
    PETER W. BARNETT v. THE UNITED STATES.
    [No. 22383.
    Decided November 4, 1901.]
    
      On the Proofh.
    
    In Price’s Case (4 C. 01s. R., 164) this court is of the opinion that an officer discharged at his own request is not entitled to transportation from the place of his discharge to the place of his residence, but, for the purpose of an appeal, renders judgment for the claimant. The judgment is affirmed by the equal division of the Supreme Court. In Thornton Case (27 ('. Cls. K., 342) this court holds that an amendment enacted in 1877 inserting the words “except by way of punishment for an offense” changed the law, as interpreted by the accounting officers, and entitled the officer to recover. The case was appealed and reversed, but upon another ground.
    I. A construction of a statute which has long prevailed should not lie overturned except for cogent reasons; but where a judgment based on a contrary construction of the statute was affirmed by an equal division of the Supreme Court, and a subsequent judgment involving the same construction was reversed upon another ground, the question must be regarded as so doubtful that judgment should be rendered in favor of the party who has no right of appeal, the claimant.
    II. Where the words of a statute are plain — where it declares that a soldier discharged from the-service, “ except by way of punishment for an. offense,” shall be allowed transportation from the place of his discharge, to the place of Iris residence (Rev. Stat., § 1289) its intent can not be controlled by the construction given to it by the accounting officers
    
      The l¿aj)o/‘fr/‘x statement, of the- case:
    The following are the facts of the case as found by the court:
    I. The claimant enlisted as a private in Company L, Twenty-fourth Infantry, United States Army, on March 13, 1899, at Indianapolis, Ind., and was discharged on his own application on March 12, 1900, at Fort Wrangell, Alaska, by Special Orders, No. 31, paragraph 23, Adjutant-General’s Office.
    II. That portion of Special Orders, No. 31, referred to in the foregoing- finding is as follows:
    “By direction of the Assistant Secretary of War, Private Peter W. Barnett, Compan}r L, Twenty ^fourth U. S. Inf an-try, now at Fort Wrangell, Alaska, will be discharged the service of the United States on March 12, 1900, by the commanding officer of his station. This soldier is not entitled to travel pajE
    The distance from Fort Wrangell, Alaska, to Indianapolis, Ind., by the shortest usually traveled route, is 3,283 miles, and the claimant’s pay per day was 52 cents.
    III. The claimant has not been paid travel pay or commutation of subsistence for his journey from Fort Wrangell, Alaska, to Indianapolis, Ind., upon muster out, nor did he receive transportation or subsistence in kind.
    
      Mr. William, B. King for the claimant:
    The case of Thornton v. United States (27 C. Cls. R., 342) will be conceded to be conclusive in favor of the claimant unless this court is now prepared to overrule its own decision. In addition may be cited Kingsley v. United States (24 C. Cls. R., 219).
    Every consideration suggested in our briefs filed in the case of John O. Sweet v. The United States, a case of an officer under Revised Statutes, section 1289, appty to the present claim with the added force that, as veiy fairly and frankly stated in the brief for the United States:
    ‘ ‘ The officer has greater freedom of action. Ho may resign at will; whereas the enlisted man must abide the decision and will of his superiors with respect to his retii’ement from the service.”
    The reference made in the brief of the United States to the act of 1890, June 16 (ch. 426, sec. 2, 1 Supp. Rev. Stat., 757), renders it proper to refer in some detail to the provisions of that act and of subsequent legislation.
    The provision set forth in full in the brief for the United States in substance allowed a soldier in the Army after three years of faithful service to receive a furlough for three months, and, if in time of peace, entitled him at the end of that furlough to be discharged upon his own application, without the benefit of the travel allowance.
    It might be a sufficient answer to this argument to say that this soldier was not discharged in pursuance of the provisions of that act. Whatever equity the argument has is fully answered by the consideration that the soldier discharged under that act got the benefit of three months’ furlough on full pay, and when that furlough expired had his election to go back and serve out the remainder of his term, or to take an immediate discharge without travel pay. The very fact that Congress found it necessary to exclude soldiers so discharged from the benefit of section 1290 indicates the intention of that body that in any case not covered by that section they should be entitled to it; else why was it not enacted that no soldier discharged on his own application should be entitled to the benefit of section 1290? As said in Thornton v. United States (27 C. Cls. It., 342, 348): ^ Exceptio probat regulaon. Where a statute declares one exception, the judiciary can not declare that another was intended.’’
    The section quoted from the act of 1890 can hardly be said to have established any distinct policy on the part of the Government. It remained in force for only four years, for, by the act of 1894, August 1 (ch. 179, sec. 2, 2 Supp. Rev. Stat., 220), it was provided, “That hereafter all enlistments in the Army shall be for the term of three years.” As the discharge at the end of three years thus becomes now a matter of right, and not of favor, the soldier so discharged is entitled to travel pay, and no room is left for the operation of the proviso excluding him from travel pay.
    When Congress in its last enactment in relation to the Army came to deal with the subject of the discharge of a soldier upon his own application before the expiration of his term of enlistment it affixed no qualification denying travel pay to the soldier so discharged.
    Bjt the act of 1901, February 2, chap. 192, entitled “An act to increase the efficiency of the permanent military establishment of the United States” (31 Stat. L., 748), it was provided by section 30 (p. 756):
    “That in the event of the enlistment of a soldier in the Army for the period required by law, and after the expiration of one year of sendee, should either of his parents die, leaving the other solely dependent upon the soldier for support, such soldier may, upon his own application, be honorably discharged from the service of the United States upon due proof being made of such condition to the Secretary of War.”
    
      By the act of 1896, March 16 (ch. 59, par. 4, 2 Supp. Rev. Stat., 453), it is provided—
    “That no enlisted man discharged by order of the Secretaiy of War for disability caused bjr his own misconduct shall be entitled to the travel allowances provided for in section 1290 of the Revised Statutes.”
    Here again the exception declared by the statute only emphasizes the general rule.
    Finally, by the act of 1901, March 2 (ch. 803, 31 Stat. L., 902), itself a reenactment with additions of that of 1900, May 26 (ch. 586, 31 Stat. L., 210), officers and enlisted men are placed upon an equal footing in the future as to these travel allowances by giving them 4 cents a mile. Three times in the same enactment does this provision repeat the words “except by way of punishment for an offense” as a qualification to the provision that he shall receive these allowances when discharged from the service. A more decided expression of the continued intent of Congress to allow such compensation in every case whore an officer or enlisted man who leaves the service, otherwise than as a punishment, could hardly have been framed.
    
      Mr. F. W. OolUm (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    The Supreme Court of the United States has repeatedly held that when the meaning of a statute is doubtful, great weight should be attached to the construction placed upon it by the Department charged with its execution, where that construction has for many years controlled the conduct of public affairs. (Brown v. United States, 113 U. S., 568-571; Edwards v. Party, 12 Wheat., 206; United States v. IIHl, 120 U. S., 169, 182; United States v. Filbrielt, 120 U. S., 52-59; PobertsonY. Powniny, 127 U. S., 607, 613.)
    The case of Thornton v. The United Slates (27 C. Cls. R., 342) appears to be practically the only case wherein this court or any court has construed this or a similar statute (sec. 1290) contrary to the unbroken practice of the accounting officers of the Treasury.
    The decision of the Court of Claims in this case was overruled by the Supreme Court, the latter court, however, basing its reversal of said ease on a different ground.
    In the decision of the Court of Claims in the Thornton case the learned chief justice, in delivering the opinion of the court, is evidently impressed with the conviction that neither the committee which reported the amended law nor the members who voted for its adoption had any intention of “overruling the rulings and usage of the accounting officers for a period of forty-tíve jmars, and gave or was intended to give transportation to soldiers whose discharge at the time and place of discharge was of their own seeking- — was a favor and not a right” — for the court had previously stated that:
    “ The amendment enacted by the act of 1877, in striking out the word “ dishonorably” and at the same time inserting’ the words “except byway of punishment for an offense,” was intended to relieve courts and accounting officers from the embarrassment of determining whether a discharge was honorable or dishonorable.”
    That this was the intention and the sole intention of the lawmakers in the enactment of the said amendment there can be no question. Up to the enactment of the amended law grave doubt and perplexity had existed in the minds of both courts and accounting officers concerning the status of discharged soldiers, and as to whether their discharge from the service was honorable or dishonorable. This ambiguity and perplexity respecting the status of discharged soldiers was removed by the enactment of the amended law of 1877.
    The. Court of Claims, however, wrent further and in the Thornton case held that the amendment changed the law as previously administered by the accounting officers and the reenacted law7 having declared an exception, which is not the exception of the executive department, i another exception can not be declared by the judiciary.
    As to this construction it may bo remarked: If the intent is plainly expressed, it is to be followed without further inquiry; and where the meaning of a statute is clear and its provisions are susceptible- of but one interpretation, that sense must be accepted as the law.
    Nevertheless, the spirit as well as the letter of the law should bo invoked in the construction and interpretation of a statute.
    There is nothing in the law as amended bj- the act of 1877 to indicate that the word “discharged” as therein used meant anj'thing other or different from what ’ it Avas construed to mean by the accounting officers and also by the War Department, to wit, an involuntary discharge.
    That it should by accident or inadvertence come to include soldiers discharged upon their own request and by waj' of favor to them is unreasonable to suppose.
    The word “ discharged” as used in section 1289 as amended is not synonymous with the word “released.”
    The claimant, while technically discharged, Avas in fact sim-pty released from military service on his own application and not at the volition of the Government.
    The too strict construction of the laAV as it now exists would breed intolerable mischief and manifold abiises. As previously stated, if it were the purpose of Congress (which is not to be inferred from a perusal of the history of the legislation which resulted in the amendment of 1877) to overturn the settled practice and immemorial usage of the accounting department, this purpose nowhere appears in the amended statute itself; and if it has crept into said statute, it is there by accident and inadvertence.
    It is a well-known principle of construction that a literal construction should not prevail if opposed to the intent of the legislature; and if words are sufficiently flexible to admit of some other construction, such construction is to be adopted to effectuate that intention. (Sutherland on S' t. Construction, p. 325 and list of cases therein cited.)
   WeldoN, J.,

delivered the opinion of the court:

The claimant brings suit to recover the sum of $85.28 due him, as he alleges, for tnwel pajr and commutation of subsistence from the place of his discharge as a soldier of the United States to the place of his enrollment as such.

The facts show, that the claimant enlisted as a private in Company L, Twenty-fourth Infantry, United States Army, on March 13, 1899, at Indianapolis, Ind., and was discharged on his own application on March 12, 1900, at Fort Wrangell, Alaska, bjr Special Orders, No. 31, paragraph 23, Adjutant-General’s Office. The portion of said order which is necessary to bo considered is as follows:

‘“By direction of the Assistant Secretary of War, Peter W. Barnett, Company L, 24th U. S. Infantry, at Fort Wrangell, Alaska, will be discharged from the service of the United States on March 12, 1900, by the commanding officers of his station. This soldier is not entitled to travel pay. * * *
“By command of Major-General Miles.”

The distance from Fort Wrangell, Alaska, to Indianapolis, Xnd., by the shortest usually traveled route is 3,283 miles, and the claimant’s pay per day was 52 cents.

It is insisted upon the part of the claimant, that under and by virtue of the provisions of section 1289 of the Revised Statutes he is entitled to the sum demanded. The section is as follows:

“When an officer is (honorably) discharged from the service (except by way of punishment for an'offense) he shall bo allowed transportation and subsistence from the place of his discharge to the place, of his residence at the time of his appointment or to the place of his original muster into the service. The Government may furnish the same in kind, but in case it shall not do so he shall be allowed travel pay and commutation of subsistence, according to his rank, for such time as may be sufficient for him to travel from the place of discharge to the place of his residence or original muster into service, computed at the rate of one day for every twenty miles.”

To maintain the theory of plaintiff’s right to recover counsel cites the case of Thornton v. The United States (27 C. Cls. R., 342), in which case it was held that the plaintiff was entitled to recover notwithstanding he was discharged upon his own application. The case was appealed to the Supreme Court and reversed upon a point which was not raised in the comb below. The. decision of the Supremo Court reversing the case, did not pass upon the question as to what were the rights of the claimant as determined by the Court of Claims.

It is insisted by the defendants that the uniform and long-continued practice of the Government in the construction of this and similar statutes is against the right of the party to recover, where the discharge is granted at the request of the soldier, which contention is sustained b3r a reference to the authorities. This case therefore presents the question, as to whether that continued construction of the Department of similar statutes is to adversely^ determine the claim of the plaintiff in this proceeding.

The Supremo Court of the United States and this court have in manjT decisions recognized the binding force of what may be called administrative law, and in doubtful cases the Supreme and this court have followed the law as established by the continued construction of a Department.

In the case of The United States v. Johnston (124 U. S., 237) in the syllabus it is said:

“And all this brings the practice within the well-settled rule that the contemporaneous construction of a statute by those charged with its execution, especially when it has long-prevailed, is entitled to great weight and should not bo disregarded or overturned except for cogent reasons, and unless it be clear that such construction is erroneous.”

Tt is said in the decision of the Comptroller (5 Com. Dec., 117): “An officer or soldier discharged for his own convenience is not entitled to traveling allowances from the place, of his discharge to the place of his enlistment,” and in support of this theory cites Third Comptroller’s Decisions, pages 397, 640.

In Fifth Comptroller’s Decisions, page 989, the same doctrine is announced, and it is said, “It has been uniformly held by the accounting officers that an officer or soldier discharged for his own convenience is not entitled to travel pay-.’'

The case of Price v. The United States (4 C. Cls. R., 164) is based on this state of facts: The claimant was a lieutenant in the Thirty-ninth Iowa Volunteers during the civil Avar, and Avas enlisted into that service at Adel, State of IoAva; was discharged upon his oavii resignation (because of physical disability) in the State of Georgia; furnished with transportation as far as Few York, but refused transportation to his place of enlistment. He brought suit in this court for the cost of transportation from NeAV York to IoAva, and the court, after deciding adversely to his claim, by its reasoning, said:

“It appears that a large number of officers were discharged from service under circumstances like those shown in this case, who had been refused .traveling allowances; and it being suggested to the court that this is the pioneer of a large class of cases designed to test in the court of last resort the propriety of refusing such allowances, we shall render a judgment in his favor, expecting the United States to take an appeal in the case, which the claimant could not do if the judgment were against him. It is therefore ordered that a judgment be entered in favor of the claimant for traveling allowances from the place of his discharge from the service of the United States, as an officer, to the place of his enlistment, making the sum of two hundred and thirty-four dollars.”

According to the expectation of the court, that case was appealed to the Supreme Court, and by a mandate of that court filed in the Court of Claims May 9, 1871, the Supreme Court ordered the judgment affirmed by an equal division of that court.

The plaintiff, not having performed the full requirement in time of his enlistment, ivas upon his own application discharged from the service of the United States, and not “by way of punishment for an offense.” It is impossible to determine, aside from the desire of the plaintiff to be relieved from further service, what actuated the officer of the Arm}' representing the defendant in acquiescing in the request of the plaintiff. There may have been a military condition on the part of the defendants inducing to acquiesce in the request of plaintiff.

In the argument, counsel for the claimant insisted that there is no room or necessity for a construction of the law which governs the rights and obligations of the parties; that the words themselves (it appearing that claimant ivas not discharged by way of punishment for an offense) are without construction sufficient to maintain his right to recover; and that, when upon its face the statute is unambiguous, it is not the duty of the court nor its right to construe the statute. In the maintenance of that theory he cites the case of Dewey (35 C. Cls. R., 197) and the same case decided in the Supreme Couid (178 U. S., 510) in affirmance of the decision of this court, where1- the doctrine for which he contends, as he claims, is recognized and enforced. It is said by this court that — •

“It is not a question of what might be called unwritten law, but a question of purely statutory construction, and the intent of the legislature must be deduced from the terms employed in the phraseology and the words of the statute. Courts have no power other than the interpretation of the law as in their judgment it exists. Questions of policy addressing themselves to other branches of the Government are not incident to the judiciary. They have no policy and no authority save and except the declaration and application of the law as in their judgment it may seem to exist. Congress have iiassed the statute and defined its purposes in the express averment of words. Courts are constrained to follow the import of those words in the determination of the rights of parties and of the Government. In doubtful cases arising from ambiguous language courts will inquire into surrounding circumstances, having in view the history of the times and the condition intended to be affected by the law in coming to a conclusion as to its proper construction. But unambiguous words, importing in and of themselves the purpose and will of the legislature, must be permitted to perform their legitimate functions in the development and ascertainment of that will.”

In the Supreme Court it is said:

“Our province is to declare what the law is, and not, under guise of interpretation or under the influence of what may be surmised to be the policy of the Government, so to depart from sound rules of construction as in effect to adjudge that to be law which Congress has not enacted as such. Sere the language used by Congress is unambiguous. It is so clear that the mind at once recognizes the intent of Congress. Interpreted according to the natural import of the words used, the statute involves no absurdity or contradiction, and there is consequently no room for construction. Our duty is to give effect to the will of Congress, as thus plainly expressed.” (United States v. Fisher, 2 Cranch, 358, 399; Lake County v. Rollins, 130 U. S., 662, 670.)

In the case of Thorton, supra, it is said:

“The amendment enacted by the act of 1877, in striking-out the word ‘ honorabty ’ and at the same time inserting the words ‘ except by way of punishment for an offense,’ was undoubtedly intended to relieve courts and accounting- officers from the embarrassment of determining whether a discharge was honorable or dishonorable. The question now is whether the amendment did more than this — whether it overruled the rulings and usage of the accounting officers for a period of forty-five years and gave, or was intended to give, transportation to soldiers whose discharge at the time and place of discharge was of their oivn seeking — was a favor and not a right.
“ Whatever may have been the understanding of the com-mitten which reported the •amendment or the members who voted for it, the court must take the intent of Congress as it stands expressed in the statute which they have made. As the law stood by departmental construction of more than forty-live years of unquestioned usage, a soldier honorably discharged was entitled to transportation from the place of his discharge to the place of his enlistment, except in cases where he was discharged before the .expiration of his term of enlistment at his own request. The amendment came and changed the law as thus administered. The reenacted law declares an exception, which is not the exception of the Executive Departments. Ercejrfio próbat regulam. Where a statute declares one exception, the judiciary can not declare that another was intended. Here the statute as amended declares that 1 when a soldier is discharged from the service ’ ‘ he shall be allowed transportation and subsistence from the place of his discharge to the place of his enlistment,’ ‘except’ when his discharge is ‘bj'way of punishment for an offense.’ In this case the discharge not having been for the punishment of an offense, the case came within the rule and not within the exception.'’

Thus it will be seen that the substantial question involved in this case has never been directly and definitely passed upon by the Supreme Court of the United States. The law of the case as laid down in the opinion of the court below was against the plaintiff’s right to recover, but the judgment rendered by the court Avas in favor of the plaintiff, and that judgment in its legal- effect has been affirmed by the divided opinion of the Supreme Court.

It would seem from this condition of the law, notwithstanding the uniform construction of the Department, that the question involved in this proceeding is one which should be authoritatively settled by the judgment and opinion of the court of final jurisdiction. And that being true, in order that that purpose may be accomplished, a judgment is given for the claimant for the sum of $8&.28, following the practice which is recognized by this court in the Price case on account of the importance of the question involved and the uncertainty Avhioh surrounds the question, because of the unsettled state of the law as existing in the judicial department of the Government.  