
    DR. CHARLES TAYLOR’S CASE.
    John G. Williams, administrator, &c., v. The United States.
    
      On the Proofs.
    
    
      A surgeon’s mate in the Continental Army, on the consolidation of the Virginia regiments in 1778, is reduced and becomes a sv/pernmnerary officer. While continuing to be a supernumerary he accepts the position of surgeon’s mate in a regiment does not “continue in the service-to the end of the ■war”; consequently its au thorized in 1779, and snbseqxtently is promoted to be surgeon. This regiment officers are not entitled to the half-pay for life asm-red to those who should thus continue in the sm-vice. Aftm- their discharge, its officers were not considered as supernumeraries.
    
    I. Supernumerary officers’ of the Continental' Army were entitled to half-pay for life under the Resolution 21 st October, 1780 (Jour. Cong., vol. iii, 538); hut that resolution was not intended to he cumulative to the Resolution 9th January, 1779 (Jour. Cong.,- vol. iii, 179), which directs that the officers to he appointed to a certain battalion be taken feom the supernumeraries. It applied only to those officers who continued to he supernumeraries to the end of the war. ’
    II. If a supernumerary officer in the Continenal Army subsequently accepted a commission in another regiment, he lost the character of supernumerary and all right to the half-pay for life assured to supernumeraries by the Continental Congress.
    
      The Reporters' statement of tbe case:
    The following are the facts as found by the court:
    I. Dr. Charles Taylor, in 1776, held the office of surgeon’s mate in the Second Viginia Regiment in the Continental service. On the reduction and consolidation of the Virginia regiments, in 1778, Dr. Taylor was reduced and became a supernumerary officer.
    II. While Dr. Taylor continued to be a supernumerary, as described in the first finding, he was appointed surgeon’s mate in the regiment of guards authorized by the’resolution of January 9, 1779, of the Continental Congress. This position he accepted and held. On the 26th October, 1779, he was promoted to be surgeon in the same regiment, which office he likewise accepted and held until tbe regiment was discharged, on the loth June, 1781. Dr. Taylor received and accepted full pay while he held the offices of surgeon’s mate and surgeon in the regiment of guards.
    III. After he was discharged from the service, on the 15th June, 1781, it does not appear that he was treated or considered as a supernumerary, nor that he sought or received pay as such.
    (And the court, at the claimant’s request, found the following additional facts:)
    IV. Dr. Charles Taylor was in actual service as surgeon only from October 26, 1779, to June 15, 1781, viz, one year, seven months, and twenty days, but the State of Virginia has recognized and considered and treated him as continuing in the service as supernumerary sm’geon of the Continental line of that State until the end of the war, by granting to his heirs bounty-land warrants for three years and to the end of the war as surgeon.
    V. Being a supernumerary surgeon’s mate in the Continental service in the Virginia line, he was assigned to active duty in the battalion of guards by virtue and under the requirements of the Resolution of Congress of January 9, 1779, raising the battalion, as a regular and permanent officer in the Continental service, and as such was promoted to be surgeon in the regular Continental sendee on the 26th October, 1779.
    VI. That the acceptance by the Virginia line and officers of the commutation under the Resolution of Congress of March 22, 1783, was made and duly reported, as required by the resolution.
    VII. That Dr. Charles Taylor was living and received pay in person on the 30th day of July, 1783, of £120 7s. Id., and that he continued to live until after January 4,1821.
    VIII. That Dr. Charles Taylor was not paid half-pay for life under the Resolutions of Congress of October 21,1780, and January 17, 1781, and that no commutation certificate was issued to him in lieu thereof, as per Resolution of Congress, March 22, 1783.
    IX. That the said Dr. Charles Taylor and his heirs and immediate legal representatives have made, prior to the bringing of this suit, frequent applications for the payment of this claim, and that a memorial to Congress praying its payment was referred by the House of Representatives on the 22d day of January, 1859, to the Court of Claims for adjudication.
    
      
      Mr. John Pool and Mr. P. P. Dye for tbe claimant:
    .This is a claim for the five years’ full pay for Dr. Charles. Taylor, a surgeon in the Virginia line- of the Continental Army in the war of the Revolution, in lieu of half-pay for life under the resolutions of Congress of October 21,1780; January 17, 1781; March 22,1783; May 16, 1783, and June, 1784; Virginia Act May, 1779; Act Congress July 5,1832. . (Laws U. S., vol. 8, p. 654.)
    The principal amount claimed is $3,900, estimated upon the basis of $65 per month, as fixed by the resolution of Congress September 30, 1780. On this principal amount interest is claimed at the rate of 6 j>er cent, per annum to date, under the resolutions of Congress of March 22, 1783, and June 3, 1784. Jour. Cong. vol. iv, pp. 178, 443.
    The Resolution of September 30, 1780, (Jour. Cong., vol. in, pp. 526, 527, 528, 529, 530, 531), provides for “the pay and establishment of the officers of the hospital department and medical staff,” and specifies the pay of the director, chief physician, and surgeons of the army and hospital, purveyor and apothecary, physicians and surgeons of the hospital, assistant purveyors and apothecaries, regimental surgeon, surgeon’s mates in the hospitals, surgeon’s mate in the army, and steward and wardmaster for each hospital. Dr. Taylor rendered medical service to the United States as regimental surgeon in connection with the army, and as such he was entitled to compensation.
    “ Resolved, That the commander-in-chief and commanding officer in the southern department direct the officers of each State to meet and agree upon the officers for the regiments to be raised by their respective States, from those who incline to continue in service and where it can be done by agreement, to be determined by seniority, and make return of those who are to remain; which is to be transmitted to Congress, together with the names of the officers reduced, who are to be allowed half-pay for life. That the officers who shall continue in the service to the end of the war shall also be entitled to half-pay during life, to commence from the time of their reduction.” (Jour. Cong., vol'. in, pp. 538, 539, Oct. 21,1780.)
    “Resolved, That all officers in the hospital department and medical staff hereinafter mentioned, wbo shall continue in the service to the end of the war, or be reduced before that time as supernumeraries, shall be entitled to and receive during life, in lieu of half-pay, the following allowance.” (Jan. 17, 1781, ib.r vol. iii, p. 569.)
    That it was further resolved by Congress, March 22, 1783 (see ib., vol, iv, pp. 178,179), “that such officers as are now in the service and shall continue therein until the end of the war shall be entitled to receive the amount of five years’ full pay in money or securities, on interest at six per cent, per annum, as Congress shall find most convenient, instead of the half-pay promised for life by the resolution of the 21st day of October, 1780 ; the said securities to be such as shall be given to other creditors of the United States; provided, it shall be at the option of the lines of the respective States, and not of officers individually in those lines, to accept or refuse the same; and provided, also, that their election shall be signified to Congress through the commander-in-chief, from the lines under his immediate command, within two months, and through the commanding officer of the Southern army, from those under his command, within six months from the date of this resolution.
    “That all officers belonging to the hospital department, who are entitled to half-pay by the Resolution of the 17th day of January, 1781, may collectively agree to accept or refuse the aforesaid commutation, signifying the same through the commander-in-chief, within six months from this time; that such officers as have retired at different periods, entitled to half-pay for life, may collectively, in each State of which they are inhabitants, accept or refuse the same; their acceptance or refusal to be signified by agents authorized for that purpose within six months from this period; that with respect to such retiring officers, the commutation, if accepted by them, shall be in lieu of whatever may be now. due to them since the time of their retiring from service as well as of what might hereafter become due, and that so soon as their acceptance shall be signified, the superintendent of finance be, and he is hereby, directed to take measiires for the settlement of their accounts accordingly, and to issue to them certificates bearing interest at six per cent.”
    The Virginia line formally accepted the five years’ full pay in lieu of half-pay for life, in accordance with the terms of the provisQ in the resolution last above recited, which acceptance is found recorded (Jour. of Cong., vol. iv, p. 311) as follows:
    “The Secretary of War reported that the following lines, corps, and individuals have agreed to accept the commutation of five years’, pay in lieu of the half-pay for life, as appears by the papers accompanying his report: The fines of New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, and Yirginia.”
    * ******
    •Again, by Act Jxily 5,1832 (Laws IJ. S., vol. 8, ch. 759, sec/ 2, p. 654), the half-pay promised by Yirginia to her officers of the revolutionary army was assumed by the United States in consideration (inter alia) of the cession of the Northwestern Territory by Yirginia to the United States, and said officers or their representatives were directed to be paid, with interest upon each year’s half-pay, from the time the same became due.
    ' Mr. H. M. Hastings (with whom was. the Assistant Attorney-General) for the defendant:
    Congress over and over again has limited the time in which claims of this nature could be presented, has provided for the kind of evidence upon which alone they shall be considered or even noticed, and neither of these conditions has claimant met, but failed in both. (Resolution 2 Nov., 1785, vol. 10 Jour. Oont. Cong., 366, Claypool’s ed.; Resolution of 23 July, 1787,12 Clay-pool, 114; 1 Stat. L., 245, 301; Am. State Papers, Claims, pp.-406, 407.) Reference of a case to this court by the House of Representatives does not repeal these laws of the United States.
   Nott, J.,

delivered the opinion of the court:

Dr. Charles Taylor, of the Second Yirginia Regiment, in the Continental service, was one of the reduced officers or supernumeraries referred to in the Resolution 21 st October, 1780 (Jour., vol, iii, p. 53S), of the Continental Congress, and as such would have been entitled to half-pay for fife, subject to a commutation of five years’ full pay, subsequently provided for, by the Resolution 22d March, 1783 (Jour., vol. iv, p. 178). But while Dr. Taylor'was thus out of the service as a supernumerary, the Continental Congress, on- the 9th January, 1779 (Jour., vol. iii, p. 179.)

“Resolved, That a battalion, consisting of 600 men, properly officered, be forthwith raised, on Continental establishment, in Virginia, for the space of one year from the time of their enlistment, unless sooner discharged, under the direction of the governor and council of that State, who are hereby empowered to appoint the officers of the said battalion out of those of the Virginia line who have been left out of the late arrangement of the Continental Army, as far as their numbers will reachP

Dr. Taylor accepted an appointment in this regiment as surgeon’s mate — the same rank he held as supernumerary — and was promoted later to be surgeon, and held the office of surgeon until the regiment was mustered out or discharged from the Continental service. As an officer of this regiment, Dr. Taylor never became entitled to half-pay or commutation, inasmuch as it did not continue in the service to the end of the war,” and the only question in the case is whether he became again a supernumerary when discharged with his regiment.

It is manifest that the Continental Congress regarded reduction to a supernumerary as in one sense degradation, and intended the half-pay for life as compensation for the loss of full pay during the war with the consequent chances of promotion. It is also manifest that they regarded an appointment in the regiment of guards as preferment, and a means for relieving an officer from the loss and mortification of being a supernumerary. Certainly it cannot be pretended that the Congress considered these things as cumulative, and intended that a person should at the same time draw full pay as an officer in the guards and half-pay as a supernumerary. It also seems indisputable that if the guards had remained in service till the end of the war, Dr. Taylorwouldhavebeenentitledtohalf-payforlife as surgeon, and would not have been relegated to his former position of supernumerary surgeon’s mate; and yet again it seems equally clear thathe would nothavebeen entitled to retire atthe end of the war with half-pay as surgeon and likewise with half-pay as a supernumerary surgeon’s mate.

To sum up the matter in few words, there is no reason for supposing that the Continental Congress intended these positions to be cumulative, nor that they intended that an officer should have the advantages of full pay and promotion in the guards and tlien resume tbe compensation intended for those who liad been deprived of them. It is impossible to hold that the same man was at the same time both an officer in service and a supernumerary out of service. There was no compulsion in serving in the guards; no one knew that the service might not continue to the end of the war; the officer had his option of accepting the preferment or of .retaining his position as supernumerary; but by accepting the one he resigned the other. We have no doubt that this was well understood at the time, and that it accounts for these officers never having presented claims for pay as supernumeraries.

The judgment of the court is that the petition be dismissed.  