The time of service of a cadet in the Military Academy at West
Point, from July 1, 1865, to June 15, 1869, is to be regarded as
"actual time of service in the army," within the meaning of the
Acts of February 24, 1881, and June 30, 1882, 21 Stat. 346, and 22
Stat. 118, in computing his increase of pay "for each term of five
years of service," under § 1262 of the Revised Statutes.
Charles Morton was appointed a conditional cadet in the service
of the United States on March 6, 1865, and was admitted as a
conditional cadet on July 1, 1865, into the United States Military
Academy at West Point, and received his warrant as a cadet, signed
by the Secretary of War, in January, 1866, stating that he had been
appointed by the President a cadet of the United States Military
Academy, to rank as such from July 1, 1865. On the 1st of July,
1865, when he was so admitted as a conditional cadet, he entered
into an agreement, as required by law, bearing that date, and
subscribed and sworn to by him, which stated, that, "having been
selected for an appointment as cadet in the Military Academy of the
United States," he engaged, with the consent of his father, in the
event of his receiving such appointment, that he would "serve
Page 112 U. S. 2
in the army of the United States" for eight years, unless sooner
discharged by competent authority. The instrument embodied also the
oath required by the Act of July 2, 1862, 12 Stat. 502, to be the
thereafter taken and subscribed by every person
"elected or appointed to any office of honor or profit under the
government of the United States, either in the civil, military, or
naval departments of the public service, excepting the President of
the United States, . . . before entering upon the duties of such
office, and before being entitled to any of the salary of other
emoluments thereof."
Part of the oath was, "that I will well and faithfully discharge
the duties of the office on which I am about to enter." He remained
at the academy from July 1, 1865, until June 15, 1869, when he was
duly graduated therefrom. He was commissioned as a second
lieutenant in the third regiment of cavalry, to date from June 15,
1869, and thereafter as a first lieutenant in the same regiment, to
take effect from September 25, 1876. He held the latter position
down to March 31, 1883. He faithfully discharged the duties imposed
on him by these various appointments, being continuously in the
service of the United States, in a military capacity, from July 1,
1865, to March 31, 1883. In computing his service pay, he was not
allowed credit for the time he was a cadet at West Point as part of
his time of service in the army. He brought suit in the Court of
Claims, against the United States, in July, 1883, to recover
$169.07, as withheld from him in respect of time between February
24, 1881, and March 31, 1883, and, on the foregoing facts, that
court rendered a judgment in his favor for that amount, from which
the United States have appealed.
Page 112 U. S. 3
MR. JUSTICE BLATCHFORD delivered the opinion of the Court. He
stated the facts in the foregoing language, and continued:
It is provided as follows by § 1262 of the Revised Statutes:
"There shall be allowed and paid to each commissioned officer
below the rank of brigadier general . . . ten percent of their
current yearly pay for each term of five years of service. "
Page 112 U. S. 4
In the Acts of February 24, 1881, and June 30, 1882, making
appropriations for the support of the army, 21 Stat. 346; 22 Stat.
118, under the head, "For pay of the army," gross sums are
appropriated for, among other things, this purpose:
"Additional pay to officers for length of service, to be paid
with their current monthly pay, and the actual time of service in
the army or navy, or both, shall be allowed all officers in
computing their pay."
The only question for decision is whether the time of service as
a cadet is to be regarded as "actual time of service in the
army."
The view acted on by the accounting officers of the government
in dealing with the officer under § 1262 of the Revised Statutes,
and § 24 of the Act of July 15, 1870, 16 Stat. 320, of which § 1262
was a reenactment, was to allow only for length of service as a
commissioned officer in the regular army. By § 7 of the Act of June
18, 1878, 20 Stat. 150, it was provided that officers of the army
who had served "as enlisted men in the armies of the United States,
regular or volunteer," should be credited with the fully time they
had served as such enlisted men, "in computing their service for
longevity pay." Under this statute, the practice was not to regard
an officer who had served as a cadet as having thereby served as an
enlisted man in the army, 16 Opin.Attys.Gen. 611; and the Court of
Claims, in
Babbitt v. United States, 16 Ct.Cl. 202,
supported that view. After the passage of the Act of February 24,
1881, the accounting officers of the government administered it as
not requiring that the time of service as a cadet should be allowed
as "actual time of service in the army." This was done in pursuance
of the advice of Attorney General McVeagh.
But an examination of the legislation of Congress shows that the
cadets at West Point were always a part of the army, and that
service as a cadet was always actual service in the army. Cadets
are first mentioned in the Act of May 9, 1794, 1 Stat. 366, which
provided for organizing, by voluntary enlistment, a corps of
artillerists and engineers, of which a part was to be thirty-two
cadets, ranking as sergeants, but spoken of as officers. These were
part of the army. By § 6 of the Act of
Page 112 U. S. 5
July 16, 1798, 1 Stat. 605, cadets are called noncommissioned
officers in the army of the United States, and their pay is fixed
at $10 per month and two rations per day.
By the Act of March 16, 1802, entitled "An act fixing the
military peace establishment of the United States," 2 Stat. 132, it
was provided (§ 1) that the military peace establishment of the
United States should embrace a regiment of artillerists, of which a
part should be forty cadets. By §§ 4 and 5 the pay and rations of
the cadets were fixed. By § 26, provision was made for organizing a
corps of engineers, consisting of officers and ten cadets, whose
pay was fixed, and by § 27 the corps was to be stationed at West
Point, New York, and to constitute "a Military Academy," and the
officers and cadets were to be "subject at all times to do duty in
such places and on such service" as the President should direct.
Clearly all these cadets were a part of the army.
By §§ 1 and 2 of the Act of April 12, 1808, 2 Stat. 481,
additional military forces were to be raised, comprising, in
infantry, riflemen, artillery, and dragoons, one hundred and
fifty-six cadets, the cadets (§ 4) to receive the like pay, etc.,
with the cadets of the then existing military establishment, and
being classed by themselves, and not as either officers or
noncommissioned officers, and (§ 5) to be subject, with the then
existing cadets, to the rules and articles of war which had been
establish or might thereafter, by law, be established.
By § 2 of the Act of April 29, 1812, 2 Stat. 720, entitled "An
act making further provision for the corps of engineers," it was
provided that the Military Academy should consist of the corps of
engineers and certain professors. By § 3 it was enacted that the
cadets theretofore "appointed in the service of the United States,
whether of artillery, cavalry, riflemen, or infantry," or that
might in future be appointed, as thereinafter provided, should not
exceed two hundred and fifty, and might be attached by the
President, as students, to the Military Academy, and be subject to
the established regulations thereof;
"that they shall be arranged into companies of noncommissioned
officers and privates, according to the directions of the
commandant of engineers, and be officered from the said corps,
Page 112 U. S. 6
for the purposes of military instruction; that there shall be
added to each company of cadets four musicians, and the said corps
shall be trained and taught all the duties of a private,
noncommissioned officer, and officer, by encamped at least three
months of each year, and taught all the duties incident to a
regular camp; that the candidates for cadets be not under the age
of fourteen nor above the age of twenty-one years; that each cadet
. . . shall sign articles, with the consent of his parent or
guardian, by which he shall engage to serve five years, unless
sooner discharged, and all such cadets shall be entitled to and
receive the pay and emoluments now allowed by law to cadets in the
corps of engineers."
This was the organization of the Military Academy,
substantially, as it has since continued.
By § 1 of the Act of March 3, 1815, 3 Stat. 224, entitled, "An
act fixing the military peace establishment of the United States,"
it is directed that the corps of engineers, as then established, be
retained; by § 4 that the compensation, etc., of the cadets and
others "composing the military peace establishment" should be the
same as prescribed by the before-mentioned acts of 1802 and 1808;
and, by § 7, that the several corps authorized by the act "shall be
subject to the rules and articles of war."
By § 28 of the Act of July 5, 1838, 5 Stat. 260, it was enacted
that
"the term for which cadets hereafter admitted into the Military
Academy at West Point shall engage to serve, be, and the same is
hereby, increased to eight years, unless sooner discharged."
By § 1 of the Act of July 28, 1866, 14 Stat. 332, it was
provided that the military peace establishment of the United States
should thereafter consist of so many regiments of artillery, of
cavalry, and of infantry, "the professors and corps of cadets of
the United States Military Academy," and such other forces as
should be provided for by that act, "to be known as the army of the
United States." This enactment remained in force, and is reproduced
in § 1094 of the Revised Statutes, which says that "the army of the
United States shall consist of," with other constituents, "the
professors and corps of cadets of the United States Military
Academy."
Page 112 U. S. 7
From this review of the statutes, it cannot be doubted that
before the passage of the Act of July 28, 1866, as well as
afterwards, the corps of cadets of the Military Academy was a part
of the army of the United States, and a person serving as a cadet
was serving in the army, and that the time during which the
plaintiff in the present case was serving as a cadet was therefore
actual time of service by him in the army.
The practical construction of the requirement of the act of
1838, that the cadet should engage to serve for eight years, shown
by the fact that the form of the engagement in this case was to
"serve in the army of the United States for eight years," is a
circumstance of weight to show that the government, from the
beginning, treated the plaintiff as serving in the army. The
service for which he engaged began on the first of July, 1865, and
the eight years ran from that time. That being his status, the acts
of 1881 and 1882, in speaking of "actual time of service in the
army," cover the time of his service as a cadet.
In
United States v. Tyler, 105 U.
S. 244, it was held that an officer retired from active
service who was declared by statute to be a part of the army, who
could wear its uniform, whose name was required to be borne on its
register, who might be detailed by his superior officers to perform
specified duties, and who was subject to the rules and articles of
war, was in the military service, and that the increase of pay
given for each term of five years of service, by § 1262 of the
Revised Statutes, and by § 24 of the Act of July 15, 1870, 16 Stat.
320, from which that section was taken, applied to the years so
passed in the service after as well as before retirement. Under the
statutes involved in the present case, a cadet at West Point in
serving in the army as fully as an officer retired from active
service is serving in the army, under the statutes which apply to
him, so far as the question of longevity pay is concerned.
The judgment of the Court of Claims is affirmed.