has been the invariable usage and practice of the
Treasury Department and of the proper accounting officers to allow
the pay and emoluments of a major of cavalry to the assistant
adjutants general, to the assistant inspectors general, to the
deputy quartermasters general, and to the topographical engineers,
and since the Act of 2 March, 1821, to majors on ordnance duty and
to the quartermasters.
It is but proper, however, to remark that the court did right in
rejecting the registers and general order when the defendant
offered them as evidence on the trial. The registers are
compilations issued and published to the army by the direction of
the Secretary of War in the exercise of his official authority, and
when authenticated by him, would be evidence of the facts, strictly
so, they may contain, such as the names of officers, date of
commissions, promotions, resignations, and regimental rank, brevet
and other rank, or the department of the army to which officers
belong, but from none of these can an inference be drawn by a jury
to establish the pay and emoluments of officers as they are
provided for by law, and must be determined by the court when they
are doubtful, and the subject of dispute in a suit between an
officer and the United States. Nor can such registers be evidence
of the correctness of any classification of the officers of
departments into a general staff of the army, for though they are
probably correct, being prepared by persons whose professional duty
it is to be well informed upon the subject, and who, from their
familiarity with military science and the general arrangement of
armies, are supposed to be expert interpreters of the acts of
Congress for the organization of our army, still, what officers are
of the staff, or general staff, depends upon acts of Congress,
which are to be expounded by the courts, when an officer claims a
judicial determination of his rights as to pay and emoluments, from
his having been arranged as belonging to the staff.
However, we are not now called on to say what officers make up
the general staff, or what departments of the army may be assigned
to it or are comprehended in it by the acts of Congress; nor is it
necessary for the decision of this case to deny that paymasters may
not be arranged as of the staff under the Act of 2 March, 1821.
Considering the staff as a central point of military operations,
whence should proceed all general orders for the army, the orders
of detail, of instruction, of movement, all general measures for
subsisting,
Page 35 U. S. 653
paying and clothing the army, and as the administrative organ of
all supplies for the military service and land defense of the
country; it seems to us that paymasters, from their duties and
responsibilities, should be classed with the general staff, and we
presume it has been done under the act of 2 March, 1821, which,
without being express upon the point, has rendered indeterminate
the previous acts of Congress fixing with certainty the officers
composing the staff. Conceding, then, for the purposes of this
argument, that paymasters are of the staff, does it strengthen the
claim of the defendant to the pay and emoluments of a major of
cavalry?
The position taken in favor of cavalry pay is that paymasters,
being of the general staff, are entitled by the third section of
the act of 24 April, 1816, to the pay and emoluments allowed by law
to the officers of the general staff of the rank of major. The
third section declares, "that regimental and battalion paymasters
shall receive the pay and emoluments of majors," without the
additional words of cavalry or infantry. The ninth section of the
came act secures to the several officers of the staff the
privileges, pay and emoluments of the act of 3 March, 1813. By the
third section of that act, the assistant adjutants general,
assistant inspectors general, deputy quartermasters general, and
assistant topographical engineers, are declared to have the brevet
rank and the pay and emoluments of a major of cavalry. These are
the officers of the staff, upon an equality with whom, in regard to
pay and emoluments, it is contended that paymasters are placed by
the Act of 24 April, 1816. The question depends entirely upon the
construction of the acts of Congress. Having examined them, we are
of opinion that Congress meant by the words "the pay and emoluments
of major" those of a major of infantry.
It was urged, however, in the argument against this conclusion
that Congress, in referring to the pay of major to fix that of
paymasters, when there are different amounts of pay allowed to
majors, according to the nature of the service, had reference to
those whose duties are most analogous to that of paymasters, and
who belong to the same branch of service. That paymasters belong to
the staff of the army, and all officers of the staff who receive
the pay of major, are allowed cavalry pay. That there was a strong
analogy between deputy quartermasters and paymasters, both being of
the staff and disbursing officers, which raised a fair and strong
presumption that
Page 35 U. S. 654
Congress intended paymasters should receive the same pay and
emoluments as deputy quartermasters, or majors of the staff.
Upon these suggestions of analogy we remark it will not be
pretended, before the act of 1816 was passed, that any relation
existed between paymasters and the officers of the staff receiving
the pay of a major of cavalry to enable the former to have their
pay graduated by that standard. In all the acts of Congress
providing for the appointment of paymasters, whether they were
regimental or district paymasters or whether they were to be
selected from the line of the army or from citizens not of the
army, the pay was fixed in reference to the duties and
responsibilities of the appointment, without reference to any
connection of paymasters with the staff, and without regard to any
analogy of duty between paymasters and any officer of the staff. In
truth, the only analogy existing between paymasters and any officer
of the staff, is that to deputy quartermasters, both being
disbursing officers. The want of general analogy, then, shows that
Congress could not have been influenced in fixing the pay of
paymasters by any such consideration, and the particular analogy
between them and a single class of officers in a single point is
insufficient to sustain such a presumption. Besides, the act relied
upon to establish the equality contended for makes a difference
between paymasters and the officers of the staff in regard to rank;
enough of itself to account for the larger pay and emoluments
allowed to the latter. They have the brevet rank of majors of
cavalry, which is not given to paymasters, and to the latter the
law allows no rank. The language of the act of 1813, referred to in
the ninth section of the act of 1816, is that the assistant
adjutants general, assistant inspectors general, deputy
quartermasters general, and topographical engineers, shall have the
"brevet rank," and the pay and emoluments of a major of cavalry.
The section of the act of 1816, fixing the pay of paymasters, omits
the words "brevet rank." As well might it be contended that they
should have it as that the words "of cavalry" should be added to
the word "major." One would do no more violence to rules for the
construction of statutes than the other; but both would be in
harmony with the principle applied in this instance, to give the
paymasters cavalry pay. Rank of itself, in every service, is a good
ground for a distinction in pay, and though it has not been
followed, or has rather been abandoned in ours, in favor of the
brevet rank of officers in the line and staff, it should be
presumed to apply to persons having rank, and those
Page 35 U. S. 655
who have none. Cavalry pay, then, having been claimed on the
ground of equal grade in the staff, the fact being otherwise,
nothing is left to sustain the claim.
But it will be asked by what considerations is it determined
that the pay and emoluments of paymasters are those of a major of
infantry? We answer first that all the previous legislation of
Congress, from the earliest period of the government, and its
practice give a rule which should be decisive of this question. The
acts, from 1792 to 2 March, 1821 (the last upon the subject) show
that Congress, in determining at different times the pay of
paymasters, have always fixed it with reference to the pay of an
officer in the line, with such additional compensation as was
deemed to be a remuneration for increased duty and responsibility,
whether the selection was to be made from subalterns of the army,
or from citizens, and when the latter, where there was a deviation,
it has been by giving a fixed monthly compensation. This uniformity
of practice certainly outweighs any presumption that can be raised
from the ninth section of the act of 1816 that there was to be a
sudden change of it in favor of staff pay -- especially so when the
ninth section can only be received as providing for a certain
officer, officially designated in the act of 1813 and entirely
independent of the third section of the act of 1816, which had
already fixed the pay of paymasters. It would be very difficult to
connect the two sections, the third and ninth, in any way to bear
upon each other, and the mistake in doing it has arisen from going
out of the statute and engrafting upon the intention of Congress
the exterior consideration that paymasters had been arranged under
the general staff.
Again, when the acts speak of "regimental" and "battalion"
paymasters, these laws must necessarily refer to the existing
composition of the army, whether it be made up of all, or one, of
the different arms of defense; and cannot, without great violence,
be supposed to mean one of them not comprehended in the existing
military establishments of the country. So also, when the law
speaks of a "major," the term is most naturally considered as
having been used in reference to such officers of that rank, and of
such regiments actually being of the army, or to the army as it
exists; and when it is used without regimental designation, implies
a major of infantry, this arm of defense having been made the main
body of modern armies. We think military men must so understand it
because in this, as in all other cases where distinct parts form
the minor portion, the larger
Page 35 U. S. 656
or main body is understood without particular designation, and
the minor requires it, to ascertain with certainty what part is
referred to as spoken of. So that where the ninth section of the
Act of 2 March, 1821, declares that there shall be fourteen
paymasters, with the pay and emoluments of regimental paymasters,
and when to ascertain what the pay and emoluments are, we have to
resort to the third section of the act of 1816, and there find it
to be those of a major: the law must mean a
regimental and not
a staff major, a major of infantry. Certainly it should not be
tortured to mean a major of one of the arms of defense or kinds of
regiment, of which there is none in the army. When the act of 1816
was passed, cavalry did not form a part of the army; consequently
no such rank as major of cavalry existed, by which the pay of
paymasters could have been graduated. But it was urged in argument
that there was such a thing as the pay of a major of cavalry,
subsisting in legal contemplation. There was, but for no other
purpose than as giving the standard of pay to certain staff
officers. It is not probable that Congress, when fixing the pay of
paymasters, referred to what only existed in contemplation of law,
in preference to what existed in fact, to guide its
determination.
But another, and the only remaining consideration to which we
shall allude as decisive of the interpretation here given to the
third section of the act of 1816, is the contemporaneous exposition
and practice under it, by the accounting officers of the Treasury,
and acted upon by Congress, when five years afterwards it re
organized the pay department of the army. The ninth section of the
Act of 2 March, 1821, to reduce and fix the military peace
establishment, declares that there shall be one paymaster general,
with the present compensation, and fourteen paymasters with the
pay, &c., of regimental paymasters. This act, in reference to
the paymaster general, is positive in continuing the existing
compensation, and the term regimental, applied to the paymaster, is
to be taken in the sense in which it is used in the act fixing the
peace establishment, or to the kinds of regiment of which the army
was to be composed, and as continuing the paymasters upon the
footing they actually were, and had been for five years, in regard
to pay and emoluments. Congress knew what these were, and cannot be
supposed to have intended to reenact the law of 1816, with the
construction of it here contended for, in opposition to the
practice of the Treasury Department under it.
Judgment affirmed.
