
    LANDER’S CASE.
    (8 Court of Claims R., 242; 92 U. S. R., 77.)
    John Lander, appellee, v. The United States, appellants.
    
      On the defendants’ Appeal.
    
    
      The Court of Claims held in Kelly’s Case, (5 C. Cls. B.,p. 476,) inhere the proper military authorities allowed a deserter to he restored to duty without trial, upon condition that he malee good the time lost hy desertion, and he did so, and was then honorably discharged, that it was a contract performed, and the soldier entitled to recover the bounty promised him on his enlistment if he should serve till honorably discharged. The Supreme Court, in the same case, went further, and held that “ the honorable discharge of the deserter was a formal final judgment passed by the Government upon the entire military record of the soldier, and an authoritative declaration that he left the service in a status of honor,” and that “it amounted, of itself, to the removal of any charge or impediment in the way of his receiving bounty.” (8 C. Cls. B.,p. 110; 15 Wallace B.,p. 34.) In the present case, the soldier is restored to duty with the loss of all pay or allowances due or to become due. Subsequently, he is honorably discharged. The court below hold, under the decision of the Supreme Court in Kelly’s Case, that, the discharge being “a formal final judgment passed by the Government upon the entire military record of the soldier,” it in effect purged his offense and annulled its consequences. Judgment for the claimant. The defendants appeal.
    
    I. An honorable discharge of a soldier from service does not restore to him pay and allowances forfeited by a sentence of a military court-martial for his desertion.
    II. The term “ alloivances” in the sentence of a military court-martial includes bounty, which at the time of enlistment was assured to the soldier if he should faithfully serve until honorably discharged.
    III. A soldier’s contract of enlistment is an entirety. If service for any portion of the time is criminally omitted, the pay and allowances for faithful service are not earned.
    IY. The honorable discharge of a deserter is a formal, final judgment x>assed by the Government upon the entire military record of the soldier, and amounts to a removal of any charge or impediment in the way of his receiving bounty, as was held in Kelly's Case, (8 C. Cls. K., p. 110; 15 Wallace R., 34,) if no conditions were attached to his restoration, or if they were subsequently complied with. But when conditions, inconsistent with his ever receiving pay or bounty, are attached to his restoration or are imposed as a punishment for his offense, an honorable discharge does not relieve him from the consequences of the judgment of a military court, nor entitle him to pay or allowances which that court adjudged to be forfeited.
    
      
      The Reporters1 statement of tbe ease:
    The court below found the following facts:
    The petitioner was a private soldier in the Army, and claims pay and bounty, and the court finds the facts to be:
    That the petitioner enlisted in the Army for three years, was enrolled on the 1st January, 1864, in Company B, Second Arkansas Volunteers, for a service of three years; he was mustered into the service January 16, 1864, to take effect from date of enrollment; he deserted November 12,1864, and was arrested June 2, 1865 ; he was restored to duty with the loss of all pay and allowances due or to become due during the term of his enlistment; he was honorably discharged on the 8th of August, 1865.
    There was due him at the time of his discharge—
    As pay-:...,. $296 25
    As bounty-money. 300 00
    Making. 596 25'
    And there was due from him—
    For ordnance and ordnance stores. $25 14
    For clothing.. 62 51
    - 87 65
    Balance. 508 60
    And the court find as conclusions of law—
    That the said Landers’s honorable discharge from the military service of the United States purged him of the offense of desertion, and removed all impediment to his recovery of his pay and bounty.
    That said Landers’s case is not within the joint resolution of March 1, 1870. '(16 Stat. L., 370.)
    
      Mr. Assistant Attorney-General Smith for the United States, appellants:
    The Court of Claims ¡m upon that of Kelly, in 15 Wallace, 34, while it is widely variant from it in fact aud law. Kelly eulisted February 24, 1884-, deserted on account of his mother’s sickness October 3, 1865, aud returned voluntarily to duty a few weeks later, and subsequently made up the time lost by his absence, thus performing the condition-precedent to his obtaining an honorable discharge. The war had virtually closed when Kejly deserted, and, in view of the inducing cause and of his voluntary return, this light condition was imposed. Landers deserted November 12, 1864, while the war was still raging, and was only returned to his company under arrest June 2, 1865, after the fighting was all over. Therefore the more severe condition or punishment of a forfeiture of all pay and allowances was imposed, subject to which the discharge was given him.
    The Court of Claims erroneously assumes in its opinion that this court held in Kelly’s case that the offense of desertion was purged by the honorable discharge. Such is not the case. Lower to try the soldier, or further to punish him for the desertion, is lost by his restoration to duty ; and thenceforth there is nothing to be purged ; but as part and condition of that restoration “ by competent authority” there may be decreed a forfeiture of pay and allowances. (Army Reg., pp. 159, 160; Rev. Stats., 4749; Judge-Ad. Gen. Holt’s Op., p. 139, §§ 7 and 9; 136, § 1.) If the restoration be, in effect, a pardon, (as treated by the Court of Claims,) then it may be granted upon condition by the authority competent to grant it at all. (Exparte Wells, 18 How., 307, 314.)
    The resolve approved March 1, 1870, No. 18, § 2, directs that “ moneys withheld because of the desertion of any person from the volunteer forces of the United States,” shall not be paid to him unless the record of desertion “shall have been canceled on the sole ground that such record had been made erroneously and contrary to the facts.” (16 Stat. L., p. 370.)
    As Mr. Justice Swayne remarked the other day, in the opinion in jRaymond v. Thomas, “the meaning of the legislature is the law,” as this and other courts have decided over aud over again. However much text-writers may philosophize, and courts may refine' about it, Congress has power to pass a law that shall have a retroactive effect; the only question is that of intent, whether or not such intention is sufficiently expressed. (Colder v. Bull, 3 Dallas, 2915 Satterlee v. Matthewson, 2 Peters, 380 ; Watson v. Mercer, 8 Peters, 110; Moon v. Burden, 2 Excli., 22 5 Kelley v. Kilso, 5 Ohio St., 198 Butler v. Toledo, 5 Ohio St., 231; Scott v. Smart, 1 Mich., 295 ; Baugher v. Nelson, 9 Gill., 299.)
    We think a perusal of this statute in the light of history and surrounding circumstances will satisfy the mind of each member of the court that Congress intended its provisions to apply to moneys then withheld; and if each individual be thus satisfied, the court cannot otherwise declare..
    
      Messrs. Chipman & Hosmer and Durant & Honor for the appellee:
    The plain and definite language adopted by this court in Kelly1 s Case, (15 Wall. R., p. 36,) quoted from Joseph Holt, and again quoted in the opinion of the Court of Claims, establishes the presumptio juris et de jure of the thing adj udged; that is, the honorable discharge is a formal, final judgment in favor of the soldier upon his entire military record. This discharge cannot be impeached collaterally; nor can any officer of the Pay Department, no matter how much his “nature’s plague” may be “ to spy into abuses,” disregard its contents, or refuse to give it its legal effect.
    The untenable ground is taken by the Government that the “honorable discharge” has its legal effect only in case of a soldier of the Regular Army, not in the case of a volunteer. But the establishment of this distinction would be suicidal to the United States. The existence of a republic can never depend upon its regular army, but must, ex necessitate, always depend on its volunteers. (Constitution, art. 1, § 8, par. 15.)
    And in making these distinctions “ we need to be very wary, for this caveat the law giveth uM lex non distinguit nee nos distin-guere débemus, and certainly lex non distinguit, but where omnia membra dividentia are to be found out and proved by the law itself.” {Calvin1 s Case, 7 Reports, 10.)
    It is quite clear that no true distinction can be drawn by a decision in this case between a volunteer and a soldier in the Regular Army as to the operation and effect of an “honorable discharge.” The effect of res judicata is alike for all classes and conditions of suitors, and is always a truth. Bes judicata pro vertíate accipitur. So too is the effect of an “honorable discharge.” It is alike for all classes and conditions of soldiers.
    
      It produces the same result, so far as the Government is concerned, in the case of a guerrilla or a spy as in the case of a soldier of the Eegular Army or of a volunteer.
    And on the second objection to Landers’s recovery herein, the arguments of the Court of Claims will be sufficiently satisfactory to the most timorous jurist. Neo enim placet Janus in legi-lus. The vested right in Landers to pay and bounty when he received his u honorable discharge,” on August 8,1865, could not be disturbed by any subsequent legislation.
   Mr. Justice Field

delivered the opinion of the court:

This was an action in the Court of Claims by the petitioner for pay and bounty as a soldier in the Army of the United States. It appears from the findings of the court that the petitioner enlisted in the Army for three years, and was enrolled on the 1st of January, 1864; that he was mustered into service on the 16th of the month, his service to take effect from the enrollment; that he deserted on the 12th of November following, and was arrested on the 2d of June, 1865, and was restored to duty with the loss of all pay and allowances due or to become due during the term of his enlistment, and that he was honorably discharged on the 8th of August, 1865. His claim was for pay for the whole period from his enlistment to his discharge, including the time of his absence by desertion, and for the bounty allowed to a soldier upon his honorable discharge at the expiration of his service.

The Court of Claims held that he was entitled both to pay and bounty, and gave judgment for the whole amount claimed, being of opinion that his offense of desertion was purged by his honorable discharge within the decision of this court in United States v. Kelly, (15 Wall. R., p. 34; 10 C. Cls. R., p. 110,) and that his case was not covered by the joint resolution of Congress of March 1, 1870.

We have looked into the record in Kelly’s Case, and we find it entirely different from this case. Kelly had served from February, 1864, until October, 1865, during the active operations of the war, and then deserted to visit his parents, reported to be seriously ill at their home. After an absence of some weeks he voluntarily returned, and subsequently made up for the time lost by his absence. The fact that the war had virtually closed at the time, the motives which caused the desertion, and his voluntary return to duty, no doubt had their influence with his commander, upon whose recommendation he was restored to duty without trial, subject only to the condition that he should make good the time lost by his desertion. It was not pretended that his honorable discharge subsequently granted gave him a right to pay during the period of his absence from the service, or would have dispensed with the forfeiture of pay prescribed by the Army Regulations had any pay been due at the time. (See Army Regulations, 158 and 1358.) He only claimed subsequent pay and the bounty, after serving the full period of his enlistment and the additional time lost by his desertion.

In this case the petitioner deserted at a time when the war was at its height, and no palliation was proffered for the offense, if any could possibly exist. He kept out of the service,, and thus out of danger, during the severest period of the war,, and was only returned to his company under arrest. And though he was restored to duty, it was with the forfeiture of his pay and allowances for the entire period of his enlistment.

It does not appear from the record before us whether this forfeiture was imposed by order of the commander of the forces from which he deserted, or by the judgment of the court-martial. Forfeiture of pay and allowances up to the time of desertion follows from the conditions of the contract of enlistment, which is for faithful service. The contract is an entirety, and if service for any portion of the time is criminally omitted, the pay and allowances for faithful service are not earned. And for the purpose of determining the rights of the soldier to receive pay and allowances for past services, the fact of desertion need not be established by the findings of a court-martial; it is sufficient to justify a withholding of the moneys that the fact appears upon the muster-rolls of his company. If the entry of desertion has been improperly made, its cancellation can be obtained by application to the War Department. But forfeiture of pay and allowances for future services, as a condition of restoration to duty, can only be imposed by a court-martial. (Winthrop’s Digest of Opinions of the Judge-Advocate General, p. 269, par. 27.) The validity of the forfeiture here is not raised by counsel. We must, therefore, presume, as the case is presented to us, that the petitioner was brought to trial for his offense before such a court and was convicted, and that the forfeiture imposed was the sentence of the court. 1

In Kelly’s Case, as already stated, the deserter was restored to duty without trial upon his voluntary return, and it was with reference to a case of that kind that the Judge-Advocate-General gave the opinion which is cited with approval by this court. Iu such a case an honorable discharge of the soldier, as held by that officer, dispensed with any formal removal of the charge of desertion from the rolls of his company, and amounted of itself to a removal of any impediment arising from the fact of desertion to his receiving bounty. But neither the Judge-Advocate-General nor this court, in adopting his opinion, went to the extent of holding that an honorable discharge of a soldier dispensed with all the conditions attached to his restoration to duty which a military tribunal may have imposed upon him for a previous military offense. An unconditional restoration, or one with conditions subsequently complied with, may leave the soldier who has deserted in as favorable condition for subsequent pay and bounty as though no offense had been committed by him. But it is otherwise when conditions inconsistent with such pay or bounty are attached to the restoration, or are imposed as a punishment for a previous military offense. Assuming that the conduct of the soldier in this case, subsequent to his restoration to duty, may have entitled him to an honorable discharge, and that such discharge was not inadvertently granted, the discharge could not relieve him from the consequences of the judgment of the military court, and entitle him to the pay and allowances which that court had adjudged to have been forfeited. The forfeiture must first be removed either by its remission in terms, or by the reversal of the judgment, or -the pardon of the President.

The bounty which the petitioner claimed was included in the allowances forfeited. Under the term “allowances” everything was embraced which could be recovered from the Government by the soldier in consideration of his enlistment and services, except the stipulated monthly compensation designated as pay. This is substantially the conclusion reached by the late Attorney-General, Mr. Hoar, after full consideration of the statutes bearing upon the question, (Opinions of Attorneys-General, vol. 13, pp. 198,199,) and such, we are informed, has been the uniform .ruling of the War Department.

The conclusion we have thus reached renders it unnecessary to determine whether the case of the petitioner is covered by the joint resolution of Congress of March 1, 1870, forbidding the payment of moneys withheld from a deserter from the volunteer forces, unless the record of his desertion has been canceled because made erroneously and contrary to the facts.

It follows, from the views expressed, that the judgment of the Court of Claims must be reversed, and the cause remanded with directions to dismiss the petition; and it is so ordered.  