
    CHARLES MORTON v. THE UNITED STATES.
    [No. 13963.
    Decided February 18, 1884. ]
    
      On the Facts.
    
    The simple question in this case is whether “service” as a cadet at West Point is to be reckoned as “sa’vice” in the Army within the meaning of the Appropriation Acts 1881,1882.
    I.The service of a cadet at West Point is apart of an officer’s" actual time of service in the Army” within the meaning of the Appropriation Aots 1881, 1882 (21 Stat. D., p. 346, ch. 79; 22 id., p. 117, ch. 257).
    II.The work physical and mental which a cadet has to do, and the authority and discipline! to which he is subject, are unquestionable characteristics of military service.
    III.The Revised Statutes (§ 1094) classify “the corps of cadets" as a part of the Army; and (§ 1323) make “cadets subject at all times to do duty in such places and on such service as the President may direct”; and provide (§ 1321) that they may be “dismissed from the service.” The Regulations for the Military Academy declare that they may be dismissed “the service.” Both recognize the status of a cadet as “service.”
    
    
      The Reporters’ statement of the case:
    This case the claimant brought by the voluntary filing of his petition. In Major Babbitts Case (16 O. Cls. E., 202; affirmed 104 U. S. E., 767) the decision rested upon the Act 18th June, 1878 (1 Supplem’t E. S., p. 362, § 7), which assured longevity pay, not for u the actual time of service in the Army,” but to officers u who have served as7’ “ enlisted men in the armies of the United States, regular or volunteer.77 It was held that the act applied to officers coming into the Army from the volunteer service or from the ranks, but not to those coming in through West Point.
    The following are the facts in this case as found by the court:
    I.' The claimant served as an.enlisted man in the volunteer military forces of the United States from the 29th day of July, 1861, to the 14th day of September, 1864, and was then honorably discharged the said service of the United States by reason of the expiration of his term of enlistment.
    
      II. The claimant 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 on the-day of January, 1866, to date from July 1, 1,1865.
    III. On the 1st day of July, 1865, when the said claimant was so admitted as a conditional cadet, he entered into an agreement as required by law, in the words and figures following, to wit:
    “No. 41.
    “United States Military Academy,
    “ West Point, New York, July 1st, 1865.
    “I, Charles Morton, of the State of Missouri, aged nineteen years three months, having been selected for an appointment as cadet in the Military Academy of the United States, do hereby engage, with consent of my father, in the event of my receiving such appointment, that I will serve in the Army of the United States for eight years, unless sooner discharged by competent authority. And I, Charles Morton, do solemnly swear that I have never voluntarily borne arms against* the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise the functions of any office whatever under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or' constitution within the United States hostile or inimical thereto. And I do further swear that to the best of my knowledge and ability I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
    “ Charles Morton.
    “Sworn and subscribed to, at West Point, New York, this twelfth day of March, eighteen hundred and sixty-six, before ‘ me.
    “E. O. Boynton,
    “ Captain and Adjutant.”
    The said claimant remained at said Academy from the 1st day of July, 1865, performing all the duties enjoined upon him by law or imposed by his superior officers, until the said 15th day of June, 1869, when he was duly graduated from said Academy; and therefore he was duly appointed and commissioned by the President of the United States a second lieutenant in the Third Eegimenb of Cavalry of the United States, which commission bears date on the 24th day of June, 1869, to date from 15th June, 1869; and on the 10th day of October, 1876, he was duly promoted and commissioned by the President of the United States a first lieutenant in the same regiment, to take effect from September 25, 1876, which position he held and performed the duties thereof up to the 31st day of March, 1883, He duly accepted the appointments and promotions herein stated, and faithfully discharged the duties they imposed upon him. Since the said 1st day of July, 1865, up to the 31st day of March, 1883, he remained continuously in the service of the United States in a military capacity, and he has discharged the various duties imposed upon him by law in the different positions which he has been engaged or enlisted in, and appointed and ^promoted to.
    V. Prior to and since 1858 each person appointed a cadat at the United States Military Academy received a written paper, signed by the Secretary of War, which is as follows, the blanks being filled by the name of the person appointed and with the appropriate dates:
    “ To whom, it may concern:
    
    “Know ye that the President has been pleased to appoint --, a cadet of the United States Military Academy, to rank as such from the-day of--, 18 — .
    “Given under my hand and seal, at the War Department, this--day of -, in the year of our Lord 18 — , and of the Independence of the United States the---.
    u___
    “ Secretary of War.”
    
    Claimant received a document, or warrant, written and executed in the above form, when he entered the United States Military Academy in 1865.
    VI. If the period during which the claimant was a cadet at West Point is to be regarded in the computation of his service or longevity pay, then, from February 24, 1881, to March 31, 1883, he has been short paid in the sum of $169.07, and is entitled to that amount; otherwise not.
    
      
      Mr. J. W. Stryolcer for the claimant:
    A cadet pursuing his studies and performing his duties at West Point is in service in the Army within the meaning of the clause in the Army appropriation bills for the fiscal years ending June 30, 1882 [approved February 24, 1881], and June 30, 1883, to wit: “The actual time of service in the Army or Navy, or both, shall be allowed all officers in computing their pay.”
    
      Mr. F. U. Howe (with whom was the Assistant Attorney-General) for the defendants:
    As this longevity increase is a benefit, the statute must be construed strictly against the claimant and in favor of the government granting it. (Donnelly’s Case, 17 C. Cls. JR., 105.)
    Do the words “and the actual time of service in the Army or Navy, or both, shall be allowed all officers,” &c., import that time of study at West Point is to be so allowed? Is that period when the raw boy is being fitted at the expense of the government to be of some use to it thereafter, in its Army or Navy, “time of service” within the meaning of the act? Or, rather, does the expression “time of service” point so directly to this period of probation as to leave no doubt of the clear intent of the legislature?
    I admit that in a sense a cadet is “in the Army.” He is an officer of an inferior class, as held in the Babbitt Case. But is he in service in the Army?
    Webster has defined the word “service” as follows: “Duty performed in, or appropriate to, any office or charge; official function; hence, specifically, military or naval duty; performance of the duties of a soldier.”
    It is submitted that the court will not hold that the performance of academic duty, viz, studying, attendance at recitation, drilling, &c., can be construed to be such service in the Army as was intended by the legislature when they interjected this sentence into the regular pay clause of the annual appropriation bill for the support of the Army. It is not the “ performance of the duty” of a soldier or of an officer “in the Army.” The principle upon which longevity pay is founded, as laid down in Thornless Case (18 O. Cls. B., 117) is opposed to this construction.
   Drake, Ch. J.,

delivered the opinion of the court:

The claimant, a first lieutenant of cavalry, sues for longevity pay to which he considers himself lawfully entitled, but which has been withheld from him. He was for four years a cadet at the Military Academy at West Point, where he graduated. If those four years are to be counted as a part of his service in the Army, he is .entitled to the longevity pay; otherwise not.

The general provision of law upon which the right of officers to that description of pay primarily rests, is section 1262 of the Bevised Statutes, in these words:

“ There shall be allowed and paid to each commissioned officer below the rank of brigadier-general * * * 10 per centum of their current yearly pay for each term of five years of service.”

This claim, hqwever, does not rest on this provision alone, but upon it in connection with a clause, found in the Army appropriation Act for the fiscal year ending June 30,1882 (21 Stat. L., 346, chapter 79), and also in the like act for the fiscal year ending June 30, 1883 (22 Stat. L., 117, chapter 254), in these words:

“Additional pay'to officers for length of service, to be paid with their current pay, and the actual time of service in the Army * * * shall be allowed all officers iu computing their pay.”

The point of contention is in connection with the words “ actual time of service in the Army?

As the claimant’s commission as a second lieutenant of cavalry was to date from June 15, 1869, he cannot recover if his time of service began only on that day. To entitle him to recover the demand sued on, he must be allowed : 1. His period of service since he was commissioned; 2. The time he was a cadet at the Military Academy; and 3. The time of a previous service' in the volunteer military forces of the United States in 1861-1864. As to the first and third there is no controversy; the contest is over the second; and it presents a question not hitherto judicially passed on.

That the claimant, while at the Academy, was in some kind of a service, that is, duty performed under orders of superiors, will not be questioned by any one who knows anything about the work, physical and mental, that a cadet there has to do, and the character of military authority and discipline to which he is subject. His “actual time of service” is every day that he is there, except when he is on the sick list. Ho private soldier in the Army is more in service than a cadet at West Point; though, of course, the characters of the two services are quite different.

But the point is, whether that was “service in the Army? The defendants, resting upon an opinion given by Attorney-General MacVeagh, contend that it was not; the claimant insists that it was. We concur with the claimant, upon grounds which we will very briefly state.

In section 1094 of the Bevised Statutes, declaring what “ the Army of the United States shall consist of,” we find uthe corps of cadets of the United States Military Academy” named as a part of the Army; and section 1323 provides that—

“ Cadets shall be subject at all times to do duty in such places and on such service as the President may direct.”

Section 1321 says, too, that a cadet who refuses to take a prescribed oath of allegiance “shall be dismissed from the service?

Furthermore, the Begulations for the Military Academy, adopted by the President, declare in fifteen different instances, offenses for which a cadet may be dismissed, not from the Academy, but “from the service?

In view of these plain and express provisions of law and regulations, we are at a loss to understand why a cadet at the Military Academy is not in “service in the Army.” That he is pursuing there the studies and passing through the discipline which are to fit him for higher duty and perhaps great achievements in military life, does not, in our opinion, at all affect or even touch the status given him, in unmistakable words, by the laws under which both the Academy and the Army exist.

The judgment of the court is, that, the claimant recover the amount demanded in his petition, $169.07.  