
    UPTON J. HAMMOND v. THE UNITED STATES.
    [Cong. No. 14247-182.
    Decided January 5, 1914.]
    
      On the Proofs.
    
    This is a claim for the payment of travel allowances from the place of discharge to the place of enrollment alleged to be due plaintiff as one of the beneficiaries under Senate bill 9501, referred to the Court May 22,1908, by resolution of the United States Senate for proceedings under the act of March 3,1887, known as the Tucker Act, and differs from the case of Sandersonv. the United States, 41C. CIs., 230, only that in the present case findings of fact are to be made by the court and certified to Congress, while in the Sanderson case judgment was sought by the plaintiff.
    I.Where at a time when an officer was discharged the Government furnished transportation to thousands of discharged soldiers over private lines and money was not furnished to discharged officers or men, the burden of proof on the question of whether transportation was or was not furnished rests upon the plaintiff.
    II.Where the War Department reports show that the names of officers or enlisted men receiving transportation when discharged would only be disclosed by the certificate famished them, and with the surrender of the certificate the transportation company would settle the account with the United States, some satisfactory evidence should be furnished to remove the presumption that the Government at the time of the discharge of officers or men from the military service had complied with the law in the matter of furnishing transportation whensoever proper.
    III.Where an officer or a soldier is discharged at his own request, and for his own pleasure and convenience, the settled practice of the War Department and the Treasury Department is to deny the payment of travel pay and allowances, which practice was approved by the Supreme Court in the case of Sweet v. The United States, 189 U. S., 471, and this Court will follow the rule so long established by not making a finding favorable to the payment of such travel pay and allowances.
    
      The Reporter's statement of the case:
    This is a claim for payment of travel allowances alleged to be due said claimant as one of the beneficiaries under Senate bill 9501, which was referred to this court May 22, 1908, by resolution of the United States Senate for proceedings" under the act of March 3, 1887, known as the Tucker Act. The second section of said bill is applicable to this case and reads as follows:
    “Sec. 2. That the Secretary of- the Treasury be, and he is hereby, authorized and directed, out of any money in the Treasury not otherwise appropriated, to pay to each of the following persons named in this section, or; if deceased, to the party entitled thereto, the sum of five hundred dollars, or so much thereof as may be necessary, being for travel allowance when honorably discharged from the military service of the United States, namely: * * * Upton J. Hammond, * *
    The claimant thereafter appeared in this court and filed his petition, in which he makes the following allegations:
    That he is a citizen of the United States resident in the county of Marion, State of Indiana, and is one of the pro-proposed beneficiaries named in said bill 9501.
    That he was, on or about February 26, 1863, in the military service of the United States, serving as second lieutenant, Company A, Fourth Indiana Cavalry Volunteers; that he then tendered his resignation through military channels, which was accepted, and he was honorably discharged from the service; that under the law then in force, sec. 15, act of Jan. 29, 1813, 2 Stats., 796, any officer discharged from the service, except by way of punishment for an offense, was allowed his travel pay and rations, commuted in the maimer and at the rate therein provided; that he- was denied a claim for travel allowances by the accounting officers of the Treasury on the authority of the case of Sweet v. United States, 189 U. S., 471; and that thereupon he applied to Congress for relief, and the claim was referred to this court, as hereinbefore recited.
    The following are the facts, of the case as found by the Court:
    I. Claimant herein, Upton J. Hammond, was enrolled in the military service of the United States at Indianapolis, Ind., for service in the Fourth Indiana Volunteer Cavalry, and was honorably discharged as second lieutenant February 26, 1863, at Murfreesboro, Tenn., on tender of his resignation for personal reasons.
    The evidence does not establish to the satisfaction of the court that transportation in kind from Murfreesboro, Term., to Indianapolis, Ind., or any part of the distance, was not furnished, nor does the evidence establish to the satisfaction of the court that travel subsistence was not likewise furnished to the claimant by the United States.
    II. The travel pay and travel subsistence of a second lieutenant of cavalry from Murfreesboro, Tenn., to Indianapolis, Ind., 326 miles, at the rate of one day’s pay and one day’s subsistence (4 rations per day) for every 20 miles of travel between said points, amounts to $48.53. The internal revenue tax would be $1.46.
    III. Claimant applied to the accounting officers of the Treasury for travel allowances, and his claim was disallowed upon the ground that his resignation was tendered and accepted for personal reasons.
    Except as above stated, the claim was never presented to any officer or department of the Government prior to its presentation to Congress and reference to this court, as hereinbefore set forth, and no reason is given to show why said claim was not earlier prosecuted.
    CONCLUSION.
    Upon the foregoing findings of fact the court concludes, on the authority of the case of Sweet v. United States, 189 U. S., 471, that the claim herein is neither a legal nor an equitable one against the United States, they having received no benefit therefrom, and any payment thereof rests in the bounty of Congress.
    
      Mr. G. D. Pennebaker'for the plaintiff.
    
      Mr. B. IF. Andrews, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
   Hownv, Judge,

delivered the opinion of the court:

This is a claim for travel pay and subsistence by a former officer who commenced his Army duties at Indianapolis, Ind., and who resigned from the military service February 26, 1863, at Murfreesboro, Tenn. — the travel pay and subsistence claimed being from the place of discharge to the place of enrollment — and notwithstanding the resignation was tendered and accepted to suit the officer’s convenience. The petition was filed September 13, 1910. The claimant, relying upon the Army records, offered no proof. Findings were filed November 11, 1912, including the statement that the officer was furnished transportation in kind to Nashville, Term., but had not been paid travel pay from that point (or travel subsistence from Murfreesboro) to the place of enrollment. This finding was evidently made upon the presumption that the Government was operating a railroad from Murfreesboro to Nashville. The conclusion of the court was upon the authority of the case of Sweet v. United States, 189 U. S., 471, that the demand was neither a legal nor an equitable claim against the United States.

Application was then made by the claimant to certify the findings to Congress. But defendants objecting, this motion was sent to the files. February 26, 1913, the claimant filed his own deposition disclosing that he had not been furnished transportation in kind for any part of the journey from the place of his discharge to the place of his enlistment and also disclosing a small discrepancy in the amount reported.

The objection of the defendants to the certification was supplemented by a motion to amend the findings by showing, among other things, that no evidence had been produced to prove that transportation in kind was or was not furnished the officer upon his discharge. March 18, 1913, claimant made a motion for a new trial, evidently proceeding upon the idea that the deposition of the claimant filed after the hearing would be considered by the court. The taking of this deposition was irregular and for purposes of trial without authority. Though this deposition had no proper place in the files, the court will consider the whole record on the various motions for new findings in place of those .now on file. We supplement the present and amended findings by this opinion to show the exact state of the case as it has come on recent submission to the court.

In Sanderson’s case, 41 C. Cls. R., 230, we adverted to the fact that at the time that claimant was discharged thousands of soldiers were being transported over private lines, but that money was not furnished to discharged officers or men. That is, that transportation was given indirectly when given at all. On the record as there presented the court was of opinion that it would be dangerous to establish the precedent for such cases at this late day should the Government be compelled to assume the burden of proof.

The record of transportation to discharged officers or enlisted men seems to have been kept only between the Government and the transportation companies wherein the name of the officer or enlisted man would not remain of permanent record. War Department returns in the present case indicate that the names of officers or enlisted men receiving transportation would only be disclosed by the certificate furnished to them; but upon the surrender of the certificate the transportation company would settle the account with the United States. Under these circumstances the court is of opinion that some satisfactory evidence should be furnished by every claimant to remove the presumption naturally arising in the minds of reasonable men that the Government at the time of the discharge of officers and men from the military service had complied with the law in the matter of furnishing transportation whensoever proper.

In the present case the court has no reason, as in the case of Stone v. United States, 164 U. S., 382, to discredit the claimant where he alone testifies except his conduct and the lapse of time created by his neglect. The burden of proof is upon the claimant. His inattention has deprived the Government of any opportunity to defend. Nearly 50 years elapsed before the claimant undertook to, present any claim to the courts, and no effort seems to have been made by bim to support his present statement beyond what the archives in possession of the Government show. These archives do not show whether transportation was furnished and subsistence supplied.

The court does not undertake to declare an arbitrary rule of evidence, but does declare that the age of this claim, the failure to present it for nearly half a century to this court, and the meagerness of the testimony now offered to substantiate it is unsatisfactory. Especially is this so inasmuch as the claimant1 first went to trial without any statement of his own or anything whatsoever to make out his case.

The case of United States v. Sweet, supra, was not decided until about 10 years ago. The Supreme Court followed the settled practice of the War Department and of the Treasury to deny allowances claimed when an officer or soldier is discharged at his own request and for his own pleasure and convenience. So this court and every other branch of tfie Government should follow a rule so long established and so essentially just. And for want of satisfactory proof, even if the rule were otherwise, there can be no. finding in the claimant’s favor.

It is ordered that the findings of the court be transmitted to Congress, together with a copy of this opinion.  