
    GENERAL HUNT’S CASE. Henry J. Hunt v. The United States.
    
      On Demurrer.
    
    
      Congress enaot that “ after the 1st day of March, 1865, and during the continuance of the present rebellion, the commutation price of officers’ rations shall be fifty cents per ration: provided that said increase shall not apiily to the commutation price of the rations of any officer above the rank of brevet brigadier general.” (Act 3d March, 1865, 13 Stat. L., p. 495, § 3.) An officer of the rank of brigadier general of volunteers is refused the increase given by ih e act on the gro and th al he is above the rank of “ brevet brigadier general.” Me brings his action for the increase.
    
    There is no distinct rank of “brevet brigadier general” in the army. Where a statute allows an increase in the commutation price of rations to officers not “ above the rank of brevet brigadier general,” it is to be construed as meaning- officers not above the rank of brigadier general. Tho word “ brevet” is intended to apply only to those officers by brevet who have been assigned to duly by their brevet rank, and have received the pay and emoluments thereof. Hence a brigadier general is not above the rank of “ brevet brigadier general,” within tho true intent of the statute, and is entitled to receive the increased rate of commutation by it allowed. {Act 3d March, 1865, 13 Stat. L., p. 495, § 3.)
    
      Mr. J. Shrocler (with, whom was tbe Assistant Attorney General) in support of tbe demurrer:
    I. Tbe first claim in tbe petition in tbis case is, that tbe petitioner, a brigadier general, is entitled to tbe benefit of section 3 of tbe Act 3d March, 18C5. (13 Stat. L., 497.) Tbe petitioner, in support of bis cause, must rely apon tbe proposition that in law a brevet brigadier general is of equal rank to a brigadier general. Tbe defendants deny tbis proposition to be law. '
    Tbe military officers bere mentioned, like all other officers of tbe army of tbe United States, are creatures of tbe laws of Congress. To discover tbe nature and attributes of these offices, tbe laws which called them into existence should be consulted. Tbe meaning of these statutes must be derived from tbe body of tbe acts themselves. (1 Kent. Com., 462; 7 Crunch, 60; 7 Hill, (N. Y.,) 382.)
    It is urged by tbe defendants that neither tbe laws of Congress nor tbe Army Regulations, (sanctioned and recognized as law by Congress, Act July .28, 1866, § 38, 14 Stat. L., 338) warrant tbe claimant’s proposition. It is submitted that of tbe laws relating to brevet officers none but tbe Army Regulations and Act March 30, 1814, section 12, (3 Stat. L., 114,) affect these officers in tbe bearing of rank.- Tbe Acts of July 6, 1812, April 16, 1818, August .4,1854, March 3, 1863, March 3,1865, treat only of tbe qualified authority of tbe President to confer a brevet commission, of tbe grounds of promotion of an officer to a brevet rank, and of tbe pay or emoluments of brevet officers.
    Tbe Act June 18, 1846, section 9, deciding neither directly nor indirectly when an equality of rank exists, merely removes the confusion and difficulty arising from an officer’s bolding at tbe same time two commissions of tbe same grade.
    
    II. For a proper solution of tbe question involved in this part of tbe case, tbe court is referred to paragraphs'4 and 5 of tbe Revised Army Regulations of 1863:
    a4. Rank of officers and non-commissioned officers: 1st, lieutenant general; 2d, major general; 3d, brigadier general; 4tb, colonel, &c.; and in each grade by date of commission or appointment.
    “5. When commissions are of tbe,same date tbe rank is to be decided between officers of tbe same regiment or corps by tbe order of appointment; between officers of different regiments or corps: 1st, by rank in actual service when appointed; 2d, by former rank and service in tbe army or marine corps; 3d, by lottery among such as have not-been in tbe military service of tbe United States. In case of equality of rank, by virtue of a brevet commission, reference is bad to commissions not brevet.”
    Tbe synonymy of tbe words grade and ranh occurring in these paragraphs is necessarily assumed by tbe petitioner. But it is clear, from an examination of tbe legislation of Congress on this subject, that these words bear distinct and different legal meanings. This is tbe more manifest from such a use being tbe only one consistent with a rational employment of these words in the Acts March 30,1814, section 12, (3 Stat. L., 114,) and March 3, 1847, section 6, (9 Stat. L., 184.) An intelligent reading of paragraph. 4 of the Army Kegulations precludes the possibility of their synonymy.
    It is maintained that in law, grade, as here employed, is a step in the series of offices in the army. It relates to a class or number of persons who are in the same situation in and with respect to the series.
    Paragraphs 4 and' 5 of the Regulations contain the whole law on this subject. These paragraphs, emphatically making a distinction between grade and rank, established grade as the first criterion of rank. If officers be of the same grade, then the criterion is date of commission. If the dates of commissions be the same, then, as between officers of the same regiment or corps, the criterion established is the time of appointment.. Bat as between officers of different regiments or corps, the criterion of rank is the respective ranks the contending officers took in the regiment or corps in which they were respectively first mustered. Should the last rule prove inconclusive, then the Regulations refer to the former rank and service in the army or marine corps.
    These criterions here recited, namely, grade, date of commission, or time of appointment to a regiment or corps, are certainly inapplicable to officers never before in the military service. Their rank is therefore decided by lottery. These rules, clearly intended to govern the question of rank of officers who are appointed to a regiment or corps, cannot possibly apply to brevet officers, Avhose services begin by appointment to commands composed of different corps or detachments, (see paragraphs 0 and 10 of the Army Regulations.) In respect to these, the Regulations provide that, u in case of equality of rank by virtue of a brevet commission, reference is had to commissions not brevet.®
    Now, as paragraphs 4 and 5 of the Regulations purposely and exclusively refer directly to the rank of officers, the question in discussion must of necessity'be controlled by the only part of these paragraphs which is applicable to brevet commissions. Consequently, the comparison between ordinary and brevet commissions, equal in every respect save that of the quality of the commissions, can be made only by applying the last-quoted rule.
    
      In this aspect tbe brevet brigadier general’s commission inevitably confers tbe rank of an inferior grade, while tbe brigadier general’s commission, by its own inherent strength and character, confers on the brigadier, general a rank superior to the brevet brigadier general’s.
    It is therefore respectfully urged by the defendants that section 3 of Act March 3, 1865, does not give a cause of action to the claimant, an officer “ above the rank of brevet brigadier general.”
    The second part of the petition claims that the petitioner, asbrevet major of artillery, is entitled to the benefit of the Act March 3, 1847, by which “ the officers and men of the light artillery, when serving as such, and mounted, shall receive the same pay and allowances as provided by law for the dragoons.”
    If a brevet major of artillery is an officer of the light artillery, he is entitled to the pay of like officer of the dragoons. The defendants, however, deny that there exists by law any officer of the light artillery known and recognized as major.
    B j Act March 2,1821, section 1, (3 Stat L., 615,) the military peace establishment of the United States was composed of four regiments of artillery, and so forth.' By section 2 of the same act “each regiment of artillery shall” consist of one colonel, * * * one major, * # * and nine companies, one of which shall be designated and equipped as light artillery j. and that each company shall consist of one captain” and other officers of inferior grade.
    By Act March 3, 1847, section 18, (9' Stat. L., 186,) the President was empowered, “when he shall deem it necessary, to designate four other companies, one in each regiment, to be organized and equipped as light artillery.”
    By section 2 of Act July 29,1861, (12 Stat. L., 280,) there was authorized to a regiment of artillery “.one colonel, * * * one major, to every four batteries,” and other inferior officers.
    On section 19 of Act March 3, 1847, (9 Stat. -L., 186,) the claimant bases his right of action.
    From the preceding summary of the legislation on this subject, the defendants maintain that the officers and men of the light artillery are officers and men of single companies of an artillery regiment, and that no officer of such company is recognized by law to be of higher rank than that of captain. The petitioner’s claim, as major of artillery, of the benefits of section 19, of March 3,1847, is therefore without foundation in law.
    
      Mr. T. J. D. Fuller opposed:
    The questions involved in this petition are purely legal ones, arising upon the proper construction to be given to the proviso attached to the third section of the Act March 3, 1865, (13 Stat. L., p. 495, § 3.)
    The language of the proviso is,u That said increase shall not apply to the commutation price of Hie rations of any officer above the ranlc of brevet brigadier general, or to -any officer entitled to commutation of fuel and guartersP
    
    The claimant was not entitled to commutation of fuel and quarters. He was a brigadier general in the volunteer service. The Pay Department of the army construe the proviso to give the increase to brevet brigadiers, but not to brigadiers. The claimant’s construction is, that the proviso should be read as if the word “ brevet” was omitted altogether; that the grade of ranlc determines to whom it shall apply; that there is no difference in the ranlc of a brevet brigadier and brigadier; that whatever distinction may exist in other respects is quite immaterial ; if they are equal in ranlc, that suffices for his purpose.
    The Pay Department hold the ranlc of a brevet brigadier to be below or inferior to that of a brigadier.
    In this construction the claimant alleges error.
    The claimant says in ramie he is not above a brevet brigadier, because a brevet brigadier of older commission may command him, and he is bound to obey his orders, which, in military parlance, can never happen if the r&nlc is above him, or he is of lower ranlc.
    
    By reading the third and fourth sections in connection, it is quite manifest that the legislature intended to increase the pay of officers therein named in two ways: First, by the increased value of the ration ^ and, secondly, by giving three months’ extra pay on mustering out of service officers of a certain rank.
    That this increase is not intended to apply to all officers of the same rank is apparent. Brigadiers are included in the first, but excluded from the second mode of increase.
    The intention of inclusion in the third section and exclusion in the fourth section is made very manifest from the language used j in the third section it shall not apply to officers 11 above” the rank of-, and in the fourth it shall apply to all officers “ below” the rank of-. This language is the language of inclusion and exclusion of the same rank 1
    The statute must be construed by the well-known rules of judicial interpretation, one of which is, “ That a proviso in a statute is strictly construed, and tcCkes no case out of the enacting clause which is not fairly tvithin the terms of the proviso.” (United Slates v. JDiclcson, 15 Peters’ Bep., p. 141.)
    Another rule is, “ That doubtful words, if not of a scientific or technical character, are to be interpreted according to their popular meaning •, but words of a scientific or technical character are to be construed in accordance' with their known meaning in the science or art to which they appertain.” (6 McLean’s Bep., p. 152.)
    ■ A further rule, and one especially applicable to the ease under consideration, is, “ Where the words of a statute. fixing the compensation of a public officer are loose and obscure, and admit of two interpretations, they should: be construed in favor of the officer.” (United States v. Morser 3 Story’s Bep., p. 87.)
    Such are the judicial rules of construction.
    But departmental rules of construction are directly the reverse.
    The idea suggested, that Congress intended to give the increased price of twenty cents upon each ration to a brevet brigadier and not to a full brigadier, cannot be maintained, for these reasons:
    1. If a brevet brigadier at the time was in the receipt of a brigadier’s pay and emoluments, there is no apparent justice or reason in discriminating between the two ranks.
    2. If a brevet brigadier was not in the receipt of a brigadier’s pay and emoluments, the construction contended for does not accomplish the object imputed to the legislature, and the act becomes, as to brevet brigadiers, a mere nullity.
    And the nullity arises in this way: The act does not increase the number of the rations any officer shall receive. That is left precisely as it was under the old law. A colonel, and brigadier by brevet, unassigned, according to his army rank would receive only a colonel’s pay and number of rations, to wit, eight, the same as if colonel and not brigadier by brevet. The colonel’s rations he would draw, with the increased price, at all events, and no more: so that the words in the proviso, “ That this inorease shall not apply to any officer above the rank of brevet brigadier general,” practically bave tbe same effect as if the language used was, u That this increase shall not apply to any officer above the rank of colonel.”
    This is the practical operation of the statute as construed by the Pay Department; and such, it is conceded by them, is their interpretation. Now, if this construction accords with the intention of the legislature, the simple and natural inquiry arises at once, Why did not the legislature adopt this mode of expressing its intention ?
    It will not do to assert that the legislature used the words “not.above the rank of a brevet brigadier general” as synonymous with the words not above the 'rank of a colonel. It would approach much nearer to the manifest intention of the legislature to read the proviso as though the word “brevet” was not there. But this is not the rule of construction. The rule is to give effect to each word in the statute, if practicable.
    The construction contended for by claimant does conform to this rule.
    The law makes the officers of brevet brigadier and brigadier to be of the same rank.
    
    Nowr, it is denied that there is or can be by construction any difference in the grade of rank of the two officers. There is no intermediate grade of rank known to the law between a colonel and a brigadier, or a brigadier and major general. (See Article II of Army Begulations, §§ C, 10, 11.)
    I now take up the other branch of the claim.
    The decision o'f the Pay Department in this instance is but a further illustration of that rule of practice before cited. Where a question of pay can be made doubtful, it adopts the construction that will give the officer the least pay; in this instance, as in the former one, reversing the rule adopted by Judge Story in 3d of Story’s Beports.
    General Hunt at this time was a captain of artillery, and a major by brevet in the army of the United States.
    By virtue of the provisions of the 19th section of the Act March 3, 1847, it is enacted, “ That the officers and men of the light artillery, when serving as suchf that is, mounted, “ shall receive the same pay and allowances as the dragoons are entitled to'receive.” The Pay Department holds that, as captain of light artillery and mounted, lie may receive the pay of a captain of dragoons; but when be commands, as major of dragoons, two companies of mounted artillery, be cannot receive tbe pay of a major of dragoons, but must fall below tbe ' grade of bis rank, in tbe pay be receives, to. that of major of infantry.
    A captain of dragoons, and major by brevet in tbe army, when entitled to brevet pay, always draws tbe pay of a major of dragoons. This is tbe law and settled practice of tbe Pay Department. Now, tbe officers of light artillery, (says tbe law,) when mounted, shall receive tbe same pay, &c., as provided by law for dragoons. That is language clear and unambiguous! But because a u major of artillery,” not mounted, gets artillery pay and not dragoon pay, the department bolds a brevet major in tbe army shall not receive dragoon pay. The law says otherwise distinctly.
    Tbe reason of tbe thing is obvious. A captain of light artillery, when serving as mounted, incurs similar expense, wear, and tear, as a dragoon captain, who is supposed always to serve as a mounted officer. Now, as captain of one company, be may receive tbe pay of a captain of dragoons. About that there is no question; but tbe moment bis command increases to two companies, then bis pay must fall to that of a major of infantry, tbe lowest grade of pay known to the, service. This reduction is in violation of the analogies of the law and service. Tbe ' law is, “ Officers and men of the light .artillery, when serving as such,” that is, mounted, “ shall receive the pay of dragoons.” If tbe law was silent upon the subject of brevet pay, and it be claimed, tbe rule might be adopted, as there are different rates of pay in different corps, the lowest grade of brevet pay known to tbe law shall be given. Now, here tbe rule is given. Dragoon pay is established by law, and- it is fixed and certain. Then comes tbe law fixing artillery pay-5 that is certain. Now, tbe law says artillery, when mounted and serving as light artillery, “ officers and men,” shall draw dragoon pay. Passing from one class into the other, a captain of artillery, mounted, draws tbe pay of a dragoon eaptain.; Tbe captain, being a major by brevet in the army, commands two companies of mounted artillery, a majors command. Why not comply with the statute, and give him a dragoon major’s pay ?
    
      
       This case was decided at the preceding term, but too late for publication in tho fifth volume.
    
   Peck, J.,

delivered tbe opinion of the court:

Henry J. Hunt, the petitioner, describes himself as a brevet major general and colonel commanding the Fifth Begiment of United States Artillery, and alleges that he was an officer of the volunteer army of the United States from the 1st of March, A. 3>. 1865, to the 22d day of November following, and not above the rank of a brevet brigadier general, and therefore he is entitled to receive commutation pay of fifteen subsistence rations per day for a period of two hundred and sixty-seven days.

That he has been paid commutation at the rate of thirty cents per ration, whereas he should have been paid at the rate of fifty cents per ration, making a difference between actual payment made and the payment that he claims he is entitled by law to receive, of twenty cents per ration on fifteen rations per day, for two hundred and sixty-seven days, making $801 in the aggregate.

That the petitioner was serving in the field during said period of two hundred and sixty-seven days, and was not therefore by law entitled to commutation for fuel and quarters, and was not paid for such.

That the petitioner applied to the Paymaster General for the sum he claims to be due, and it was denied him; that he appealed to the Secretary of War, who rejected his claim, by an erroneous construction of said statute,, as claimed by the petitioner, and, therefore, he petitions this court to award him judgment against the United States for the sum of $801, the sum of short payment under said law.

The petitioner admits he was a brigadier general of volunteers from the 1st day of March, A. D. 1865, to the 22d day of November, 1865, but he denies, as a matter of law and usage, that a brevet brigadier general by ranlc is a grade below brigadier general. He claims that in “rank” the two officers are equal, and it has ever been so-held in military law and usage from the earliest days, both in the British and American armies, upon all questions of.iLranlc” as distinct from the question of pay or command.

And the petitioner further shows that, by virtue of the 19th section of the Act 3d March,11847, it is enacted, “ that the officers and men of the light artillery, when serving as such, and mounted, shall receive the same pay and allowances-as provided hy laxo for the dragoonsP

That, for the period of time hereafter set forth, the petitioner was a captain, and in command of a light artillery company, and a major in the army by brevet rank, and as such major commanded two companies of light artillery, and was paid for such service the pay and allowance of a major of artillery, not mounted, but lie claims he was entitled to be paid the pay and allowances of a major of dragoons or cavalry, being a difference of $10 per month for himself, $2 for his servant, for the period of eighteen months, to wit, in September, 1853, and from April, 1855, to November, 1850, amounting to the sum of $216. He therefore prays this court to render judgment in his favor against the United States for this sum, the difference between the pay.received and pay due him, by a proper construction of the law, being an addition of $12 per month for the period of eighteen months, making the sum of $216-.

To this petition the defendants filed a general demurrer, which admits the truth of all that is well pleaded in the petition. It is proper to state, however, that it was stipulated by both parties that the item of claim set forth in the petition as arising out of the services of the claimant in September, 1853, and from April, 1855, to November, 1856, amounting to the sum of $216, was to be regarded and considered by the court as if a plea of the statute of limitations had been interposed and issue joined thereon.

The court sustains the plea, and holds that the second item of claim is barred by the statute reorganizing this court. (12 Stat. L., p. 765, § 10.)

The claimant insists that the rank of a brigadier general by brevet is neither above nor below the rank of a brigadier-general of volunteers, and that the rank of each is equal before the law.

By Act 3d March, 1863, (12 Stat. L., p. 75S,) the President was authorized, by and with the advice and consent of the Senate, to confer brevet rank upon commissioned-officers of the volunteer and other forces, but upon the express condition that the rank so conferred should not carry with it any increase of pay or emoluments.

So far the question of pay, as connected with brevet, is free from doubt.

Subsequently tbe policy of Congress was changed, and on tlie 3d of March, 1805, by two different statutes, approved on that day, (13 Stat. L., pp. 487 and 495,) it was enacted that officers by brevet should, as such, receive pay. By the statute to be found on page 487, section 9, it was enacted “ that officers by brevet in the regular army should receive the same pay and allowance as brevet officers of the same grade or rank in the volunteer service, and no more,” without question as to grade or rank, however high, provided there should be a brevet officer of corresponding grade or rank holding a commission by brevet in the volunteer service. This would indicate the intention of Congress not to discriminate between the regular and volunteer service unfavorably to the former, by reason of its probable permanency, placing regular and volunteer officers by brevet upon an equality as to pay. The increased compensation allowed by the statute on page 495, section 3, was not to extend beyond the continuance of the war; thus manifesting that there was no purpose of favoring the volunteer officer by giving him support until he should resume business as a civilian. This section is a part of an act making appropriations for the support of the army for the year ending 30th June, 1860, having reference exclusively to pay, and should be favorably considered, increase of pay being its purpose; and it provides that from and after the 1st day of March, 18G5, and during the continuance of the present rebellion, the commutation price of officers’ subsistence should be fifty cents per ration ; provided that said increase should not apply to the commutation price of the rations of any officer above the rank of brevst brigadier general, or of any officer entitled to commutation for fuel or quarters.” The fourth section of the same act directs that volunteer officers then in commission, below the rank of brigadier general, who continue in service to the close of the war, should, on being mustered out, receive three months’ extra pay.

The words “ above” in the third section, and “below” in the fourth section, by the construction insisted upon by the defendants, would exclude a brigadier general from any benefit of the laws, and would indicate a marked intention on the part of Congress to disregard the interests of brigadiers of full rank, and to favor thovse who hold, as the defendants insist, a nominal if not uncertain position in the army, the principal purpose of wbicli they would have1 us believe is to recognize a class of officers who have or have not rank, as that fact may serve to prevail against the interests or pay of the brigadier general not by brevet.

The Supreme Court (1 Howard, p. 118) says that brevet rank is promotion; if it is, then it should carry with it whatever dignity or profit was intended should attach to its bestowal, and should not have its consequence belittled nor its purpose defeated from economical motives only.

The words “ above the rank of brevet brigadier general,” when considered with the language used in the ninth section of the act on page 487, (both acts being in pari materia,) which declares that officers by brevet in the regular army shall receive the same pay and allowance as brevet officers of the same grade or rank in the volunteer service, would seem to imply that either grade or ranlc would be sufficient to carry the benefits of the law to the brevet rank; so that these words, if not synonymous or equivalent, would signify different conditions; those conditions need not concur in the same officer.

Suppose a colouel of volunteers, promoted to the rank of major general by brevet, which is a rank above that of “brevet brigadier general,” and assigned to duty according to his brevet rank, should be denied the increased pay allowed by the third section, for the reason that he has been paid for his higher rank as major general, would not this furnish a reasonable construction of that section and give effect to every word of it? If we should adopt the construction contended for by the defendants ; if such brevetted colonel should not be assigned to duty as major general and should seek his increased pay as a colonel, he might be denied the benefit of the law, merely because he held a rank above that of brevet brigadier general. This would look like substituting subtle and ingenious arguments asan equivalent for the just compensation offered by Congress.

Brigadier generals are all, apparently, of the same rank, grade, or class, and it may well be inquired, what rank does an officer in the military service, called a brigadier general, take? Especially as opposed to a brigadier general by brevet, is he abovrn or below, or both above and below, an officer holding that rank? What rank is there known to the law or Army Regulations between that of colonel and major general, other than that of brigadier general ? We do not know of any. What rank does the commission issued to an officer creating him a brigadier general, whether by brevet or otherwise, confer, if not that rank? The defendants, by some mystic knowledge we do not possess, find a rank called a brigadier general’s rank, which may be either above or below that rank, as circumstances may require. This may be a convenient distinction, but it is not very obvious.

The law may, and sometimes does, make distinctions as to duty or pay between brigadiers by brevet and other brigadiers, but so far as we are advised does not make any as to rank, where- rank alone is made the test. The commission is the “guinea’s stamp,” and that fixes the rank, and entitles the holder of it, the law not forbidding, to all its honors and proper perquisites.

If an officer in the regular army, permanently provided for by his commission in that arm of the service, may receive for his brevet any compensation allowed to a volunteer officer who is but temporarily in the service, it is- difficult to understand why a brigadier general of volunteers, not so by brevet, who is in the same category as to length-of service and quite as meritorious as the brevetted officer, should not be equally favored. We do not know any policy or reason for denying such officer, thereby apparently placing him without the pale of favor or reward.

The word “rank,” in the statute under consideration, is the controlling word of the section. Whether it was used to indicate that a brigadier general of volunteers, not by brevet, was above the rank of brigadier general by brevet, or whether it was designed to exclude major generals by brevet, may admit of doubt. The defendants strenuously insist that by a proper interpretation of the section the brigadier of volunteers not by brevet cannot receive the increased compensation, although such-officer was not entitled to commutation for fuel'or quarters.

We are not prepared to accept the. interpretation of the defendants as the correct one. The defendants, if we are in error, can have that error corrected by an appeal, which the law denies to the claimant. Our judgment, therefore, will not defeat justice to the defendants, but might, if given against him, irretrievably injure the claimant.

How many similar claims there may be we are not informed. If there are others, the Supreme Court will establish the true construction of the statute. After that, there will be nothing left to cavil about.

We direct judgment to be entered for the claimant for the sum of $798.

LoeiNG, J.,

dissenting:

I think the purpose of the third section of the Act 3d March, 1805, chap. 81, was to increase the commutation price of rations for all officers of the army whosejpay and emoluments were not above a colonel’s.

By the acts of 1803, chap. S3, and 1865, chap. 79, the former law was changed, and it was enacted that brevet rank should not entitle officers to additional pay and emoluments. Under these acts, and from their date, brevet brigadier generals, though serving as generals, had but the pay and emoluments of their lineal rank, which could not be above a colonel’s; and therefore the third section of the act of 1865, chap. 81, expressly included them, and thus impliedly excluded brigadier generals who had the pay and emoluments of generals.

The fourth section of the Act 3cl March, 1865, chap. 81, relates to the mustering out of volunteers at the close of the war; then regimental officers, generals by brevet, would be (save in exceptional cases) mustered out with their regiments, and therefore in their rank in them, and so would receive the three months’ pay provided for by the section for regimental officers. Both sections, therefore, draw the line of their bounties so as to include colonels, with or without brevets of brigadier generals.

The argument for the claimant was,rested by his counsel on the word “rank” in the third section; and he contended that a brigadier general was not “ above the rank of a brevet brigadier general.” This is true, as the word 11 rank7' is used in the •Articles of War, where its use gives it a technical meaning, signifying the relation of one grade of officers, or of one officer, to another. But it cannot be so construed in the third section, because brevet brigadier generals have no rank peculiar to them, and distinguishing them from brigadier generals. And there is no such technical rank as that of brevet brigadier general in our army. Yet the statute applies the word “rank7’ to brevet brigadier generals, and we must apply it to them in some sense of the word which- will make the statute application of it to them efficient. Now, the dictionary defines the word “rank” as “a class or order,” and that is its popular or common meaning. And brevet brigadier generals form a class of officers by themselves, and distinct from brigadier generals, in title and substance. And I think the word “ramie” is to be construed as “class,” so as to give effect to the word brevet, which the statute uses, and the court cannot exclude, and which would be excluded by holding a brigadier general to be within the statute provision.

Rules of construction form a system in which they qualify each other, and the rule that words must be taken in their technical meaning cannot be used to oust other words altogether from the context. And where words have both a technical and popular meaning, that is to be adopted in the construction of a will or statute which is most consonant with its purpose, as shown by other words. And here I think the specification of “brevet brigadier generals” shows the purpose of including that class of general officers and no other, and so I construe the word “ rank” as “ class.”

The difference in substance between a brigadier general and a brevet brigadier general is that the former are generals absolutely, and in all conditions and circumstances, while the latter are generals only qualifiedly and in certain conditions and circumstances. And in this way the former as a class of officers are in fact and in popular understanding superior to or “above” the latter as a class.

For these reasons I think the petitioner cannot recover on his first claim. And I-concur in the opinion of the court, that his second claim is barred by the statute of limitations. On the whole case, X think the-defendants are entitled to judgment.  