
    
      B. A. F. Greer v. The United States.
    
      On the Proofs.
    
    
      The claimant is appointed by the War Department colonel in the “Hancock corps,” subject to the action of the examining board and to confirmation by the Senate, and with pay till “ duly notified ” that his services will be no longer required. The claimant fails to pass the board. On the 3d of July an order is issued that he be discharged. It does not reach him till the 18th. From the 3d to the 18th he is in Washington awaiting and expecting the order. He is refused pay 
      
      from the 2d to the 18th, and mileage from’Washington to his place of enlistment, and the three months’ pay proper given by the acts of 3d March, 1865, (13 Stat. L., p. 497,) and 12th July, 1866, (14 Stat. L., p. 94.)
    I. An officer “provisionally appointed ” by the War Department, the appointment in terms subject to the action of an examining board, is not in military service, even though assigned to military duty, so as to entitle him to mileage when discharged on being rejected by the board. Neither is he “in commission” nor “in service” within the meaning of the acts of 3d March, 1865, (13 Stat. L., p. 497,) and 13th July, 1866, (14 Stat. L., p. 94,) so as to be entitled to the three months’ pay proper given by those acts.
    II. Under a “provisional appointment ” as colonel in a projected corps, which says, “yon will be entitled to pay from date of acceptance until duly notified that your services are no longer required,” the officer may be deemed to be “duly notified” when he knows the order has been issued on his being rejected by the examining board, even though obliged to remain in Washington awaiting its receipt, but rendering no military service from which the government can derive a benefit.
    Messrs. ChipmaN and Hosmee for claimant:
    I. This case comes before the court by original petition, and is founded upon an appointment in the army with grade of colonel, given the petitioner by the United States.
    II. The petitioner was appointed a colonel in what was known as Hancock’s corps, which began its organization under General Orders of the War Department, issued November 28, 1864.
    The appointment was dated December 24, 1864. General Greer was then residing at Mt. Vernon, where he still resides. This appointment was received on the 26th of the same month, and on the 29th was accepted and the Adjutant, General of the army notified accordingly,- the petitioner reporting at the same time by letter to General Hancock for orders.
    Early in January petitioner received orders assigning him to duty in Ohio, where he continued till ordered to Washington city by General Hancock. In April following his appointment petitioner came to Washington, summoned by telegraph order of General Hancock. Here he remained on duty and awaiting orders until July 18, 1865, when he received his final muster-out of service. The order of discharge was dated July 3, 1865, and he was paid to that date only.
    Petitioner has not received the three months’ pay proper provided by act of Congress approved March 3, 1865; nor has he been paid his travel pay from place of discharge to his home; and he has received but 111 per month for each of his two servants. There is due him also the pay of Ms rank from July 3,1865, to July 18,1865, at which last date he first received his order of. discharge.
    III. The petitioner narrates in his testimony the leading facts upon which we rely, which will be found substantially as above related.
    The testimony, including under that title the record evidence, shows clearly the appointment as alleged, the service rendered by virtue thereof, and the failure of the government to pay the sums claimed as a part of the compensation for such service. No question was made by the department which rejected the claim upon any one fact, except as to the petitioner not receiving his final order of discharge at the date of its issuance. There being no testimony submitted upon this one question, the department assumed that the order was received the day it was dated, and could only pay to that time. The evidence shows clearly, however, that although the order was probably prepared July 3, 1865, yet it did not reach the officer effected by it until the 18 th day of thaf month.
    There are presented in this case three distinct items of claim, viz: Pay and allowances as colonel of infantry from the 3d day of July, 1865, to the 18th day of same month; three months’ pay proper and travelling allowances from Washington city to Mount Vernon, Ohio. These we will notice in their order.
    First. As to the ffteen days’ fay and allowances. It is the rule of law, well understood, that if A hires B at a given salary he is bound to pay him for his services to the day he notifies him of his discharge. This principle is too simple and equitable to be misunderstood.
    Second. Three months’ pay proper. This count in our petition is based upon the fourth section of an act of Congress approved March 3, 1865, (13 Stab, 497,) and the act approved July 13, 1866, (14 Stab, 94.) The first act reads :
    
      “ Section 4. And he it further enacted, That all officers of volunteers now in commission, below the rank of brigadier general, who shall continue in the military service to the close of the war, shall be entitled to receive, upon being mustered out of service, three months’ pay proper.”
    The second act reads: “ That section four of an act making appropriation for the support of the army for the year ending June 30, 1866, be so construed as to entitle to the three months’ pay proper provided for therein all officers of volunteers below the rank of briga- . dier general who were in the service on the 3d day of March, 1865, and whose resignations were presented and accepted, or who were mustered out at their own request, or otherwise honorably discharged from the service after the 9th day of April, 1865.”
    The petitioner, if to be regarded an officer at all, comes within the meaning of both laws, and we suppose no question will be raised as to the date of his appointment or discharge excluding him from their benefits.
    The War Department in its report admits as much; but objects^ first, that the appointment was not a commission or quasi commission; second, that he failed to pass examination; and third, that his discharge was not honorable in the sense necessary to secure three months’ pay proper.
    1. As to the commission or appointment. Hancock’s corps was a sort of half eleemosynary society and half lying-in hospital for veterans, who, worn out with active service, were unwilling to lay off the war harness. Its commander, Hancock, was disabled for the field, and was given the organization of this corps as a compliment to his gallantry and sacrifices. The then Secretary of War, with one wave of his magic wand, set the machinery of organization moving by General Orders War Department, No. 287, of November 28, 1864.
    Pursuant to this order the petitioner was appointed with “ the grade of colonel,” which appointment states, “ you will he entitled to pay from date of acceptance until duly notified that your services are no longer required.”
    The language of the law “in commission” means simply that the person claiming its benefits must be properly in the service of the United States.
    2. As to the petitioner’s failure to pass examination. This failure did no more than to furnish ground for the discharge and to terminate his future employment.
    3. As to the allegation of the Adjutant General that the discharge was not an honorable one. We can only regard this desperate plea as cruelly ungrateful. General Greer was among the earliest soldiers of the republic who took the field against rebellion, and bears honorable scars — too many to be subjected to scandalous imputations based upon the mere finding of the board.
    Third. Travel alloivances to place of enrolment. We are confronted by the War Department in our claim for this third count in our petition with an opinion equally as disingenuous as the foregoing. We-are cited G. 0. No. 43, July 10, 1861, and section five act of July_ 22, 1861, (12 Stat., p. 270.)
    The general order cited answers our petition affirmatively. The aet of Congress cited places volunteers upon the same footing as regulars, but says nothing about travel allowance to officers. The act of Congress approved August 6, 1861, legalized the general order cited, and no subsequent law has passed upon this subject. The order referred to, however, must be viewed as in pari materia with existing statutes on the same subject, and these we proceed to notice. The history of legislation upon this subject shows that from the earliest time this travelling allowance has been given officers discharged from the service. The acts of Congress are the following :
    Act of March 3, 1799; sec. 25, 1 Stat. at Large, 755.
    Act of March 16, 1802; sec. 24, 2 Stat. at Large, 137.
    Act of January 11, 1812; sec. 22, 2 Stat. at Large, 624.
    Act of January 29, 1813; sec. 15, 2 Stat. at Large, 796.
    Act of March 3, 1815; sec. 6, 3 Stat. at Large, 225.
    Act of March 2, 1821; sec. 13, 3 Stat. at Large, 616.
    Act of March 19, 1836; sec. 3, 5 Stat. at Large, 7.
    See General Orders War Department No. 43, July 10, 1861.
    See Army Regulations, 1861, par. 1338-’9.
    See Revised Army Regulations, 1863, par. 1369-’70.
    Nothing is clearer than that officers of the regular army were entitled to this allowance at the breaking out of the rebellion.
    By act of Congress of July 22, section 5, 1861, (5 Stat., 7,) volunteers were placed on the same footing as regulars, and by aet of August 6, 1861, General Orders No. 43 was legalized.
    We think an examination of the statutes will show that the government has never raised an army, great or small, for any purpose, without conferring upon the officers discharged the benefits here claimed.
    The act of 1802, the one now in force, is the same as the act of 1799, and gives to all officers “who shall be discharged from service except by way of punishment for an offence * * pay and rations, or an equivalent in money, for such term or time as shall be sufficient to travel from the place where he receives his discharge to the place of his residence, computing at the rate of twenty miles to a day.”
    But the Adjutant General says the provisions of General Orders No. 43, July 10, 1861, (which merely calls attention to what the law then was as to regulars in part,) “ have not been applied except in special cases, where from the duties of the officer (or enlisted man) inconvenience to the public service and the troops would have resulted from furnishing in kind.” “The petitioner’s case was not special; even if it had been, his discharge cannot be considered honorable in the sense necessary to secure travelling allowances.”
    
      So the plain provisions of the law are to give way to the convenience of the service. We can see no inconvenience in paying this allowance any more than any other allowance to which the officer is entitled. The officer being honorably discharged, or rather not having been discharged “ as punishment for some offence,” as the law has it, (as we trust we have shown General Greer to have been,) he then becomes entitled to this allowance as a right, and he may use it to travel home or not, as he chooses.
    The Paymaster General says in his Manual, (June, 1864, edition,) par. 617: “ The laws of March 3, 1799, March 16,1802, January 11, 1812, and January 29, 1813, give an officer or soldier of the regular army, when honorably discharged, travel pay and rations, (or an equivalent in money,) at the rate of twenty miles per day, from the place of discharge to his residence.” Section five, act of July 22, 1861, as we have seen, places regulars and volunteers on a common footing.
    The Deputy Solicitor for defendants :
    On the 24th December, 1864, the claimant in this case received an appointment solicited by him in Hancock’s corps, to be organized under General Orders of the War Department, of November 28,1864. The appointment he had asked was that of colonel. Without fulfilling the conditions precedent for securing a commission, he was discharged for “not having passed the required examination before a duly authorized examining board.” This discharge, it is insisted, does not disparage his claim, as of legal right, to all the advantages and extra allowances conceded to regulars and volunteers on full service, begun and ended under a commission. An appointment. and a commission are supposed, in a military sense, to be correlative terms, though even under the glosses of this brief, they can hardly be said to have become synonyms.
    I. The order discharging him was dated July 3, 1865; and while promulgated, as was usual with all orders from the War Department, through the Adjutant General’s office, it happened not to come under his personal notice till the 18th of July, 1865, fifteen days after such promulgation. He was thus paid up to 3d July, 1865, as on a final muster-out, according to the grade to which he was to be assigned when commissioned in due form. He received no orders to leave his own town in Ohio till the 29th April, 1865, next following his appointment; and on that day, summoned by a telegraphic despatch, he came on to Washington. Here, after waiting till 3d of July, he was discharged under the special orders given in evidence. For fifteen days beyond the date of the order, notice of which failed to reach him, he claims his half month’s pay proper, with six rations per day, and two rations for two servants, with servants’ clothing and servants’ pay, as incident to the grade of colonel.
    II. Nor does the further additional claim made in this case for the three months’ pay proper stand on any firmer foundation in law or equity. The act of March 3,1865, (13 Stat., 497,) and that approved July 13,1866, refer exclusively to officers of volunteers who had been commissioned; and this appointment was an inchoate step, merely looking to such a commission, which, proprio vigore, could alone have brought him within their purview.
    He was not appointed colonel absolutely, hut only on condition that he should pass examination and be confirmed. These conditions performed, the contract then became absolute from the beginning. It was in this respect that he was promised pay from acceptance. The risk of being rejected by the board or Senate, he assumed.
    But it was clearly to the officer’s status, after being appointed, examined, confirmed, and commissioned, that the law granting three months’ extra pay, both in language and in reason, referred. It was to such as should be “in commission,” and not before. The purpose of the acts was to hold out to experienced officers then in the service inducements to remain therein until the war should close, by giving them three months’ extra pay, with time to look for new employment after muster-out.
    The act of July 28,1866, (1 Sess. 39th Cong., ch.299,) for increasing and fixing the military peace establishment of the United States, and which went much further in this respect than any previous law, allowed travel pay to those only who passed the examination.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover $611 73, being for officer’s pay while in the military service.

In December, 1864, Colonel Greer, then being at his residence in Mount Vernon, Ohio, applied to be appointed colonel in what was then known as the “Hancock” or “1st corps,” and received the following reply:

“ WAR DEPARTMENT, ADJUTANT GENERAL’S OFFICE,
Washington, December 24, 1864.
“ To B. A. F. Greer, Mount Vernon, Ohio, through Major General
Hancock, commanding 1st corps.
“ Sir : You are informed that your application for appointment in the 1st corps (Hancock’s) has been approved for the grade of colonel, subject to such action by the examining board as may be in future deemed proper, and to confirmation by the Senate.
“ Should you accept this provisional appointment, you will signify the same to the Adjutant General, and immediately report by letter to Major General Hancock, at Washington, D. C., for instructions, to assist in raising men for the corps. You will be entitled to pay from date of acceptance, until duly notified that your services are no longer required.
“ By order of the Secretary of War :
“ E. D. Townsend,
“Assistant Adjutant General.”

The claimant accepted the provisional appointment, and reported by letter to Major General Hancock, by whom he was ordered to Washington and placed on duty connected with the corps. On the 3d July, 1865, the following order was issued:

“War Department,-Adjutant General’s Office,
Washington, July 3,1865.
“ 51. Colonel B. A. F. Greer, United States veteran volunteers, (1st army corps,) not having passed the required examination before a duly authorized examining board, is hereby honorably discharged the service of the United States.
“By order of the Secretary of War:
“ E. D. Townsend,
Assistant Adjutant General.”

This order did not reach the claimant until the 18th "of July. Between the 3d and 18th he was in Washington, not on actual duty, but expecting the order. During this interval he several times applied to the assistant adjutant general of the corps to know if the order had come, but was informed that it had not been received at the corps headquarters.

For these services tbe claimant received tbe pay and allowances of a colonel of infantry up to tbe 3d of July, 1865, but be was not paid for tbe interval between tbe date of tbe discharge and its receipt by him; nor for bis travelling expenses on returning to bis residence in Ohio; nor tbe three months’ “pay proper” allowed by tbe act of 3d March, 1865, see. 4, (13 Stat. L„ p. 497,) to “all officers of volunteers now in commission, below tbe rank of brigadier general, who shall continue in tbe military service to tbe close of tbe war,” and also'allowed by tbe act of 13th July, 1866, (14 Stat. L., p. 94,) to those “who were in set vice on tbe 3d day of March, 1865, and whose resignations were presented and accepted, or who were mustered out at their own request, or otherwise honorably discharged, from the service after tbe 9th day of April, 1865.”

The right of tbe claimant to recover for these items of pay has been elaborately discussed by bis learned counsel and by the deputy solicitor who appeared for tbe defendants, but we think tbe right of tbe claimant to recover is regulated and limited entirely by the terms of tbe appointment which be accepted, and under which be acted. That order was in terms made “subject to such action by the examining board as may be in future deemed proper, and to confirmation by the Senate.” Neither of these conditions was ever complied with. Tbe claimant failed to pass- tbe examining board; be was never confirmed by tbe Senate; nor did be ever receive a commission from tbe President. He therefore, we think, was not “ in commission” on tbe 3d of March, 1865, within tbe meaning of tbe one act, nor “in service” within tbe meaning of tbe other. And'as to tbe “transportation,” or travelling expenses allowed to officers on leaving tbe service, there is nothing in tbe appointment which gives or promises it to tbe claimant. His rights rest upon that order because be never succeeded in getting beyond it, so as to place them upon tbe laws and regulations applicable to officers actually within tbe volunteer service. Now tbe utmost that tbe order promises is this: “ You will be entitled to pay from date of acceptance until duly notified that your services are no longer required;” and tbe utmost that tbe claimant can ask is tbe pay appertaining to his rank up till tbe time that be was “ duly notified” that bis services would be no longer required.

Tbe only doubts which we have felt relate to tbe interval between tbe 3d and tbe 18th of July; i. e., between tbe times when tbe order of dismissal was issued by tbe defendants and received by the claimant. Without passing upon tbe question whether tbe appointment would in any case warrant Buch a demand, we think that here tbe facts do not warrant sucb a conclusion. It appears by the claimant’s own testimony that he knew of the order having been issued, and remained in Washington awaiting and expecting its receipt. This was an inconvenience to him, but was not such a rendering of actual services in ignorance of the fact that his discharge had been ordered as would entitle a party to pay for the intervening time. To all intents and purposes the claimant was “duly notifiedhe had failed to comply with one of the conditions of his appointment; the government was reaping no benefit from his services, and the delay in transmitting his formal discharge was his misfortune.

The judgment of the court is that the petition be dismissed.  