
    THOMAS McNAMARA v. THE UNITED STATES.
    [No. 17446.
    Decided May 29, 1893.]
    
      On the Proofs.
    
    A sergeant in the Army receives from the President, August 13, 1890, a certificate of merit “for gallantry in action against hostile Ute Indians at Mills Creels, Colorado, September 29, 1879.” He is paid the additional pay allowed by law only from the date of the certificate.
    I. The Aet 9th Februa/nj, 1891 (26 Stat. L., p. 737, % 2), which declares that “Section 1285 Revised, Statutes, be, and is hereby, amended to read: ‘A certificate of merit granted to an enlisted man for distinguished service shall entitle him from the date of such service to additional pay’” is retroactive.
    
      II. Whether a statute will or will not he held retroactive depends on. its. own circumstances, and considerations of convenience, reasonableness, and justice. Where it is remedial, and the indication of legislative intent is that it shall correct a narrow construction given to a previous statute, it will he held to he retroactive.
    III. This form of legislation, the giving of a different reading to a prior act is peculiar to Congress.
    IY. So far as retroactive legislation affects the liability of the United States and does not interfere with vested rights, and is not penal, it is within the constitutional powers of Congress.
    
      The Reporters’ statement of tbe case:
    The following are the facts of the case as found by the court:
    I. The claimant, Thomas McNamara, is a private of Troop B of the Third Regiment of Cavalry in the regular Army of the United States. His service from original enlistment has been as follows:
    November 17,1868, he enlisted in Troop K, Second United States Cavalry, at New York, N. Y., as a private, and was assigned to Troop K, Second Cavalry.
    November 27, 1873, he was discharged at Fort Laramie, Wyo. T., by expiration of term of service, a private.
    December 11,1873, he reenlisted at Fort Sanders, Wyo. T., in Third Cavalry, and was assigned to Troop B. December 11,1878, he was discharged at Red Cloud Agency, Dak. T., by expiration of term of service.
    February 17, 1879, reenlisted at Fort Steele, Wyo. T., in Third Cavalry, and was assigned to Troop B, and discharged February 16, 1884, at Fort Grant, Ariz. T., by expiration of term of service, a private.
    February 25,1884, reenlisted at Jefferson Barracks, Mo., in mounted service, and assigned to Troop M, Third Cavalry. Transferred to Troop E, Third Cavalry, August 8,1885. Discharged February 24,1889, at Fort Clark, Tex., by expiration of term of service.
    March 5, 1889, reenlisted at Fort Leavenworth, Kans., in Troop B, Third Cavalry.
    II. August 13, 1890, the President granted to him, at the recommendation of the commanding officer of his regiment, a certificate of merit, under Revised Statutes, section 1216, “for gallantry in action against hostile Ute Indians at Milk Creek, Colorado, September 29, 1879, where, though wounded in the right thigh, and having had his horse shot under him, and having been directed to the rear, he remained in the fight, and under heavy fire risked his own life to aid a severely wounded comrade, while serving as private, Troop E, Third Cavalry.”
    III. He has received additional pay at the rate of $2 per month, under Revised Statutes, section 1285, only from the date of said certificate of merit, August 13,1890, on the ground, as held by the Second Comptroller, that the act of February 9, 1891, chapter 122, § 2 (1 Supp. Rev. Stats., 2d ed., p. 889), is not retroactive, and therefore that -he is entitled to $2 per month for certificate of merit from date of the act only, contrary to the opinion of the Paymaster-General’s Office, where it was held that the amendment, by the act of February 9, 1891, entirely set aside the former provisions and the soldier became entitled to all arrearages of pay which he would have received had the statute been originally so framed.
    
      Mr. George A. King for the claimant.
    
      Mr. F. F. Dewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    The contention is that the amendments to sections 1216 and 1285, Revised Statutes, by act of February 9, 1885 (Supp. 889), have a-retroactive operation.
    The construction of section 1285, as amended, is in question. As amended, it reads:
    “A certificate of merit granted to an enlisted man for distinguished service shall entitle him from the date of such service to additional pay at the rate of $2 per month while he is in the military service, although such service may not be continuous.”
    It is a fundamental principle of the common law that a legislative enactment ought to be prospective, not retrospective, in its operation. Whilst it need not be in express terms made retroactive, yet it must be so expressed that by necessary implication it must be so construed.
    The above amendment enlarges the scope of the benefit of the original act. It now applies to “enlisted” men. It is not confined to a “private soldier;” it applies to military service, although such service may not be continuous, and it operates from the date of the service, not from the date of the certificate.
    
      It is not controverted that a law of this nature should be interpreted liberally, nor is it denied that a prospective construction would work individual hardship in the present case. But no right that he possessed at the time the certificate was given him is interfered with, no vested privilege is disturbed, by giving a prospective interpretation. It is well settled that, although the application of a law in special instances may work a hardship, the law should not for that reason receive a wrong interpretation; the individual case must yield to the public good.
    In construing this statute, the court must therefore apply general rules of construction, the first being, as above stated, that a legislative enactment ought to have a prospective, not a retrospective, operation. The intent of Congress in the enactment, if manifest, should control as far as possible the interpretation. But such intent must be found under the ordinary and accepted rules of interpretation of statutes. In the words of the amendment no retroactive words are expressed or implied. The certificate of merit in the present case is not granted under the amended act, and the rate allowed is to be paid whilst he is in the service.
    Counsel for claimant argue that the number of enlisted men in the Army who have received distinguished recognition is not so great that, even if for the benefit of plaintiff a wrong interpretation of the act is given by the court, the raid on the Treasury will not be very great.. It would be only a little thing — a little baby — for example.
    If construction asked for should be declared by the court, it would follow that everyone who had heretofore received a like certificate whenever granted would be entitled to $2 a month from the date of the service, and if the holder of such certificate were dead that, without the statute of limitations applying to the term of service, his heirs, executors or administrators would be entitled to payment.
    Surely Congress had no interest by the passage of this act to retroactively change preexisting law and Army Regulations.
    Plaintiff cites Hawlcins’ Caso (19 C. Cls. R., 611). In that case his honor, Drake, Oh. J., reasserts the “ general proposition, every law must be held to be only prospective in its operations, and that no law should be held to be retroactive, unless the intent to make it so be clearly manifested in its terms.” The acts of 1882 and 1883, granting naval longevity pay to naval officers, so frequently presented to this court, was under interpretation. The court, whilst recognizing the general principle, decided that by the terms used it was retroactive. Under the reasoning of the court in that case, the statute at present under consideration should be declared prospective in its operation.
   Eiohakdson, Ch. J.,

delivered the opinion of the court:

The decision in this case turns upon whether or not the act of February 9,1891, chapter 122, section 2, is retroactive.

"Be it enacted, <&e., That section twelve hundred and sixteen, Revised Statutes, be, and is hereby, amended to read:
“Sec. 1216. When any enlisted man of the Army shall have distinguished himself in the service, the President may, at the recommendation of the commanding officer of the regiment to which such enlisted man belongs, grant him a certificate of merit.’”
“ Sec. 2. Section twelve hundred and eighty-five, Revised Statutes, be, and is hereby, amended to read:
“Sec. 1286. ‘A certificate of merit granted to an enlisted man for distinguished service shall entitle him, from the date of such service, to additional pay, at the rate of two dollars per month while he is in the military service, although such service may not be continuous.’”

It is said in “Sutherland on Statutory Construction,” on the authority of many decisions there cited:

“As retrospective laws are generally unjust, and in many cases oppressive, they are not looked upon with favor. Statutes not remedial will therefore not be construed to operate retroactively, even when not obnoxious to any constitutional objection, unless the intent that they shall do so is plainly expressed or made to appear” (p. 600).
“Every case must, to considerable extent, depend on its own circumstances. General words in remedial statutes may be applied to past transactions and pending cases, according to all indications of legislative intent, and this may be greatly influenced by considerations of convenience, reasonableness, and justice” (p. 631).

For more than thirty years — from 1857 to 1890 — the Army Regulations have treated statutes of this kind as operating retroactively, and have provided that the extra pay of $2 per month granted on certificates of merit shall commence on the date of the service for which the certificate was granted. (Printed Regulations of 1857,1861,1863, 1881, and 1889.)

Those Army Regulations, having been approved by Congress, are recognized as having the force of law (Smith’s Case, 23 C. Cls. R., 452). Even if they did not have the force of law they would present in this case a marked instance of uniform contemporaneous construction by the Executive, which is “entitled to great respect” (Edwards Leese v. Darby, 12 Wheaton, 206, 210), and is sometimes held to be conclusive. (United States v. Hill, 120 U. S. R., 169, 180.)

March 5,1890, the Regulations were amended by a “general order,” not approved by Congress, by which it was provided that “the extra pay of $2 per month granted on certificate of merit commences on the date the certificate is granted.”

Within a year thereafter, February 9, 1891, Congress came to the relief of the gallant soldiers, apparently for the purpose, among others, of reaffirming, by statute, the regulations and practice before March 5, 1890, and of abrogating the general order of that date, and enacted this provision, under which the present claim is made: “A certificate of merit granted to an enlisted man for distinguished service shall entitle him from the date of such service to additional pay at the rate of two dollars per month while he is in the military service, although such service may not be continuous.”

This is a remedial statute, and the indication of legislative intent that it should operate retroactively plainly appears from the course of legislation approving Army Regulations wherein such construction to previous acts of like provisions was made a rule, aided by consideration of reasonableness and justice.

No such consideration can be conceived why the extra monthly pay for distinguished service should begin to run from the time of service in some cases and not in others, depending upon the dates of different certificates.

The comptroller holds in this case that the act applies to the claimant’s certificate, granted before its passage, and entitles him to extra compensation from the date of the act, although before the amendment he could have received no extra allowance, because his service in the army had not been continuous, as provided by the former law. If the act applies to the certificate of the claimant at all, as we think it does, it applies according to the whole of its terms and entitles him to the additional pay from the date of his distinguished services.

By the act of 1891 Congress declared that section 1285 of tbe Revised Statutes should read as provided in said act. This form of legislation — the giving a different reading to a prior act — is peculiar to Congress, so far as we have observed. It is reasonable to presume, from such phraseology, that the intention was that the latter act should be construed as having effect from the date of the prior act, as though such prior act had been originally so framed, as held by the Paymaster-General’s Office. (See Ludington’s Case, 15 C. Cls. R., 453.)

So far as such legislation, thus construed, affects the liability of the United States, and does not interfere with the vested rights of individuals and is not penal, it is within the constitutional power of Congress and is not obnoxious to the objections to retroactive laws, especially when such laws are remedial.

We hold that the act of 1891 is retroactive and entitles the claimant to recover the sum of $260, for which judgment will be entered in his favor.  