
    CHARLES P. HOLAHAN v. THE UNITED STATES.
    [No. 16983.
    Decided February 25, 1895.]
    
      On the Proofs.
    
    In June, 1865, the claimant, a sergeant, is commissioned by the Governor of Pennsylvania as lieutenant, to take rank from the previous January. At that time (in January) he was a prisoner. He is paid from the date of his commission, and now seeks pay from the time when he was to take rank.
    I.The Act Scl February, 1887 (24 Stat. L., 377), provides that any person “held as a prisoner of war at the date of his commission" shall he entitled to the same pay as if actually performing the duties of the grade to which he was -commissioned. This does not extend to an earlier date “from which he was to talce rank."
    
    II.The purpose of the statute was to reckon the time when a soldier was actually held as a prisoner of war as equivalent to actual service from “the date of the commission."
    
    III.When a person is commissioned to take rank at an anterior date, no presumption can arise that he had actually entered upon and performed the duties of the grade from the time when he was to take rank. .
    IY. The construction of the Secretary of War that those held as prisoners at the date of their commissions were entitled to pay only from that date is entitled to great weight, and should not he disregarded in tnis case.
    
      The Reporters' statement of the case:
    There being no appeal in this case, no findings of fact were filed.
    
      Mr. O. P. Pennebalcer for the claimant:
    The Secretary of War has applied a rule of construction to this statute which makes it in many cases useless, and a rule of construction not warranted by the authorities. He takes the statute apart and dissects it, and construes it separately and in sections. This is a most novel method, and is probably founded upon the medical training of the “officer in charge” of the settlement of such cases. There are a few elementary principles, known to lawyers, which govern the construction of statutes. These principles are based on common sense, as is all law, but they are not to be found with a scalpel nor discovered with a saw. We do not wish to take a remedial statute apart, but we must, on the contrary, hold it together. This statute is remedial, and must be coustrued so as to provide the remedy intended by Congress. No technical rule of construction, such as the War Department delights in, can be applied.
    This claimant’s commission is dated June 28,1865. He was, by that appointment, given rank from January 26,1865, and a vacancy existed for him on said date. But the Secretary of War says that inasmuch as he was a prisoner of war on January 26,1865, he is not entitled to recognition, because the second proviso of the act of February 3, 1887, mentions date of commission and not date of rank. Here we have another dis- . section. The commission is taken apart and effect given to a part of it only. The issue seems to be too clear for argument. Under the act cited this claimant is entitled to judgment for pay as a second lieutenant of cavalry from January 26,1865, to June 27,1865, both days inclusive, deducting therefrom any sums paid him for services in any other grade during said period. Should this contention be sustained, the amount of the judgment to be entered can be readily determined by a statement of account at the Treasury Department.
    The claim made in the petition for pay from May 1, 1864, to June 27,1865, is abandoned because the evidence does not show that claimant was duly appointed or commissioned a second lieutenant of cavalry to cover all of that period.
    
      Mr. Charles C. Binney (with whom was Mr. Assistant Attorney-General Dodge) for the defendants:
    It is submitted that there is a very clear distinction, founded in reason, between the meaning of the words “the date from which he was to take rank,” in the first proviso, and “the date of his commission,” in the second. Under the circumstances to which the former applies — the actual performance of the duties of the grade to which the officer was subsequently commissioned — the Government has received the services for which • the pay is provided by this act, and it is just as reasonable \that those services which were rendered before the date of the commission should be paid for as that pay should be allowed for" services after commission but before muster. Hence, if Congress was to allow pay for any iieriod whatever prior to muster, it was only logical to allow it from tbe date from which the officer was to take rank, provided lie was doing the work of an officer of that rank. The second proviso, however, deals with very different circumstances. A prisoner of war receives pay for the period of his imprisonment because the Government is entitled to his services, and it is not his fault that he can not render them. If he is commissioned during his imprisonment, the Government is entitled to the services of his grade, just as if he were free, and a provision for his payment from the date of his commission, as if he had then been mustered in, is not unreasonable; but before the date of his commission the Government was not entitled to those services, and to allow him pay for that prior period is without reason, as he can not claim that his imprisonmeut prevented his performing duties which there is no certainty that he would have performed if free. The Joint Resolution of July 11,1870 (16 Stat. L., 385), provided that in both classes of cases pay should be allowed from the date of the commission only, but when in 1887 it was decided to allow pay from the date when retroactive commissions were to take effect, Congress made this very proper distinction between the cases where a man acted as an officer of a certain rank, though not then commissioned thereto, and those where a man neither so acted nor would certainly have done so even if his imprisonment had not prevented.
    This distinction is founded in reason, and accords perfectly with the manifest intention of the act; but even were this otherwise the two expressions, “the date from which he was to take rank by the terms of his commission” and “the date of his commission,” used in different parts of the act and applied to different classes of circumstances, are far too distinct in meaning to be treated as interchangeable. To interpret the second proviso by substituting for its language that of the first would be as unwarranted as to interpret the first proviso by a similar use of the language of the second.
    In the present case, therefore, inasmuch as the claim is based on the fact of the claimant having been a prisoner of war, and the statute allows such persons to recover pay from the date of their commissions only, it would seem clear that the date of the commission, June 28,1865, is the date from which the claimant should be allowed pay as a second lieutenant.
   Peelle, J.,

delivered the opinion of the court:

The facts in tbis cause, about which there is no controversy, are as follows: On March 14,1864, the claimant was mustered into the service of the United States as a private in Company A, Nineteenth Begiment Pennsylvania Cavalry Volunteers? June 10 following he was captured in action at Guntown, Miss.; March 1,1865, he was delivered on parole at North Bast Ferry, N. C., and reported at Camp Parole, Annapolis, Md., March 5 following, where, on June 29 following, he was mustered out of the service as a sergeant.

June 28, 1865, the governor of Pennsylvania issued to the claimant a commission as second lieutenant of said company and regiment to rank from January 26,1865, at which latter date the claimant was a prisoner of war in the custody of the enemy.

The claimant was recognized by the War Department as a second lieutenant in said company and regiment from the date of his commission, June 28,1865, but refused to recognize him as such prior thereto. At the date of the issuance of the commission, as well as at the date he was designated therein to take rank, there was a vacancy in the grade of second lieutenant in said company and regiment, and the claimant was commissioned to fill the same.

On these facts the claimant contends that he is entitled to recover, under the Act February 3,1887 (24 Stat. L., 377), the pay of a second lieutenant from January 26,1865, “ the date from which he was to take rank,” to June 27,1865.

The defendants contend that there is a clear distinction between the meaning of the words “the date from which he was to take rank,” in the first proviso, and “ the date of his commission,” in the second proviso.

The act referred to is as follows:

“ That section one of ‘ An act to provide for the muster and pay of certain officers aud enlisted men of the volunteer forces,7 approved June third, eighteen hundred and eighty-four, be, and is hereby, amended so as to read as follows:
“ ‘That the joint resolution, approved July eleventh, eighteen hundred and seventy, entitled, ‘ Joint resolution amendatory of joint resolution for the relief of certain officers of the Army,7 approved July twenty-sixth, eighteen hundred and sixty-six, is hereby so amended and shall be so construed that in all cases arising under the same any person who was duly appointed and commissioned, whether his commission was actually received by him or not, shall be considered as commissioned to the grade therein named from the date from which he was to take rank under and by the terms of his said commission, and shall be entitled to all pay and emoluments as if actually mustered at that date:
“ ‘ Provided, That at the date from which he was to take rank by the terms of his commission there was a vacancy to which he could be so commissioned, and that he was actually performing the duties of the grade to which he was so commissioned, or, if not so performing such duties, then from such time after the date of his commission as he may have actually entered upon such duties:
“‘And provided further, That any person held as a prisoner of war, or who may have been absent by reason of wounds or in hospital by reason of disability received in the service in the line of- duty, at the date of his commission, if a vacancy existed for him in the grade to which so commissioned, shall be entitled to the same pay and emoluments as if actually performing the duties of the grade to which he was commissioned and actually mustered at such date:
‘And provided further, That this act and the resolution hereby amended shall be construed to apply only in those cases where the commission bears date prior to June twentieth, eighteen hundred and sixty-three, or after that date, when their commands were not below the minimum number required by existing laws and regulations:
‘And provided further, That the pay and allowances actually received shall be deducted from the sums to be paid under this act.’” (24 Stat. L., 377.)

By reference to the Joint Resolution July 26, 1866 (14 Stat. L., 368), it will be seen that where a commissioned officer éntered on duty as such but was prevented from muster within a period of thirty days by reason of being killed in battle, captured by the enemy, or other cause beyond his control he was entitled to full pay.

The Joint Resolution, July 11, 1870 (16 Stat. L., 385), amending the one of 1866, fixed the date of the commission as the time when the pay of such officer should begin, if at that date he was performing the duties of the grade to which he was commissioned.' The second section thereof provided, in effect, that those who were held as prisoners of war by the enemy or who were in hospital by reason of wounds or disability at the time of issuing their commissions” should be entitled to the same pay as though actually performing the duties of the grade to which they were commissioned.

Tbe Act June 3, 1884 (23 Stat. L., 34), amending tlie joint resolution 1870, in substance provided that where a vacancy existed to which such officer could be appointed he should be entitled to pay, if performing the duties of the grade to which he was commissioned, from the date of his commission, whether the commission was actually received by him or not; and in case he was held as a prisoner or was in hospital by reason of wounds, etc., he was entitled to pay from the date of his commission without performing such service.-

Up to this time no pay was provided for such officers prior to the date of their commissions, whether performing the duties of the grade to which they were commissioned, or were absent as prisoners, or in hospital by reason of wounds, etc.

It will be noticed that this act of 1887, which is an amendment to the act 1884, provides that “ any person who was duly appointed and commissioned, whether his commission was actually received by him or not, shall be considered as commissioned to the grade therein named from the date from which he was to take rank under and by the terms of his said commission, and shall be entitled to all pay and emoluments as if actually mustered at that date.” To that language there are four limitations or provisos:

(1) “ That at the date from which he was to take rank ” there was a vacancy, and he was performing the duties of the grade, etc.;

(2) That if “ at the date of his commission” he was held as a prisoner of war, etc., and a vacancy existed for him, etc.;

(3) That the act shall only apply to those cases where the commission bears date prior to June 20,1863, or after that date when their commands were not below the minimum number required by existing laws and regulations, and

(4) That the pay and allowances received shall be deducted, etc.

In the body of the act as well as in the first proviso it will be noticed that the pay and emoluments therein provided for were to commence from the date at which he was to take rank by the terms of his commission, while in the second proviso the words “at the date of his commission” are used, showing that Congress, by the use of these words in the second proviso, intended to limit the pay and emoluments of those held as prisoners of war, etc., to the date of their commission, if at such date they were held as prisoners of war, etc.

But for the words “ at the date of his commission,” in the second proviso, the construction contended for by the claimant would perhaps have to be sustained, as in that event the' proviso would relate back to the date fixed in the body of the act; but the words being in the proviso, and the proviso being in harmony with the subject of the enactment, the court must so construe the act as to give force and effect to every word, clause, and provision of it.

There is no contention that the claimant comes within the first clause of the act, for the reason that neither at the date of his commission nor the date from which he was to take rank thereunder, or subsequently thereto, was he actually performing the duties of the grade to which he was so commissioned. Nor is there any contention that he comes within the first proviso of the act.

The facts show, and there can be no contention to the contrary, that at the date of the claimant's commission' he was not held as a prisoner of war, strictly speaking, his status, from March 1 to June 29,1865, being that of a “paroled prisoner of war.” But at the date from which he was to take rank under and by the terms of his commission, to wit, January 26, 1865, he was held as a prisoner of Avar. Therefore to entitle the claimant to recover the court must hold that “at the date of his commission” the claimant was held as a prisoner of war, and then so construe the act as to read into the second proviso the words “the date from which he was to take rank under and by the terms of his said commission,” which are found in the body of the act, as well as in the first proviso thereto, as applicable only to those persons who actually performed the duties of the grade to which they were commissioned. Such construction would not only involve reading into the second proviso the words indicated, but would involve reading out of the proviso the words “at the date of his commission,” which were placed there by .Congress for some purpose, as were the words of like tenor in the joint resolution of 1870 and the act of 1884. . •

What that purpose was the court can ascertain, if at all, only from the language used. The proviso is a limitation on the language that precedes it and not an extension of rights conferred by the act.

The language “at the date of bis commission”is susceptible of but one meaning, and therefore needs no interpretation. The court is not at liberty to construe the language to mean a date anterior to the date of the commission, much less to give such construction as would eliminate the language from the proviso. The court must deal with the language as it is found in the act, and if injustice results the remedy is with Congress.

We think the act provides that as to those present for duty, who were thus commissioned, their pay and emoluments shall begin, not from the date of their commission nor from the date at which they were to take rank from the terms thereof, but from the time they actually entered upon and performed the duties of the grade to which they were commissioned, while as to those who were absent by reason of being held prisoners of war, wounds, or disability, their pay and emoluments begin from the date of commission, thus reckoning the time so held as prisoners, etc., as equivalent to actual service from the date of their commission.

So it seems to us that the pay and emoluments provided for in the first clause of the act are conditioned upon actual service as well as a commission and a vacancy, as without actual service there could be no pay, under such commission, until after muster.

We take it that when a commission has been issued to a person in the Army, and nothing appears to the contrary, it is reasonable to presume that such person so commissioned enters upon the duties of the grade to which he was commissioned, although bound to know that in the absence of some special statute his pay and emoluments would not begin until after muster, and this view seems to have been the foundation of the joint resolutions and acts referred to.

But when a person was commissioned to take rank at a date anterior to the date of his commission, no presumption can arise that the person so commissioned had actually entered upon and performed the duties of the grade from the time when he was to take rank by the terms of such commission,therefore, by the terms of the act, before any person thus commissioned can receive the pay and emoluments of the grade from the date at which he was to take rank he must show that he was actually performing the duties of the grade to which he was commissioned.

This he can not do if at the time he was held as a prisoner of war, or was absent by reason of wounds, or confined in hospital by reason of disability, and no presumption can arise that if he had been present with his command he would have performed the duties of the grade to which he was commissioned.

Those held as prisoners of war are, by the terms of the second proviso, given the pay and emoluments therein provided for from the date of their commission, because being thus held as prisoners of war it could not be known when they would return and enter upon duly.

Soon after the passage of the act of 1887 the Secretary of War construed the same, holding that those who were held as prisoners of war at the date of their commissions were entitled to the pay and emoluments therein provided for only from the date of their commissions. This construction we think brings the case within the rule first announced in Edwards v. Darby (12 Wheat., 206, 210), and later in other decisions cited in the case of United States v. Johnston (124 U. S., 236, 253), where it is said “ the contemporaneous construction of a statute by those charged with its execution * * * is entitled to great weight, and should not be disregarded or overturned except for cogent reasons, and unless it be clear that such construction is erroneous.”

We are not satisfied that such construction is erroneous. On the contrary, we believe it is supported by the recognized rules of interpretation and founded in reason; and thus believing we hold that the claimant is not entitled to recover, and his petition is dismissed.  