
    EUGENE HAWKINS v. THE UNITED STATES.
    [No. 22396.
    Decided December 20, 1904.]
    
      On the Proofs.
    
    The Act 22d, April, 1808, provides that if the members of any regiment of oi’gauized militia enlist as a regiment the regimental officers shall “ be officers of corresponding grade in the same organization when it shall have been .received, into the service of the United, States as a part of the Volunteer Army." The claimant is assistant surgeon in the First Indiana National Guard, with the rank of captain. The regiment enlists as a body. In the Regular Army and in the Volunteer Army assistant surgeons have only the rank of lieutenant.
    I.The purpose of the Act 22(1 April, 1S98 (30 Stat. L., p. 302, §0), providing that where a State militia regiment enlisted during the Spanish war in a body as a regiment, the regimental officers shall have the same grade as when in the State service, was to secure the service of regiments already organized without the delay incident to the formation of new regiments. A consideration given for this was that the officers should continue to have the same rank.
    II.The terms “ grade ” and “ rank ” considered and defined.
    III.Where an officer was assured by statute that he should continue to have the same grade and rank which he had at the time of his enlistment, he was thereby assured of the usual, regular consequences of grade and rank, one of which is pay.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. On the 26th dajr of April, 1898, and prior thereto, the claimant was an assistant surgeon, with the rank of captain, in the organized militia of the State of Indiana in service therein in the First Regiment of Infantry, Indiana National Guard.
    II. The regiment was organized by virtue of a law of the State of Indiana, as follows:
    “7701. Regimental and battalion staffs. 18. The regimental staff shall consist of a surgeon, with the rank of major; an assistant surgeon, with the rank óf captain; an adjutant and a quartermaster, each with the rank of first lieutenant, to be commissioned by the governor, upon recommendation of the regimental commander. The battalion staff shall consist of an adjutant, with the rank of first lieutenant, to be commissioned by the governor, upon the recommendation of the battalion commander.”
    III. At the outbreak of the Spanish war the members of the regiment enlisted in the Volunteer Army of the United States in a body as such regiment, and it was thereafter designated as the One hundred and fifty-ninth Indiana Volunteers.
    IV. The claimant ivas appointed by. the governor of Indiana assistant surgeon, with the rank of captain, in the One hundred and fifty-ninth Indiana Volunteers, the corresponding grade to that held by him in said First Regiment of Infantry, Indiana National Guard.
    V. The claimant served in the One hundred and fifty-ninth Volunteers as assistant surgeon from April 26, 1898, to November 23, 1898. During that time he was only paid as a first lieutenant, mounted, at the rate of $133.33 a month.
    VI. He served honorably and faithfully within the limits of the United States and was honorably discharged and mustered out with his regiment on the 23d day of November, 1898.
    VII. On the TTth day of September, 1898, a furlough of one month for the enlisted men of said regiment, and a like leave of absence for the officers, including the claimant, beginning September 18, 1898, were granted under General Orders, No. 130, Adjutant-General’s Office, 1898.. 1
    VIII. While on such leave the claimant was ordered back to duty by competent authority, and on October 11, 1898, reported for duty'in connection with the physical examination of the One hundred and fifty-seventh Indiana Volunteers, pursuant to instructions from the Secretary of War,, which authorize the detail of the regimental medical officer of one organization to examine physically the officers and men of another. He continued on this duty until October 23, and while on said duty was occupied the whole of each day.
    On October 15,1898, the officers of his regiment, including the claimant, were placed on waiting orders until November 10.
    
      IX. If the claimant is entitled to be paid as a captain, mounted, instead of a first lieutenant, mounted, during the whole period of service, the amount due him under finding vi is $230.
    If he is entitled to one month’s extra pay as a captain, mounted, the amount due him under finding vm is $166.G6. If he is entitled to extra pa}^ as a first lieutenant, mounted, the amount due him is $133.33.
    If he is entitled to six days’ extra pay from October 11 to October 17, the amount due him under finding vm is $33.33.
    
      Mr. W. B. King for the claimant. Messrs. George A. and William B. King were on the brief.
    
      Mr. George M. Anderson (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

At the outbreak of the Spanish war, it appears to the court, the military forces of the United States consisted of three classes: The first was the Regular Army; the second was the volunteer regiments; the third was the State militia regiments which were received into the service as they then existed. As to the second class, the Act 22d April, 1898 (30 Stat. L., p. 362, sec. 6), enacted, specially, that each regiment of the Volunteer Army shall have one surgeon and two assistant surgeons. This was contained in the first proviso to the sixth section. The second proviso enacted that when the members of any regiment of the organized militia of any State shall enlist in the Volunteer Army in a body as a regiment the regimental officers “ in service with the militia organizations thus enlisting may be appointed bjr the governors of the States and Territories, and shall when so appointed be officers of corresponding grades in the same organization when it shall have been received into the service of the United States as a part of the Volunteer Army.”

There was a manifest advantage to the Government in securing the service of militia regiments as they were then already organized. It prevented delay in the enlistment of men; it diminished uncertainty as to the character and capacity of the officers; it brought together from the beginning of the service officers who knew their men, and men who knew their officers. A consideration for this advantage, apparently intended by the statute, was that the officers should continue to have the same rank after entering the service of the United States which they held while in the State service. "Where an officer was a captain, he was to continue to be a captain; where an officer was a major, he was to continue to be a major. In other words, the United States agreed to take a regiment just as it stood.

This was the opinion of Attorney-General Boyd (22 Op. Attorneys-General, 536). The case before him, indeed, required that he should go further than the limits of the case now before the court. The organizations known as “ volunteer regiments” were restricted to two majors; but a regiment of militia so taken into the service from the State of Minnesota had three majors under its State organization. The Attornej^-General held that a militia regiment was exempt from the operation jdí the first clause of section 6, and that when the Government took the regiment it took with it three majors. The Attorney-General went further than this, and held that if a vacancy should occur by death or resignation, the governor of the State had the right to fill the vacancy, so that the regiment should contain the number of officers with the grade which the law of the State provided for them.

If the intent of Congress was that the law should have the meaning ascribed to it by the defendants, the second proviso should have said that when the members of any regiment of organized militia in any State shall enlist in the Volunteer Army in a body as such regiment, they shall nevertheless be subject to the restrictions as to the number or rank of officers of the regiments of the volunteer forces. Instead of saying so, it said that these officers of militia regiments shall “ be officers of corresponding grades in the same organization when it shall have been received into the service of the United States.” To hold otherwise would be to deprive this language of all meaning. It undoubtedly was intended to mean something in the legislative mind, and that something was that it should constitute an inducement to militia regiments to enlist in the service of the United States without reorganization.

The terms “ grade ” and “ rank ” have been carefully considered by this court and clearly defined:

“ Grade is a step or degree in either office or rank, and has reference to the divisions of the one or the other or both, according to the connection in which the word is employed.” (Per Richardson, J., Wood v. United States, 15 C. Cls. R., 151, 160.)
“ Every lieutenant has the grade of his class and also a grade in his class, by which his pay is ascertained.” (Per Scofield, J., McClure v. United States, 18 C. Cls. R., 347, 348.)
“ Navy officers are classified (1) according to duty, office, or title; (2) according to relative importance or title;. (3) according to compensation. All of these classes come within the normal meaning of the words ‘ grade or rank.’ ” (Per Scofield, J., Rutherford v. United States, ib., p. 339.)

The claimant in the present case was an assistant surgeon in the First Indiana National Guard, with the rank, as provided by the law of that State, of captain. The act of Congress, before cited, assured him that if he would go with his regiment into the service o'f the United States he should continue to hold in their service a corresponding grade; and grade included rank. To tell an officer that he shall continue to hold in their service a corresponding grade; and in some latent way that he shall not continue to have the usual legal consequences of grade and rank, one of which is pay, would be to ascribe to Congress an unworthy purpose. It is the opinion of the court, therefore, that he is entitled to the pay of a captain of cavalry, such as would be paid to a surgeon in the service of the United States having the rank of captain.

The judgment of the court is that the claimant recover the difference between the pay he received as first lieutenant mounted and that of captain mounted, also the sum of $33.33 for seven days’ extra pay as captain mounted, amounting to $263.33.  