
    W. H. H. CROWELL v. THE UNITED STATES.
    [No. 14344.
    Decided January 24, 1887.]
    
      On the Proofs.
    
    An officer adjudged by a court-martial to have been absent without leave, is sentenced to a reprimand and suspension from rank and pay. Twelve years later the accounting officers charge him with the pay drawn by him for the period when he was absent without leave.
    I.The Act 3d March, 1863 (Rev. Stat., § 1265), provides that “ any officer absent without leave shall,in addition to the penalties prescribed by law or a court-martial, forfeit all pay or allowances during such absence.” If such payment be erroneously made, it may be recovered back.
    II.Lapse of time does not preclude the Government from charging a military officer with an overpayment made to him contrary to law.
    III.The Revised Statutes (§ 5598) expressly disclaim an intention to remit penalties and forfeitures previously incurred, though the statutes prescribing them were repealed by the revision.
    
      
      The Reporters’ statement of the case :
    The following are the facts of the case so far as they are material to the point decided by the court:
    Claimant was, prior to May 21, 1871, absent without leave two months and thirty days; his pay therefor amounted to $398.75, which he received at the time. For this absence claimant was tried by court-martial and sentenced in June, 1871, to. a reprimand in general orders and to be suspended from rank and pay for three months. The terms of this sentence, approved November 17,1871, have been fulfilled.
    At the close of the year 1882 the claimant was entitled to receive, on account of longevity increase for the years 1882 and prior thereto, the sum of $216.59; on other accounts, $35.28; in all, $251.87. Against this was charged $398.75, as l£ amount overpaid from February 25 to May 21,1871, being two months, and twenty-seven days, at $137.50 per month,” being the period during which he was absent without leave. . So that a balance-was found against him of $146.88.
    
      Mr. R. B. Warden for the claimant:
    1. The words of the act of March 3, 1863, providing that ££ any officer absent from duty with leave, except from sickness- or wounds, shall, during his absence receive half of the pay and allowances prescribed by law, and no more; and any officer absent without leave shall, in addition to the penalties prescribed by law or a court-martial, forfeit all pay or allowances, during such absence ” have not been carried into the Revised Statutes.
    The language of section 1265 of those statutes is as follows r ££ Officers, when absent on account of sickness or wounds, or lawfully absent from duty and waiting orders, shall receive full pay; when absent with leave for other causes, full pay during such absence, not exceeding, in the aggregate, thirty days in one year, and half pay during such absence, unless the absence exceeds thirty days in one year. When absent without leave they shall forfeit all pay during such absence, unless the absence is excused as unavoidable.
    The words in the act of March 3,1863, £‘ in addition to the-penalties prescribed by law or a court-martial,” are here omitted.
    
      2. True construction of statute law is clearly on the side of the plaintiffs claim.
    The Revised Statutes were enacted in a time of peace. The act of March 3,1863, passed in a time of war, when great severity of discipline, especially where absence was involved, seemed absolutely necessary. No severity of that description seemed to be required in 1873.
    The act of March 3, 1863, expressly gives the character of a forfeiture to the stoppage on account of absence without leave. It says the offending officer “ shall, in addition ” to the penalties prescribed by law or a court-martial, forfeit all pay or allowances during such absence.
    The Revised Statutes, in section 1265, continue the idea of a forfeiture, but make it less severe.
    If we even could treat the law of March 3, 1863, as yet in force, could the stoppage here in question be upheld 1 It is, as we have seen, a thing in the nature of a forfeiture. But, instead of having been made promptly, it is not attempted until 1883, when the facts on which the forfeiture attempts to place itself occurred in 1871. We say, it was much too late, in 1883, to make the attempted declaration of a forfeiture, or to do the act which would alone affect the forfeiture.
    It is a familiar doctrine that no forfeiture is favored in the law. The application of that doctrine to the case at bar is obvious.
    
      Mr. F. F. JDeioees (with whom was Mr. Assistant Attorney-General Howard,) for the defendants.
   Davis, J.,

delivered the opinion of the court:

Entering the volunteer service as a private early in the war, claimant, after several transfers and promotions, was in 1865 honorably mustered out of service with the rank of captain. Two years later he received a commission in the Regular Army, and is now a captain in the Sixth Regiment of Infantry.

In the summer of 1871 he was adjudged by a court-martial to have been absent without leave for nearly three months, and was sentenced to a reprimand and to suspension from rank and pay for three months. This sentence was approved and enforced, but nothing further was done until the year 1883, when the Treasury officers charged the claimant on his pay account the sum of $398.75 as an overpayment for the period of absence without leave, for which he had been sentenced some twelve years before, and which had not previously been debited against him.

The only issue is as to the legality of this charge — a charge based upon the act of March 3,1863, which provides—

“ That any officer absent from duty with leave, except from sickness or wounds, shall, during his absence, receive half the pay and allowances prescribed by law, and no more, and any officer absent without leave shall, in addition to the penalties prescribed by law or a court-martial, forfeit all pay or allowances during such absence.”

This act appears in section 1265 of the Revised Statutes, which directs that officers absent without leave, the absence not being excused as unavoidable, shall forfeit all pay during such absence.

The claimant had been absent without leave prior to May, 1871; he had been convicted of the offense by competent authority ; he had been sentenced, and had fulfilled the terms of the sentence, but he had not suffered the additional penalty, in terms prescribed by the statute then in force, of a loss of pay during the period of the wrongful absence. No doubt can be entertained that then, that is in 1871, the «barge now complained of might properly be made. Lapse of time does not • alter the situation, for no statute of limitations runs against the Government, so that any relief to which the claimant may on these facts be entitled, must be found in the statutes. Section 1265, passed after the offense, cannot, of course, impose a penalty upon the officer, but is of interest in this, that it shows a desire by the legislature to make no material departure from the policy of the act of 1863. In fact Congress, through section 5598, expressly disclaims any intention of remitting penalties and forfeitures previously incurred in saying that—

“All offenses committed and all penalties and forfeitures incurred under any statute embraced in said revision prior to said repeal may be prosecuted and punished in the same manner and with the same effect as if said repeal had not been made.”

The forfeiture, if it be technically a forfeiture, was incurred under a then existing statute; no limitation bars its enforcement, no statute has remitted it. The action of the Treasury officers was correct, and the petition is dismissed.  