
    KELLY’S CASE. Thomas W. Kelly v. The United States.
    
      On the Proofs.
    
    
      On the Zd October•, 1865, a private in the Nineteenth United States Infantry absents himself without leave by reason of his mother's illness. At the expiration of six iveelcs he voluntarily returns and surrenders himself as a deserter. Upon the recommendation of his regimental commander he is “ restored to duty without trial, with the condition that he make good the time lost hy desertion.” He complies with the condition, performs the extra service, and is ultimately honorably discharged. The discharge is in the usual form of those given to honorably discharged soldiers. The Second Comptroller decides that a deserter ipso facto forfeits all pay, and that not even a pardon can give him what he has virtually placed in the Treasury.
    
    Where a soldier, amid extenuating circumstances, and after hostilties have ceased, is absent without leave, and voluntarily returning to his command, is hy order of the general commanding the department, on the recommendation of his regimental commander, “restored to duty without trial, with the condition that he malee good the time lost by desertion,” and he does so, (he remaining in service after his period of enlistment has expired, and being then honorably discharged,) his bounty is not forfeited. The contract for continuous service, "broten by the desertion, is revived upon terms and conditions proposed to the claimant, accepted by him, and faithfully observed. No other or additional conditions can now be imposed.
    
      Messrs. Ghvpman & JECosmer for tbe claimant:
    The petitioner in this case claims $225 balance of $400 bounty promised him by the government on his enlistment, February 12, 1864, -as a private of Company D, Nineteenth regiment United States Regular Infantry. This claim rests upon the joint resolution of Congress passed January 13,1864, (13 St-at., 400,) and as promised by War Department orders of February 6, 1864. (Circular No. 15, hereinafter quoted.)
    The Paymaster General, in the return of the War Department, says: '
    “An examination of the records of this office shows that Thomas W. Kelly, late Company D, Nineteenth United States Infantry, was, by his contract of enlistment, entitled to the extra bounty of $400, payable in certain stated instalments.
    “After having received, by successive instalments, the sum of $175, he deserted the service of the United States, at Augusta, Georgia, October 3, 1865, and thus forfeited the remainder of his bounty, amounting to $225.
    “As a restoration to duty without trial does not remove the stigma of desertion, the balance of bounty thus unpaid was withheld by the paymaster on his final payment, April 20,1867, and, so far as known to this office, has not since been paid to him.”
    The foundation of the claim here made, as well as the defence thereto, will still further appear from the following, found in the same return:
    “WAS. DEPARTMENT,
    “Adjutant General’s Oeeioe,
    “ Washington, May 13,1869.
    “It appears from the records of this office that Thomas W. Kelly enlisted February 12,1864, at Detroit, Michigan, to serve three years; he was assigned to Company D, Nineteenth United States Infantry, and deserted October 3,1865; he was restored to duty without trial, with the condition that he make good the time lost by desertion, from October 3, 1865, to December 11,1865, by Special Orders No. 79, dated Headquarters Department of Arkansas, April 19, 1866; and was discharged April 20,1867, at Fort Gibson, C. N., by expiration of term of service. The discharge certificate of Thomas W. Kelly, Company D, Nineteenth United States Infantry, signed by Major Pinckney Lugenbeel, Nineteenth United States Infantry, showing him to have enlisted on the 12th of February, 1864, for thee years, and to have been discharged April 20, 1867, by expiration of service, at Fort Gibson, C. N., appears to be genuine, and is the usual form of discharge, and indicates that, except his desertion, his service was honorable.
    “E. D. TOWNSEND,
    
      “Adjutant General?
    
    It is proper that the following order restoring the petitioner to duty without trial be here given, and is found on page 4 of same return:
    “[Special Orders No. 76. — Extract.]
    “ Headquarters Department oe Arkansas,
    
      “Little Boole, Arlcansas, April 19, 1866.
    # * # # * * *
    “4. Upon the recommendation of his regimental commander, Private Thomas W. Kelly, Company D, First Battalion, Nineteenth United States Infantry, charged with desertion, is hereby restored to duty Avithout trial, with the condition that he make good the time lost by his desertion, viz, from October 3, 1865, to December 11, 1865.
    
      “ By command of Major General J. J. Reynolds:
    
      “ CHAS. E. HOWE,
    • “ Captain, Assistant Adjutant General?
    
    1. Let us first look at the legislation respecting the payment of bounty money to soldiers. The term bounty money is used, because there is a marked and important difference in the provisions of law betAveen money bounty and land bounty.
    It is to be obsenmd that the act of July 22 and August 6, 1861, giving $100, act of March 3, 1863, and the act of July 28, 1866, giving additional bounty to certain classes, make an honorable discharge essential to the securement of bounty money. All the other laws are silent on that point, and make the payment of bounty conditional on the mere act of enlistment and muster, or the length of time the soldier served, or on the fact of his being disabled by wounds or disease. Neither deserters nor desertion are mentioned. In legislation giving bounty land and pensions, we find that deserters are mentioned as excluded from such benefits. Other instances may be found, but those named are sufficient for our purpose to establish the fact that the law discriminates in express terms, so as not to make the mere act of desertion a disqualification to receive boimty money. In the face of these facts it cannot be urged that the intention o legislation was to do what its silence leaves undone.
    2. Now as to the second point. Was the bounty forfeited by legal proceedings or court-martial?
    As Kelly was not subjected to a trial by court-martial, but was restored to duty without, he can only be held subject to the mandates of the law under which he was thus restored.
    Paragraph 158, page 29, Kevised Regulations, 1864: “Deserters shall make good the time lost by desertion, unless discharged by competent authority.”
    Paragraph 159: “No deserter shall be restored to duty without trial, except by competent authority.”
    Paragraph 160: “Rewards and expenses paid for apprehending a deserter will be set against his pay when adjudged by a court-martial, or when he is restored to duty without trial on such condition.”
    Paragraph 161: “In reckoning the time of service and the pay and allowances of a deserter, he is to be considered as again in the service when delivered up as a deserter to the proper authority.”
    Paragraph 162 provides that he shall not receive pay while awaiting trial, but shall be furnished necessary clothing.
    Paragraph 1357: “No officer or soldier shall receive pay or allowances for any time during which he was absent without leave, unless a satisfactory excuse for such absence be rendered to his commanding officer, evidence of which, in case of an officer, shall be annexed to his pay account.”
    Paragraph 1358: “Every deserter shall forfeit all pay and allowances due at the time of desertion. Stoppages and fines shall be paid from his future earnings if he is apprehended and continued in service, and if they are adjudged by a court-martial; otherwise from his arrears of pay.”
    Paragraph 1359: “No deserter shall receive pay before trial, or till restored to duty without trial by the authority competent to order trial.”
    There is no other condition imposed upon a deserter by the mere operation, of law; whatever else can be imposed must be by due legal process. No proceedings were ever instituted in bis case, and after bis restoration to duty without trial could not be, any more than be could bave been subjected to a second trial for the same offence after be bad been once convicted of, and punished for, it.
    3. Let us examine.the third point.
    Does desertion per se so taint the status of a soldier as to disqualify him to receive bounty be otherwise could obtain1?
    If such a taint is thus conveyed into the status of a soldier, it must be by force of some law. We bave given reference to all the laws providing for bounty money to soldiers, and deserters are not mentioned directly or indirectly, and we challenge the counsel for the government to find any statute of the United State which denounces or describes desertion per se as imposing a taint or disability to receive bounty.
    4. It is thought that sufficient has been advanced to overcome any pretence that taint or disability grows out of a desertion per se, and we propose to examine whether any disqualification to receive honorable discharge or bounty grows out of desertion on the ground that it is a violation of contract by the soldier. When a soldier enlists he is subject to the rules, regulations, and laws enacted for the government of the Army of the United States. It is provided by the rules and regulations that deserters shall make good time lost by desertion, unless discharged by competent authority. This is a part of the contract. It is not any part of punishment.
    Kelly was not subjected to any trial by court-martial, so all the conditions of his contract were satisfied by the applications of the regulations of the service as set forth in the paragraphs before mentioned.
    He served the full number of months and days covered by his enlistment, and has fulfilled all obligation and suffered all disability and restraints imposed by law because of his desertion, and has been honorably discharged at the expiration of his legal term of service.
    
      The Assistant Attorney General for the defendants:
    This is the claim of a late private soldier in the regular army of the United States for bounty offered under the order of tbe War Department of February 6,1864, and not fully paid. The claimant enlisted February 12,1864, to serve three years; was assigned to Company D, United States Infantry; deserted October 3,1865; was restored to duty without trial, tinder condition that he make good the time lost by desertion; and was discharged April 20, 1867, by reason of expiration of term of service.
    The Adjutant General, who returns these facts, further certifies that his discharge “indicates that, except his desertion, his service was honorable.”
    Such a document cannot be deemed an “honorable discharge,” entitling the soldier to receive his bounty.
    A very vigorous statement of the points of defence against claims like this is to be found in the letter of Second Comptroller Brodhead.
    In this letter, the officer of the Treasury, whose duty in this matter is most nearly judicial, clearly sets forth the grounds upon which the payment now claimed has been withheld by the government.
   Peck, J.,

delivered the opinion of the court:

Thomas W. Kelly, of Detroit, in the State of Michigan, claims by his petition the sum of one hundred and seventy-five dollars, the balance unpaid of the sum of four hundred dollars, which he alleges is due to him for bounty promised, for his enlistment in the service of the United States as a soldier. The petition recites that he enlisted on the 12th day of February, A. D. 1864, in Company D of the Nineteenth Begiment of United States Infantry, to serve for three years. That he served faithfully as a private in said company until the 3d day of October, A. D. 1865, when he deserted, and was absent from duty about six weeks, at the end of which time he voluntarily reported himself as a deserter, whereupon he was returned to his regiment, and was assigned to duty therein without trial for the offence. From that time forward until the 20th April, A. D. 1867, he continued to serve faithfully, and fully made up the time he had been absent as a deserter. On the last above-named day, petitioner alleges he was honorably discharged, his term of enlistment having expired. That the sum now claimed by him as a part of bis bounty was withheld, and has not been paid, because of his desertion.

We find the allegations in the petition to be true, as shown, by the record.

Claimant enlisted on the 12th February, A. D. 1864, and served until the 3d day of October, A. D. I860, one year, seven months, and twenty-one days: at the end of which time he deserted and was absent thirty-ni ne days. After that absence, having voluntarily reported himself as a deserter, he was, by command of Major G-eneral J. J. ltóynolds, upon the recommendation of his regimental commander, “restored to duty without trial, with the condition that he made good the time lost by desertion.” The condition Avas performed by the claimant. He afterwards continued in service until he was discharged by the expiration of his stipulated service, at Fort Gibson, in the military department of Arkansas, on the 20th April, 1867. His discharge is in the usual form of those given to honorably-discharged soldiers, and would escape remark, but lor the voluntary observation of the Adjutant General, in reply to a rule for information from this court, in connection with the discharge, which is as follows: “Except his desertion, his service was honorable.”

We think the law as applied to these facts authorizes us to render a judgment in favor of the claimant for the unpaid bounty, amounting to the sum of two hundred and twenty-five dollars.

There appears to have been some differences of opinion among the officers of the War and accounting Departments, as to the right of the claimant to receive the bounty accrued to him after his desertion and return to service.

We think the reasoning of the Judge Advocate General, which supports the demand, the most equitable and just.

The Assistant Attorney General relies mainly for his defence against the claim upou an argument of the Second Comptroller, which is as follows:

“We have held that, by the regulations of the army, having the force of law, a deserter ipso facto forfeits all pay, &c., due the deserter, and vests the money in the United States, and that even a pardon cannot give him what he has by his own act virtually placed in the Treasury; that he can claim nothing under the contract of enlistment he violated; that, under the act of July 22,1861, a soldier could have a title to the bounty only on honorable discharge after two years’ service, or for wounds received, &c.; that the document itself not saying whether the discharge was honorable or dishonorable, the fact must be determined by proof; that, when it fully appeared by the papers in the case that, during the time for which he was enlisted, he had been guilty of the most dishonorable crime a soldier can commit, viz, desertion, it was not an honorable discharge, and bounty could not be paid; that the bounties paid by instalments are subject to the same general conditions as bounty due under the law of 1861, and instalments remaining unpaid at desertion áre forfeited, and cannot be earned by subsequent return and service; and that, even if there be doubt upon the subject, the benefit of the doubt ought not to be given to the man who deserted his flag and the cause of his country in her hour of need.”

This is a jjatriotic as well as an eloquent view of the matter.

The soldier rests upon his discharge to sustain his reputation in after life, as well as to show his conduct in the past. Can the Comptroller or any other officer controvert its truth by assuming that an offence for which the soldier has atoned, and which has been commuted by those having authority to make the commutation upon conditions complied with, is still flagrant and existing, for which a second forfeiture or punishment is to be exacted or inflicted? We do not feel inclined to excuse or extenuate the desertion, but we think that the contract for continuous service between claimant and defendants, which was broken by the claimant, was revived upon terms and conditions proposed to the claimant, accepted by him, and faithfully observed. This being the case, the claimant has now a right to insist that no other or different consequences or conditions shall be imposed for his misconduct, which might have been, but were not exacted, after he had surrendered himself to receive whatever forfeitures or punishment the United States might choose to demand.

Good faith requires that the soldier, after he has been led to believe by his superior officers, who it is conceded were authorized to excuse his miscouduct, that his offence was condoned, shall be exempt from other penalties, forfeitures, or punishment for the same offence.

The consequences that might follow a deserter as denounced against him by law, are and should be serious. They extend to a loss of citizenship, beside the hazard of incurring the most dreaded of all punishments, the loss of life. It would not be more unreasonable in a legal point of view to visit upon him any of these more serious punishments after his offence had been pardoned, than to deny him Ms bounty.

It is to be observed that this claimant has not been tried by court-martial or otherwise; and that such evidence of his dereliction as is produced is coupled with its condonation, and equally establishes both facts.

Had this claimant died from wounds received in the service after his desertion and restoration, it is probable the law would not permit the withholding’ from his wife and children any bounty that might not have been paid to him.

The Assistant Attorney General, in an additional brief, puts forward the following statements as a completen uthority for denying this claimant his bounty:

[“Memorandum.No. 50.]

“Paymaster General’s Oeeice,.

(l Washington, D. 0,, June 16, 1865.

“The'following decision of the Comptroller of the Treasury is published for the information of all officers of this Department:

IU Treasury Department,

Second Comptroller’s Office, June 16,1865.

Sir: In an interview with the Secretary of War this morning, lie concurred, in the decision heretofore given by me respecting payments of bounty to soldiers who have been deserters during their respective terms of enlistment.

“ ‘ You are therefore respectfully requested to notify paymasters that soldiers who have violated their contracts with the Government, by committing the crime of desertion during the time for which they had enlisted or were drafted, have no legal claim, either to the pay which had accrued at the time of desertion or to any payment of bounty; and that any payments hereafter made in conflict with this decision will be disallowed at the treasury.

“‘Very respectfully, your obedient servant,

iU3. M. BRODHEAD, 2d Comptroller.

u ‘ Gen. B. W. Brice, Paymaster Cen’V

u B. W. BRICE, Paymaster Cen’l.”

“In this matter, under tbe legislation of January 13tb, and March 3d, 1864, this order of the War Department has the force of positive enactment.’’

There are several objections to the argument based upon this circular. There is no order from the War Department produced, but only a statement by the Comptroller that the Secretary of War concurred in some decision about bounties, which the Comptroller before then had made. This belief of the Comptroller is expressed to a military officer, as a warning and caution to the latter and his subordinates to avoid difficulty in the auditing of their accounts by the same Comptroller, and amounts to nothing more. It does not furnish legal evidence of the facts it states, and can only be regarded as the expressed opinions of the Comptroller, who is not tíre head of a department, nor connected in any way with the Department of War, for the head of which he volunteers to stand sponsor. The Comptroller is not authorized to promulgate by authority the opinions of the Secretary of War; even if he were, in order to make those opinions authoritative or obligatory, they must emanate directly from that functionary and under his official sanction. Without these characteristics, his opinions, if ever so correctly stated, have no probative force. They might be accepted as the opinions of an intelligent and distinguished public gentleman, but not as clothed with official authority.

Without extending this discussion, it is enough now to say that as this-judgment will affect a class of cases, or furnish a precedent for the future action of an executive department of the government in the adjustment of such class of cases, and this claimant could not appeal if the judgment were against him, we shall give a judgment for him, to the end that the opinion of the Supreme Court may definitively settle whatever doubts may surround the inquiry, and terminate the difficulties.

Judgment is to be entered for the claimant for the unpaid balance due to him as bounty, amounting to the sum of $225.  