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
MR. JUSTICE MILLER delivered the opinion of the Court.
There is no question but that the claimant's case comes within
the strict letter of the joint resolution.
The counsel for the United States, however, argues that the
joint resolution can only have application to the case of an
officer duly commissioned and
entitled by law to be mustered
into service as such officer, and that the finding of the
court shows that the claimant was not entitled to be mustered in
when he accepted his commission and offered himself for that
purpose.
This would raise a very interesting question, and one which
might not be easy of decision, if the record in this case fairly
presented it. There is undoubtedly strong reason why Congress
should have provided full pay for an officer who, holding a
commission from the proper source, was given command and actually
served as such officer, and had his rank recognized by all his
superiors, though in point of
Page 84 U. S. 408
fact not mustered in as such or entitled to be; and it is
certain he would not be entitled to such pay without the enabling
act. But we do not find in the record the evidence or any finding
of the court that the claimant was not entitled to be mustered into
the service. The finding of the Court of Claims on that subject is
as follows:
"Upon receipt of the 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."
Counsel for the government, assuming that what the mustering
officer alleged is to be treated here as an established fact,
further assumes that that fact brings his case within the language
of section twenty of the Act of March 3, 1863, to-wit:
"That whenever a
regiment is reduced below the minimum
number allowed by law, no officers shall be appointed in such
regiment beyond those necessary for the command of such reduced
number."
But the argument is open to more than one fatal objection.
1. The claimant having shown that he was regularly commissioned
and served as a lieutenant, and was, without fault of his, refused
a muster, so that he comes within the literal terms of the joint
resolution; if any fact is relied on to defeat his claim, it should
be specifically found and stated by the Court of Claims. This is
not done by a finding of that court that the mustering officer
alleged that Company D was reduced below the minimum
number. If the fact that the company was below the minimum was
important in the case, it should have been found as a fact by the
court, and not stated merely as the alleged reason of the officer
for refusing to muster in the claimant. The muster roll of the
company was within the control of the government, and would have
settled the fact, one way or the other, beyond dispute.
2. The act relied on by counsel forbids the appointment of
officers in a
regiment, when it is reduced below the
minimum
Page 84 U. S. 409
number allowed by law, beyond those necessary for the command of
such reduced number.
It is quite consistent with a reduction of Company D below the
minimum for a company, that the regiment was not below the minimum
for a regiment. Indeed, it is unreasonable to suppose that because
a single company is reduced below the minimum, that the regiment is
for that reason to be so treated, and to have no more officers
appointed in it until that company is filled up.
There is no finding, nor any allegation, in the present case,
that the regiment was below the minimum, and, therefore, this act
does not apply. Nor are we pointed by counsel to any law or
regulation of the service which fixes what is the minimum of a
regiment of volunteer infantry. Nor does the Court of Claims find
any facts from which, if we had such a law or regulation before us,
we could decide whether this regiment, or indeed this company, was
in fact below the minimum as established by law at the time the
claimant offered himself for muster.
Under these circumstances, the judgment of the Court of Claims
must be
Affirmed.
[
Footnote 1]
14 Stat. at Large 368.
[
Footnote 2]
12
id. 734.
