
    Colonel Lewis Merrill v. The United States.
    
      On the Proofs.
    
    
      An officer in the regular army of the United States is commissioned as colonel of the 2d Missouri volunteer cavalry. He remains as such till December, 1865, 
      when he is honorably discharged the volunteer service and resumes his rank in the regular army.
    
    An officer of volunteers, who also holds a commission in the regular army, and who resumes his rank therein when discharged from the volunteer service, is not thereby debarred from the three months' pay proper under the act 3d March, 1865, which provides that “ all officers of volunteers now in commission below the rank of brigadier general, who shall continue in the military service until the close of the war shall be entitled to receive, upon being mustered out of said service, three months’ pay proper," as modified by the act 13 July, 1866, (14 Stat. L., p. 94,) which provides that the former act shall be “ so construed as to entitle to the three months’ pay proper,’’ “ all officers of volunteers below the rank of brigadier general, who were in service on the 3d of March, 1865, and whose resignations were presented and accepted, or who were mustered out at their own request, or otherwise honorably discharged from the service after the 9th day of April, 1865.”
    Messrs. Chjpman and Hosmer for claimant:
    The claimant was a colonel of volunteers. His regiment was called the 2d Missouri cavalry, otherwise “ Merrill’s horse.” He was in the service as a colonel of volunteers prior to and on the 30th day of March, 1865, and continued in such service until the 14th day of December, 1865, when he was honorably discharged.
    These facts are fully attested by the report of the Adjutant General on file in the case.
    The claim is for three months’ extra pay under the fourth section of the act of Congress, approved March 3, 1865, which reads as follows :
    “ All officers of volunteers now in commission below the rank of brigadier general, who shall continue in the military service until the close of the war, shall be entitled to receive 'upon being mustered out of- said service three months’ pay proper.” — 13 Stat. L., p. 497; see also 14 Stat. L., p. 94.
    This law was passed just as the campaign of 1865 was about to open, and its object, doubtless, was to induce competent officers,to remain in the service until the gigantic efforts about to be put forth should be crowned with success.
    Colonel Merrill with many hundred comrades so construed it, and relying upon the faith of the nation thus solemnly plighted, remained in the service till the war was ended.
    Most of the officers entitled to the benefits of this law have been paid, but Colonel Merrill’s claim was rejected, for the alleged reason that he was an officer of the regular army.
    
      The statement that Colonel Merrill was, when the war commenced, and is an officer of the regular army is not denied. But we fail to see how that fact can affect his right of recovery. The law was made for “ officers of volunteers ” at the time when the law was passed, namely, March 3, 1865. At that time Colonel Merrill was in commission as an officer of volunteers, duly mustered. His pay and emoluments were never questioned. His rank was universally conceded. He was in active military service as a volunteer officer only. He had no pay in the regular service, and no functions of an officer to discharge therein.
    To insist that the claimant was an officer in the regular service, when he had ceased to act or be paid as such,'is only equalled in absurdity by the converse proposition that he was not in the volunteer service after he had been regularly commissioned and mustered therein.
    To deny him the benefits of this law involves both these absurdities.
    Had the Congress intended to prohibit officers of the regular army who were commissioned in the volunteer service from participating in the benefits of this law, why did it not give expression to that intention 1 It would have been an easy and effectual method of disposing of all claims like this, had Congress said “ All officers of volunteers, who are not officers in the regular army, shall he entitled, &c.” But the language actually used is general, universal. There is no exception. The only conditions are, and it appears to us, the only questions pertinent to be asked, are :
    1st. Was Colonel Merrill a volunteer officer in commission, March 3, 1865?
    2d. Was his rank below that of brigadier general ?
    3d. Did he continue in the military service to the close of the war?‘
    4th. Was he honorably discharged and mustered out of said service
    As these questions are all answered affirmatively we have no duty left to perform except to submit the case for adjudication.
    The Deputy Solicitor for the defendants :
    The plaintiff in this action is an officer of the regular army, belonging to the 2d regiment United States cavalry, having the rank of captain from October, 1861. On the breaking out of the rebellion he left his regiment and sought, as a personal privilege, to be transferred to the volunteer service, with its added rank and its increased pay. More fortunate than other officers in his own regiment, or most of his associates in arms generally, he was put in the way of becoming colonel of one of the volunteer cavalry regiments just then about to be formed and equipped for service at St. Louis, Missouri, under the direction of the general commanding the department, and with the co-operation of the State executive. In legal intendment, the office of Captain Merrill, however, was never merged, nor was this officer capable of freeing himself for an instant from his obligations in the regular army. He was barely off on furlough, and his continuing absence only winked at. During this continuing interval of time he had tendered his services to the State of Missouri, and on their acceptance certain honors and emoluments would seem to have attached. Indeed, when the regulars and volunteers chanced to he acting in concert, Colonel Merrill took rank next after the officer of this like grade with himself in the regular service, and yet much to the disparagement of his immediate army equals, if he came among them otherwise than legally incognito. The status of Captain Merrill was too clearly defined to be turned to advantage under the fourth section of the act of March 3, 1865. (13 Stat. L,, p. 497.) He was not of those to whom any bonus or premium could be offered to induce him to continue in the military service until the close of the war. He was Captain Merrill, of the regular service, and of just so many grades therein, dum bene se gesserit, as promotion by seniority would allow. He could not be mustered out of service in any legal sense, so as to become entitled to any such extra three months’ pay. It would be a mere gratuity in his case, and an unauthorized illegal addition to his pay and emoluments in the regular service, into which he at once lapsed on throwing off this anomalous colonelship. No officers of the regular army have been paid what is claimed in this petition, because no such officers, by the letter and spirit of the act of March 3, 1865, could be mustered out of service.
    Of that he had never been divested, and what, to volunteers proper, with their three months’ pay proper, was actual muster out, became, in his case, a special order to lay aside an ad interim employment, with any emoluments under it, and report at once for duty where he had always belonged. This claimant had no special call to leave the regular service, and in transferring himself to the volunteers, he must abide the fixed rules of the War Department in regard to regular officers on leave taking such commands. These rules deny him what he is seeking to recover as of legal right.
   . Per Curiam :

Tbe claimant, in August, 1861, was an officer in tbe regular army of tbe United States. On tbe 23d day of that month be was commissioned as colonel of tbe 2d regiment of Missouri cavalry, known as tbe “Merrill borse,” a volunteer organization. He remained in sucb service until the 14th of December, 1S65, when be was honorably discharged tbe volunteer service, and resumed bis duty and rank in tbe regular army.

This suit is brought to recover tbe three months’ pay given to volunteer officers honorably discharged by tbe 4th section act 3d March, 1865, (13 Stat., p. 497,) which is as follows :

“ All officers of volunteers now in commission below tbe rank of brigadier general, who shall continue in tbe military service until tbe close of tbe war, shall be entitled to receive upon being mustered out of said service three months’ pay proper.”

Some doubts having arisen as to the meaning of this provision, Congress, on tbe 13th July, 1866, passed an act directing that it shall “ be so construed as to entitle to tbe three months’ pay proper provided for therein all officers of volunteers below the rank of brigadier general, who were in service on the 3d of March, 1865, and whose resignations were presented and accepted, or who were mustered out at their own request, or otherwise honorably discharged from the service after the 9th day of April, 1865.” — 14 Stat. L., p. 94.

We confess that there is great force in the objection of the learned Deputy Solicitor, that this provision was intended specially for those persons who left civil occupations to engage in the military service, and to afford them the means of living until they should be able to return to some permanent employment. There are a number of such cases. It is important that the law shall be settled. And as the United States have the right of appeal in these cases, and the claimant, by reason of the limited amount in controversy, has not, we rule the case in favor of the claimant, that it may be authoritatively decided by the Supreme Court of the United States.

Judgment for claimant for #330.'  