
    BOWMAN’S CASE.
    Joseph Bowman v. The United States.
    
      On the Proofs.
    
    
      A soldier enlists in the Twelfth Tennessee Volunteers on the ZAth September, 1863, and is mustered out with his regiment ort the 5th September, 1865. He brings Ms suit to recover certain pay and bounty on the 15th September, 1871, more than six years from his muster-out. The defendants,plead the-statute of limitations. The claimant replies that, having been for a time absent without leav , he teas reported as a deserter, and that until the charge of desertion was removed by the War Department the accounting officers of the Treasury would not act upon his account, and consequently that his right of action was virtually suspended. He does not produce a discharge, nor show that when he applied for his bounty he made the oath required by the Act March 3, 1869, (15 Stat. L., 334, § 4.)
    I. A claim for pay and allowances due when a soldier is mustered out of the service accrues then, and then the statute of limitations begins to run, Act March 3,1863, (12 Stat. L., p. 765, § 10;) and the refusal of the officers of the Treasury to examine his accounts until certain charges of desertion are removed does not suspend his right of action or relieve his claim from the operation of the statute.
    II. The fact that a soldier is mustered out with his company at the end of the war may he taken as proof that he was discharged “ at the expiration of his term of service ” within the intent of the Act March 3,1869, (15 Stat. I/., p. 334, § 1,) hut is not evidence that he was “ honorably discharged>r within the meaning of the Act July 28, 1866, (14 Stat. L., p. 322, $ 12.)
    III. The bounty given by the Act July 28,1866, (14 Stat. L., p.322, § 12,) to soldiers who served during the rebellion was not a part of the contract, but a gratuity, which might be taken away at the will of Congress. If not presented in the form and within the time prescribed by the Act March 3, 1869, (15 Stat. L., p. 334, § 4) and certain other acts extending the time, it became void.
    
      
      2Ir. A. L. Merriman for tlie claimant:
    There is no authority in law for deduction of pay by reason of absence for sickness. Paragraph 1326 of Army Regulations of 1861 shows the only case where payment for absence shall be deducted, i. e., without leave, and then only when a satisfactory excuse has not been rendered. The appropriations by Congress were particular to pay the sick and wounded in the hospitals, convalescent camps, and elsewhere. (12 Stat. L., 825; see also Pension Act of 1866, 14 Stat. L., 57.)
    
      2£r. John 8. Blair (with whom was the Assistant Attorney-General ) for the defendants:
    The claimant was improperly absent from his regiment, and therefore cannot recover. The most that can be said in his favor is that he left the company November 1, 1863, on a verbal furlough. But an indefinite furlough was void by the Regulations, although he might not be a “deserter” in consequence. There is no moral ground in favor of his recovery. He remained at home about his own business, having a comfortable time among his friends, during almost his whole enlistment, doing no service for the Government. By the Regulations he should have reported every thirty days, and have had his leave properly extended. The course pursued leaves a great opening for fraud. Non constant, if he had gone to a hospital, he might have recovered and rendered efficient service. At least he could have performed some hospital-service, and thus, perhaps, have relieved some competent man for the field. But, at all events, if he did not recover, the Government could have discharged him, as stated by the Adjutant-General. But, as it was, upon the strength of his first leave he remains at home, and makes no report, and gives no information, just as if he was not in the service j and certainly it would be unjust that he should recover, even if jshe law shall warrant it. ' If it was right for this man to be absent in this way and recover, then it would be the same if a large number of men were in the same situation; and thus the Government not only would pay the sick men, but furnish and pay another similar number to supply their places in the field, having no information on which the sick men could be discharged. So far as appears, he remained at home instead of going to a hospital, for fear that he would be mustered out. It appears from the report of the Second ■Comptroller that large numbers were thus away from their regiments. The result of this practice is well shown in the Comptroller’s report; and although the claimant was not really a deserter, he was technically absent without leave, having remained over thirty days without extension. An oral furlough is void. It must be in writing. A soldier must always have about him his authority for his absence, or he can be arrested as a deserter. Even to save life an officer could have leave from his command for only twenty days; and yet this soldier was allowed by his commander an unlimited furlough, (and that not in writing,) when by law he could only grant one for not exceeding thirty days. I find no authority for a commander of a regiment to grant any furlough except the extracts referred to. Of course all soldiers should have their just rights; but, as we view it, it will be unjust to allow him to recover under the circumstances, when by his own act he placed himself out of the pale of the authority which could and undoubtedly would have discharged him long before, if his ez-parte evidence is true.
   Nott, J.,

delivered the opinion of the court:

The claimant enlisted in the Twelfth Tennessee Volunteers on the 24th September, 1863, and was mustered out of service with his regiment on the 5th September, 1865. This suit to recover certain pay and allowances was not brought till the 16th September, 1871, being more than six years after his muster-out) and the Government has set up the statute of limitations.

The plea of the statute of limitations divides the consideration of the claimant’s demand into two parts: First, of the pay and allowances due to him at the time of his muster-out; second, of the bounty given by the Aet July 28,1866, (14 Stat. L., p. 322, § 12.)

As to the former, it is said by the claimant’s counsel that the right of action was suspended by certain charges of desertion, and remained suspended until the charges were removed. It has been the practice of the accounting officers of the Treasury, under a decision of the Second Comptroller, to refuse to examine' a soldier’s accounts who stands reported as a deserter, the Second Comptroller very properly holding that the stigma and forfeiture incident to desertion should be removed by the Department having immediate authority to investigate and act upon the charge; but we are aware of no statute which would authorize the Executive Departments to take away, in their discretion, a right of action given by statute. A soldier serves under contract, as was decided in Kelley's Case, (5 C. Cls. B., 476,) and, like other contractors, may bring his action against the Government. The claim for pay and allowances due when the soldier was mustered out of the service unquestionably accrued then, and then the statute of limitations began to run. (Amended Court of Claims Act, 12 Stat. L., p. 765, § 10.)

The second part of the demand, the claim for bounty under the Act July 28,1866, is not barred by the statute of limitations. It rests entirely upon the terms of that statute and of certain subsequent acts of Congress. The comprehensive opinion of Judge Milligan in Philbroolc's Case, (8 O. Cls. B., 523) has brought all of the bounty-laws before us, and leaves little to be done besides applying his labors to the present case. The twelfth section of the Act July 28,1866, gives a bounty of $100 to a soldier upon certain conditions, and among others that he “ served the time of his enlistment" and that he “ has been honorably discharged." ' The soldier in this case did not serve the time of his enlistment; that is, three years. But the Act Mar eh 3, 1869, (15 Stat. L., p. 334, § l,)"provides “ that, when a soldier's discharge states that he is discharged by reason of 1 expiration of term of service,’ he shall be held to have completed the fall term of his enlistment, and entitled to bounty accordingly." In this case no discharge whatever is produced. Still, if their were no other objection, it is possible that his muster-out with his company at the end of the war might be taken as a discharge “at the expiration of his term of service." But this construction will not obviate the want of proof that he was “ honorably discharged."

Furthermore, the Act July 28,1866, provides (§ 14) that a soldier who has sold his bounty shall forfeit all claim to it; and “ ichen application is made by any soldier for said bounty, he shall be required, tinder the pains and penalties of perjury, to make oath or affirmation of his identity, and that he has not so bartered, sold, assigned, transferred, exchanged, loaned, or given away either his discharge-papers or any interest in any bounty as aforesaid and the Act March 3, 1869, (15 Stat. L., p. 334, § 4,) provides that all claims for bounty under the foregoing statute “ shall be void unless presented in due form prior to the 1st day of December, 1S69.’7 The Act July 13,1870, (16 Stat. L., 254,) further extends the time for filing claims, and the Act April 22,1872, (17 Stat L., 54,) ends the series by again extending the time to the 30th January, 1873. In the case before us it does not appear that the claimant ever presented his claim for this bounty to the proper officer, and it is impossible for the court to infer that it was “presented in due form ” within the time limited by law.

If these provisions of the statutes related merely to the powers of the auditing officers, it might be argued that they imposed no limitation on this court; in other words, there might be one statute of limitations for the executive and another for the judiciary. But two things are to be observed which shut out the consideration of any such question: First, the bounty was not a part of the contract, but a statutory gratuity which might be given and taken away at the will of Congress; second, the statutes which gave it expressly provided that upon the noncompliance of the soldier with certain conditions “it shall be void.” Here the soldier has neglected to show a compliance with any of these conditions, and his claim must consequently fail.

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