
    GEORGE W. MURPHY v. THE UNITED STATES.
    [No. 22870.
    Decided April 6, 1903.]
    
      On the Proofs.
    
    The case involves two questions of statutory construction: (1) Is an enlisted man who has been retired entitled to 20 per cent increase of pay intime of war under the Acl 86th April, 1898 (30 Stat. L., 364, sec. 6)? (2) Is he entitled to an increase of §1 a month for each successive period of five years under Revised Statutes, section 1284?
    I. An enlisted man retired under the Acts 14th February, 1885, 80th September, 1890 (23 Stat. L., 305; 26 id., 504), is not entitled to the 20 per cent increase of pay given to enlisted men "in time of war” by the Act 26th April, 1898 ( 30 id., 364).
    II. Officers on the retired list are a part of the Army. They may be -assigned to duty, and wear uniform and continue to be borne on the Army Register and are subject to trial by court-martial. Enlisted men after retirement are not a part of the Army.
    
      III. An enlisted man after retirement is not entitled to the additional pay for length of service given by Revised Statutes, § 1284, for reenlistment. He does not “remain continuously in the Army” within the intent of the statute, which was “An act to encourage enlistments.”
    
    
      The Reporteri statement of tbe case:
    The following are the facts of the case as found by the court:
    I. The claimant, an enlisted man in the Army of the United States, being a first sergeant of artillery, was, on the 10th day of March, 1896, on application to the President, placed on the retired list under the provisions of the act of Congress approved September 30, 1890 (26 Stat. L., 501; 1 Supp. R. S., 810).
    II. At the time of his retirement, his pay, including the, several longevity increases allowed him under the provisions of sections 1282 and 1281 of the Revised Statutes, was $32 a month. The last of such increases under section 1281 was made July 16, 1893.
    Since his retirement ho has been paid at the rate of T5 per cent of said $32 a month — that is, at the rate of $21 a month — and has also received the allowance of $9.50 a month made by the act of March 16, 1896, paragraph 3 (29 Stat. L., 60; 2 Supp. R. S., 153), being a total of $33.50 a month.
    He has not received the 20 per cent increase of pay allowed by section 6 of the act of A^pril 6, 1898, entitled “ An act for the better organization of the line of the Army of the United States” (30 Stat. L., 361; 2 Supp. R. S., Y16, pp. 8, 12-15). He has also not received any increase of $1 a month to lii.s pay under section 1281 of the Revised Statutes since his retirement.
    III. The following general order was issued by the War Department upon its date:
    “GeNeralOrders, 1 “Headquarters of the Army, >• “Adjutant-General’s Office, “No. 55. ) “ Washington, May 6, 1885.
    
    “The following regulations concerning enlisted men to bo retired from active service under provisions of the act of Congress approved February 11, 1885, having been approved bj-the Secretary of War, are published for the information and guidance of all concerned:
    
      “I. Service in the armies of the United States and in the Marine Corps will be combined in making up the period of thirty years contemplated by the act hereinbefore mentioned. Enlisted men upon the retired list are additional to the number otherwise provided for by law.
    “II. After approval of an enlisted man’s application for retirement, an order will be issued from the Adjutant-General’s Office transferring him to the retired list. Upon receipt of such order by his immediate commanding officer, final statements will be prepared closing accounts of pay, allowances, and deposits to date of order for retirement. No discharge will be given, however, and the soldier will be regarded as continuing in service upon the retired list, but will be dropped from the rolls of his former, command. A descriptive list (in duplicate), with fact of final statements being furnished noted thereon, together with the retired soldier’s post-office address for the next thirty days, will be immediately forwarded through the official channels to the Adjutant-General of the Army. Retired soldiers are entitled to the usual travel allowances to the place of enlistment.
    “III. On the last day of each calendar month retired enlisted men will report to the Adjutant-General of the Army their post-office address, and will promptly report any change therein. Blank forms for personal reports and pay accounts, with official penalty envelopes for transmitting them, will be furnished retired enlisted men by the Adjutant-General of the Army.
    “ IV. The authorized pay and allowances of retired enlisted men will be paid them monthly by the Pay Department. Their pay will be three-fourths of the monthly pay allowed by law to them in the grade they held when retired. In paying retired enlisted men, no deduction will be made either of the usual one dollar per month “retained pay” or of the monthly tax of twelve and a half cents for support of the Soldiers’ Home. Service on the retired list does not entitle the enlisted man to anj^ increase of reenlisted pay beyond what had accrued at date of retirement, nor is he entitled to any commutation for fuel or quarters. Commutation for allowances of clothing and subsistence will be paid as follows:
    
      uFor subsistence. — Three-fourths of the allowance per ration (twenty-five cents) to men on furlough.
    “Sergeants and corporals of ordnance being entitled bylaw to a ration and a half, their daity commutation of subsistence when retired will be twenty-eight and one-eigbth cents. All other retired enlisted men will receive commutation of subsistence at the rate of eighteen and three-fourths cents daily.
    
      
      '■'■For clothing. — Three-fourths of the average annual clothing allowance precribed in order for na enlistment of five years. Until further orders, the following annual allowance for commutation of clothing of retired enlisted men will govern:
    
      Annual allowance, for clothing of enlisted men, retired.
    
    Post quartermaster and ordnance sergeants. $31. 48
    Hospital stewards. 31. 04
    Commissary-sergeants.-. 31.42
    Ordnance:
    Corporals. 29. 62
    Privates. 28.47
    Engineers:
    Sergeant-majors. 33. 29
    Quartermaster-sergeants. 32. 96
    Color-sergeants. 32.58
    Sergeants. 32.13
    Corporals. 31.53
    Musicians. 31. 70
    Privates. 29.45
    Cavalry:
    Sergeant-majors. 33. 45
    Quartermaster-sergeants . 33.34
    Chief trumpeters.- 33. 78
    Saddler sergeants. 33. 34
    Color and first sergeants. 32. 96
    Sergeants. 32. 30
    Corporals. 31. 59
    Trumpeters. 31.15
    Artificers and privates. 30. 27
    Light artillery:
    First sergeants.. 33.29
    Sergeants. 32. 68
    Corporals. 31. 97
    Musicians. 31. 48
    Artificers and privates .. 30. 60
    Artillery and infantry:
    Sergeant-majors. 31.70
    Quartermaster-sergeants. 31.59
    Principal musicians. 31.64
    Color and first sergeants. 31. 20
    Sergeants. 30. 44
    Corporals. 29. 78
    Musicians. 29. 29
    Artificers and privates. 28.47
    Signal Corps:
    Sergeants... 32.96
    Corporals. 32.30
    Privates, first class. 30. 99
    Privates, second class. 30. 55
    “Allowance of clothing to chief musicians same as to quatermaster-sergants.
    “Sergeants of ordnance have no clothing allowance.
    " V. The Adjustant- General of the Army will furnish eachenlisted man on the retired list with a descriptive list, which he will forward' at the end of each calendar month, with pay accounts, signed in duplicate, to the paymaster designated by the chief paymaster of the department in which the man resides, by whom payments will.be noted thereupon. If the soldier can not write, his “mark” should be witnessed by a commissioned officer, if practicable; otherwise, by some well-known person, preferably the postmaster of his place of. residence.
    ‘ ‘ VI. The Pay Department will be reimbursed by the Subsistence Department for all amounts expended in paying commutation of rations under this order.
    “By command of Lieutenant-General Sheridan:
    “R. 0. Drum,
    “ Adjutant- General.'-''
    
    Subsequent to the date of this order it was decided that 1 accents a month should be deducted from the pay of enlisted men on the retired list for the support of the Soldiers’ Home,' under the provisions of section 4819 of the Revised Statutes, and such deductions are now made.
    The Comptroller of the Treasury, on the 2d of September, 1899, decided that the provision of the act of April 26, 1898, that “in time of war the pay proper of enlisted men shall be increased 20 per centum” applies only to the pay proper of enlisted men in the Army-on the active list, and enlisted men on the retired list were not entitled to such increase (6 Comp. Dec., 182).
    He also decided, April 11, 1902, as follows:
    ■ ‘ Treasury DepartmeNT,
    “Office of Comptroller of the Treasury,
    ‘ ‘ Washington, April 11, 190%.
    
    “ Lieutenant-Colonel G. W. Baird,
    “ Chief Disbursing Officer, Pay Department.
    
    “ (Through Adjutant-General U. S. A.)
    “Sir: I am in receipt, by reference of the Assistant Secretary of War, of your communication of the 24th ultimo, as follows:
    “ ‘ I have the honor to state that I am charged with the payment of a large number of retired enlisted men. Written and oral inquiry has been made by some of them and on behalf of others as to whether they are entitled to increase of service pay subsequent to date of retirement.
    “‘In section 1284 of the Revised Statutes it is provided that an enlisted man should be entitled “to receive * * * for each successive period of five years of service, so long as he shall remain continuously in the Army, a further sum of $1 per month.”
    “ ‘ Retired enlisted men are not discharged from the Army, as shown by the fact that at date of retirement the}1- do not receive the travel pay of discharged soldiers. A further proof of their being considered as still in the service is furnished by the fact that 12&c. per month is deducted from the pay of each of them on account of the Soldiers’ Home.
    ‘“I have therefore to request that a decision be furnished of the question hereby submitted, as to the right of retired soldiers to increase of service pay subsequent to date of f ctil'GIXIGllt. ^
    “The act of February 14,1885 (23 Stat. L., 305), which created the retired list for enlisted men of the Army provides—
    “‘That when an enlisted man has served as such thirty years in the United States Army or Marine Corps, either as a private or as a noncommissioned officer, or both, he shall, by making application to the President, be placed on the retired list hereby created, with the rank held by him at the date of retirement; and he shall thereafter receive seventy-five per centum of the pay and allowances of the rank upon which he was retired.’
    “Section 1284, Revised Statutes, which provides for continuous service pay, is as follows:
    “‘Every soldier who, having been honorably discharged, reenlists within one month thereafter, shall be further entitled, after five years’ service, including his first enlistment, to receive, for the period of five years next thereafter, two dollars per month in addition to the ordinary pay of his grade; and for each successive period of five years of service, so. long as he shall remain continuously in the Army, a further sum of one dollar per month. The past continuous service of soldiers now in the Army shall be taken into account, and shall entitle such soldier to additional pay according to this rule; but services rendered prior to August fourth, eighteen hundred and fifty-four, shall in no case be accounted as more than one enlistment.’
    “The time within which a soldier might reeenlist was extended to three months by section 3 of the act of August 1, 1894. (28 Stat. L., 216.)
    “The right of a soldier to additional pay for length of service does not depend merely upon length of service, but upon two other conditions: First, an honorable discharge; and, second, a voluntary reenlistment.
    “The increase can be allowed only for services rendered after reenlistment, and the same thing is true of all subsequent reenlistments. The primary object of the law is to induce the prompt reenlistment of an honorably discharged soldier. (1 Comp. Dec., 459; Dig. 2d Comp/ Dec., vol. 3, par. 967; Webb v. O. 8., 23 C. Cls. R., 58; MS. Dec., vol. 15, p. 141.)
    “It is perfectly manifest that an enlisted man on the retired list can not comply with section 1248, Revised Statutes {sitara), so as to become entitled to a greater increase of pay for continuous service than that which he has earned and is receiving at the date of his retirement.
    “The Judge-Advocate-General, U. S. A., held in 1888 as follows:
    “ ‘ 2218. An enlisted man on the retired list is subject to trial by court-martial and to dishonorable discharge by sentence if such be adjudged. But the existing law, in entitling him to be retired if he complies with its conditions, evidently contemplates that he shall remain a pensioner on the bounty of the Government during the remainder of his life, if not forfeiting his claim by serious misconduct. So, held, that retired enlisted men couid not legally be discharged by Executive order under the 4th article of war, which contemplates soldiers on the active list only. (LV, 305, January, 1888). ’
    “In view of what is said above, it is deemed unnecessary to discuss further the provision of the act of February 14, 1885-{supra), that ‘he shall receive thereafter seventy-five per centum of the pajr and allowances of the rank upon which he was retired. ’
    “I am of the opinion that enlisted men on the retired list are not entitled to any increase of pay by reason of continuous-service subsequent to date of retirement.
    “Respectfully, yours,
    “L. P. Mitchell,
    
      “Assistant Com,p1/roiler.”
    The enlisted men on the active list of the Army received the increase of 20 per cent provided by the act of April 26, 1898, from April 21, 1898, to May 26, 1900.
    The practice of the War Department is as shown in the following indorsement of the Judge-Advocate-General of the Army on a call from this court:
    “War Department,
    “Judge-Advocate-General’s Opeice, .
    “ Washington, D. O., July 1, 190%.
    
    “Respectfully returned to the Secretary of War, inclosing copy of an opinion of this office dated December 1, 1898, in regard to the date of commencement of the Spanish-American war (5424, J. A. G. O.), and copies of opinions of this office dated October 30, 1899 (7230, id.), May 3, 1900 (8197, id.), April 11, 1900 (7866, id.), April 17, 1901 (10252, id.), July 19, 1901 (10881, id.), February 4, 1902 (12011, id.), to the effect that the Spanish-American war terminated on the date of the exchange of ratifications of the treaty of peace with Spain (i e., April 11, 1899), but that war existed thereafter within the meaning of the Articles of War, and other statutes and regulations in question, in the Philippine Islands. These copies are prepared for authentication under the seal of the Department.
    “The opinion of April 11, 1900, was expressly concurred in by the Assistant Secretary of War, May 1, 1900, and was acted on in issuing General Orders, No. 71, Adjutant-General’s Office, May 31, 1900 (copjr inclosed).
    “In the matters of extra-duty pay, pay for increased command in time of war, the jurisdiction of courts-martial over offenses described in the 58th article of war, the organization of divisions and separate brigades and the convening of courts-martial bj7 the commanding officers of these organizations, the convening of military commissions, etc., the War Department has acted on the understanding that war existed in the Philippine Islands since the close of the Spanish-American Avar. In each case the fact that Avar existed has been determined Ija7 the Secretaiy of War or b.y an officer who had jurisdiction, for the matter in question, to decide the fact. The insurrection began in the Philippine Islands prior to the termination of the Avar with Spain, and, for the purposes stated, is regarded by the Executive Department to be still in existence. In fact, the Philippine Islands are still goArerned, as being in military occupation of the United States, by the President as commander of the land and naval forces.
    ‘ ‘ It is i ecommended that this paper be returned to the Court of Claims Avith accompanying papers.
    “Geo. B. Davis,
    ‘ ‘ J udeje- Ad/oocate- Q enend. ”
    
      Mr. George A. King for the claimant.
    
      Mr. Assistant Attorney- General Pradt for the defendants.
   Peelle, J.,

delivered the opinion of the court:

The claimant, an enlisted man of the United States Army, after thirtj7 .years’ service Avas retired March 16, 1896, under the provisions of the act of February 14, 1885 (23 Stat. L., 305), as amended by the act of September 30, 1890 (26 Stat. L., 504), which latter act, so far as applicable to the present case, reads:

“That when an enlisted man has served as such thirty years in the United States Army or Marine Corps, either as private or noncommissioned officer, or both, he shall, by making' application to the President, be placed on the retired list ■ hereby created, with the rank held by him at the date of retirement; and he shall thereafter receive seventy-five per centum of the pay and allowances of the rank upon which he was retired.” * * *

At the time of the claimant’s retirement he was receiving-s' per month, and after his retirement he was allowed 75 per cent of that sum, or $24, and in addition thereto he was allowed, under the act of March 16,1896, paragraph 3 (2 Sup. Rev. Stat., 453), $9.50 per month “in lieu of the allowance for subsistence and clothing.”

Two questions of law arise on the findings of fact. First: Is an enlisted man on the retired list of the Army entitled to the increase of 20 per cent provided for by section 6 of the act of April 26, 1898 (2 Sup. Rev. Stat., 746), which reads:

‘£ Sec. 6. That in time of war the pay proper of enlisted men shall be increased 20 per centum over and above the rates of pay as fixed by law; provided that in war time no additional increased compensation shall be allowed to soldiers performing what is known as extra or special duty. x * * ”

As throwing light on the construction of that language, contended for by the claimant, reference is made to the case of United States v. Tyler (105 U. S., 244-246), affirming the judgment of this court (16 C. Cls. R., 223), where it was held that Revised Statutes, sections 1262, 1263, allowing longevity pay to commissioned officers of the Army, applied to officers on the retired list, on the ground that Revised Statutes, section 1094, in express terms declares that “the officers of the Army on the retired list” are a part of the Army, and as such are, by Revised Statutes, section 1256, “entitled to wear the uniform of the rank on which they may be retired. They shall continue to be borne on the Army Register, and shall be subject to the rules and articles of war, and to trial }yy general court-martial for any breach thereof.”

Furthermore, by Revised Statutes, sections 1259 and 1260, it is provided, in substance, that a retired officer of the Army nay be assigned to duty at the Soldier’s Home, with the approval of the Secretary of War, but to no other duty, except that upon his own application he may be detailed to serve as a professor in any college, no additional pay, however, being- allowed to such officer therefor.

Later, by the act of March 2, 1899.(30 Stat. L., 979), entitled “An act for increasing the efficienc3r of the Army of the United States, and for other purposes,” the language of the second proviso to section 7 of that act is:

“That in time of war retired officers of the Army may, in the discretion of the President, be employed on actNe military duty, other than in the command of troops, and when so employed they shall receive the full pay and allowances of their grade.”

That act is a recognition by the Congress that though the retired officers of the Army are in express terms declared to be a part of the Army, they were not theretofore subject to active military duty. Furthermore, it will be noted that the right to “receive the full pay and allowances of their grade” is conditioned upon being “ employed in active military duty.” Hence, if we were to concede that enlisted men on the retired list still continue- a part of the Army, that act would be persuasive in determining the rights of the claimant under the prior act of April 26, 1898, upon which he bases his right to recover, especially when considered in connection with the proviso set forth to the latter act prohibiting in time of war increased compensation £ ‘ to soldiers performing what is known as extra or special duty. ” The Congress would hardly have placed that inhibition upon soldiers performing active service if they had intended by the act to pay enlisted men on the retired list 20 per cent additional pay for performing no service whatever.

There are no such laws with reference to enlisted men on the retired list.' There is no statute declaring them to be part of the Arary, nor is there airy statute subjecting them to military duty. Furthermore, it should be borne in mind that officers of the Army are (with the advice and consent of the Senate) appointed during the pleasure of the President (Keyes v. United States, 109 U. S., 336; McElrath v. United States, 102 U. S., 426; Blake v. United States, 103 U. S., 227, and United States v. Corson, 114 U. S., 619), while a private soldier is by law enlisted for a definite term, and when he has served faithfully he is entitled at the end of each term of enlistment to a discharge as of right; and after thirty years’ service, if he so elects, he may be retired by the President, in which case he therebjr severs his connection with the Army to go on the retired list for the purpose of receiving “the 75 per cent of the pajr and allowances of the rank upon which he was retired. ” He can not thereafter be said to be a component part of the Army.

The question turns on the construction of the language ‘ ‘ that in time of war the pay proper of enlisted men shall be increased 20 per cent over and above the rates of pay as fixed by law.” The act of which that language forms a part is entitled “An act for the better organization of the line of the Army of the United States.” The act, after defining what shall constitute the peace organization of infantay regiments, provides, in substance, that in case of war the President may in his discretion increase the infantry force by establishing a third battalion for each regiment. The act establishes the strength of a company, troop, and battery, in the discretion of the President, to 106 men, including noncommissioned officers, and also makes provision for a call by the President for volunteers or militia of the several States, defining the strength of such organization, providing for increased pay to enlisted men in time of war, and providing that at the end of any war in which the United States may become involved the Army shall be reduced to a peace basis.

The day preceding the passage of that act (30 Stat. L., 364) the Congress not only declared war to exist, but declared that war had existed since the 21st day of April, 1898, between the United States and the Kingdom of Spain, so that the act of April 26 (supra) was clearly a war measure. In fact, section 6 of that act, upon which the claimant bases his fight to recover the 20 per cent increase, depends upon the existence of war.

When that act was passed the claimant was on the retired list, receiving not the ‘‘ pajr proper of an enlisted man,” but “75 per cent of the pay and allowances of the rank upon which he was retired,” plus his allowance in lieu of subsistence and clothing, which latter is given him in express terms by the act of March 16,1898 (supra). The act giving the increase in no way refers to men on the retired list otherwise than bjr the use of the term “pay proper of enlisted men.” Those words we hold are not sufficient to embrace enlisted men on the retired list whose connection with the Army ceases upon their retirement, i. e., they retire from and not into the Army.

It is obvious that the Congress did not intend to include them in the act, nor will the language bear that construction. But assuming the question to be one of doubt, we have but to look to the history of the time and the reason and purpose of the act to enable us to solve that doubt. War had been declared to exist against the Kingdom of Spain; the Army was being increased to repel invasion and to prosecute the war. The purpose of the act was to encourage and seeurc men willing to engage in that conflict, and to that end it was provided “that in time of war the pay proper of enlisted men shall be increased,” etc. How, then, can it bo seriouslj' contended that men on the retired list, who had no duties to perform at home or abroad and whose services were not contemplated by the act or otherwise authorized by law, are entitled to such increase?

It is no answer to saj7 that enlisted men on the retired list of the Army are a part of the Army because subject to court-martial, for if that were true, which we do not concede, the claimant was not assigned to any duty. His status was not changed. He performed no dutj., and in our view of the case was not subject to assignment to military duty without his consent. His retired pay is given him, not for services to )>o rendered in the future, but for services which he had faithfully rendered prior to his retirement. If he had been subject to such military duty and had been assigned thereto his right to increased pay would stand on the same footing as other enlisted men, as he would then have been restored to the “pay proper of enlisted men.” But he remained on the retired list with no military duties to perform during the period of the war.

In the construction of a statute the court must attribute to the Congress an intelligent purpose from the language they use; and when such language is in doubt the histoiy of the time and the reason of the statute may well be inquired into. This does not mean that thecourt may disregard the language, or legislate in respect thereto, but that the court majr consider those elements to ascertain the purpose for which the language was used.

"bested by these rules the claimant, who rendered no military service whatever in that conflict, whose services were not contemplated, and whose status in respect to the Army was not thereby changed, is not entitled to recover the increased pay provided for by the act.

Second. The claimant further contends that he is entitled to the additional pay for length of service under Revised Statutes, section 1284, which reads:

“Sec. 1284. Every soldier who, having been honorably discharged, reenlists within one month thereafter, shall be further .entitled, after five years’ service, including his first reenlistment, to receive, for the period of five years next thereafter, two dollars per month in addition to the ordinary pay of his grade; and for each successive period of five years of service, so long as he shall remain continuously, in the Ármy, a further sum of one dollar per month. The past continuous service of soldiers now in the Army shall be taken into account and shall entitle such soldier to additional pay according to this rule; but services rendered prior to August fourth, eighteen hundred and fifty-four, shall in no case be accounted as more than one enlistment.

That section was originally section 2, act of August 4, 1854 (10 Stat. L., 575), entitled “An act to increase the pa}^ of the rank and file of the Army and to encourage enlistments.” And the language of the section will bear no other construction. To entitle a soldier to the additional pay therein provided for, two things are essential: First, he must have been honorably discharged from the service, and, second, he must have reenlisted within one month thereafter. Length of service, therefore, is not of itself sufficient to entitle the claimant to the additional pay under the statute, and this was the holding of this court in the case of Webb (23 C. Cls. R., 58-60), where the court, in respect of the claim of an enlisted man in the Marine Corps, whose pay is by Revised Statutes, section 1612, assimilated to army pay and bounty, held that the additional pay provided for by section 1284 “does not depend upon mere length of service, but upon two other conditions: First, an honorable discharge; second, a voluntary reenlistment. It is intended primarily to be an inducement to the prompt reenlistment of an honorably discharged soldier, and it can be earned in no other way.”

By General Orders, No. 55, Headquarters of the Army, Adjutant-General’s Office, May 6, 1885, issued by command of Lieutenant-General Sheridan, less than three months after, the passage of the act permitting enlisted men to be retired after thirty years’ service, it is among other things provided by paragraph 4 of that order that ‘ ‘ service on the retired list does not entitle the enlisted man to any increase of reenlisted pay beyond what had accrued at date of retirement, nor is he entitled to any commutation for fuel or quarters. * * * ”

And such we understand has been the ruling of the accounting officers of the Treasury Department since the passage of the act. In the case of Beirne Flamer, decided in 1895 (1st Comp. Dec., Bowler, 459, 463), where an enlisted man in the Army sought additional pay for ten years’ service, it was held that the increase could only be allowed for service after a second reenlistment and that “the same principle applies to subsequent enlistments. ”

The Congress have never recognized enlisted men on the retired list for the purpose of giving them the additional pay provided for by section 1284. That act, be it remembered, was passed thirty years before the act of 1885, permitting enlisted men to be retired after thirty years’ service, and there is nothing therein saving to enlisted men on the retired list the continued benefit of the act. The act, as its title indicates, was to “encourage enlistments” by giving additional pay, conditioned upon an honorable discharge and a reenlistment.

Keeping in view the purpose of the act, as well as the act permitting an enlisted man, after thirty years’ service, to be retired on “seventy-five per centum of the pay and allowances of the rank upon which he was retired,” there is no rule'of construction which would justify the court in holding that upon retirement the claimant remained “continuously in the Army.” He could only remain “continuously in the Army ” in the manner set forth in the section, that is to say, by reenlistment within one month after “having been honorably discharged.” That the claimant did not do.

The Congress, in making appropriations for the support of the Army, have specified the sums appropriated for each object. That is to say, in addition to the appropriations (separately made) for the pay proper of the officers and enlisted men, there follows a specified amount designated in the acts as “additional pay to officers for length of service,” and in like manner to enlisted men for length of service.

Since the act of 1885 separate appropriations have been made for enlisted men on the retired list, but no appropriations have been made to them for length of service. (21 Stat. L., 346; 23 Stat. L., 305, 357, and 24 Stat. L., 93, and like appropriations to the present time.)

The Congress not having recognized enlisted men on the retired list as being entitled to the additional pay for length of service, and that having been the ruling of the executive departments having to do with the act, which accords with our view of the law, we must hold that the claimant. is not entitled to the additional pay provided for by section 1284.

The petition -is dismissed.  