
    LANDER’S CASE. John Lander v. The United States.
    
      On the Proofs.
    
    
      A soldier in the volunteer service deserts in November, 1864. Being arrested, he ie restored to duty with the loss of all pay and alloioances. In August, 1865, he is honorably discharged. Certain pay and bounty are withheld. He brings his action to recover.
    
    I. The honorable discharge of a deserter is a formal final judgment passed by the Government upon his entire military record, and a declaration that he left the service in a status of honoi. This applies to a soldier in the volunteer service equally with a soldier in the Regular Army.
    II. The Joint Resolution 1st March, 1870, (16 Stat. L., p. 370,) which enacts- “ that moneys withheld because of the desertion of any person from the volunteer forces” shall not be paid to him “ except the record shall have been canceled on the sole ground that such record had been made erroneously and contrary to the fuels” is a highly penal statute, and cannothave a retroactive effect beyond that which its words absolutely require. Therefore it does not apply to a soldier honorably discharged three years before the enactment, and he cannot be affected by a law not existing when his contract ceased and the rights of the parties were fixed. ■ ■
    
      The Reporters' statement of the case:
    The court found the following facts:
    The petitioner enlisted in the army for three years, and 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; be 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, 1805.
    
      Mr. Thomas J. Durant for the claimant.
    JZr. Alexander Johnston (with whom was the Assistant Attorney-General) for the defendants.
   Loring, J.,

delivered the opinion of the court:

In the case of the United States v. Kelly, the Supreme Court decided that “the honorable discharge of a deserter was a formal final judgment passed by the. Government upon the entire military record of the soldier, and an authoritative declaration by it that he had left the service in a status of honor,” &c., and amounted of itself to the removal of any charge or impediment in the way of receiving bounty. (8 C. Cls. R.)

This in effect holds that the offense of desertion is purged by an honorable discharge, and all its consequences annulled. This case is like Kelly’s Case, except that the soldier there belonged to the Begular Army, and the petitioner belonged to the volunteers. And the Joint Resolution March 1, 1870, (16 Stat. L., p. 370,) enacts, “Tkatthe moneys withheld because of the desertion of any person from the volunteer forces of the United States, who is borne on the rolls as a deserter, shall not be paid to him except the record shall have been canceled on the sole ground that such record had been made erroneously and contrary to the facts, but such money shall be and remain the property of the National Asylum for Disabled Volunteer Soldiers for the support of its beneficiaries.”

The defendants claim that the petitioner is within this resolution, and his case is within its words. But the resolution is highly penal, and cannot have a retroactive effect beyond that which its words absolutely require. Now, the petitioner had been honorably discharged three years before the passage of the resolution, and he cannot be affected by a law not existing then, when his contract ceased and the rights of the parties to it "were fixed.

We hold, therefore, he is entitled to the balance of his pay and bounty, amounting to the sum of $508.20.

Nott, J., did not sit in this case, and took no part in the decision.  