
    HARRY A. CLARK v. THE UNITED STATES. EDWARD G. PIERSON v. THE SAME.
    [Nos. 22397, 22538.
    Decided December 2, 1901.]
    
      On the Proofs.
    
    The only question in these cases is whether the Act 12th January, 1899, “ Granting extra pay to officers and enlisted men of United States volunteers” extends to volunteers subsequently enlisted or whether it should be restricted to those previously enlisted lor service in the war with Spain.
    I.The Act 12th January, 1899 (30 Stat. L., 784), which provides “ That in lieu of granting leaves of absence or furloughs ’ ’ “prior to muster out of service, all officers and enlisted men belonging to volunteer organizations hereafter mustered out of the service who have served honestly and faithfully beyond the limits of the United Slates shall be paid tiro months’ extra pay on muster oxd and discharge,” is prospective and extends to those subsequently enlisted under the Act 2d March, 1899. (Ib., 979.)
    II.In cases of doubtful construction it is safe guidance for a court to look into the conditions surrounding the subject-matter of the legislation at the time the act was passed; but if the words einployed are unambiguous and not made doubtful 1 >y the subj ect-matter to which they are to be applied, courts must give full effect to the language used.
    III.A soldier, discharged before the muster out of his regiment, is not entitled to the two months’ extra pay given by the statute.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Harry A. Clark, was enlisted in the military service of the United States as a private in Company L of the Thirtieth Regiment of United States Infantry Volunteers on July 17, 1899, said regiment being organized and mustered into the service for two years, as provided by the act of March 2, 1899.
    As a member of that organization claimant served honestly and faithfully beyond the limits of the United States and was honorably discharged from the service October 16, 1900.
    II. While serving in the Philippine Islands he was, May 2, 1900, sent to hospital there on account of disabilities incurred in line of duty. On account of such disabilities he was returned to the United States. The order relating- to him is as follows:
    “Special Orders, 1 Headquarters
    >• DIVISION OF THE PHILIPPINES,
    “No. 116. ) Manila, P. I., August 17, 1900.
    
    * * * ■ * * * *
    “7. Upon recommendation of the chief surgeon of the division, the following-named enlisted men. sick in the hospitals designated, will be sent, accompanied by descriptive list and transfer slip in each case, by the transport Grant on the next voyage of that vessel to San Francisco, California, where, upon arrival, they will be reported to the commanding general, Department of California, for admission to hospital in that department for treatment:
    “Santa Mesa Hospital: Sergeant William Still, Corporal Michael H. McCord, and Privates William P. Dority, Richard JR.. Jackson, and Edward Moore, Company A; Edward Power, Company B; George W.McGill, Company C; Joseph B.Koons, Company K; Sergeant Oscar C. Smith and Privates Harry A. Clark and George P. Ramsey, Company L; Daniel S. Cottin, August Ehlert, Charles W. Manning, and Gerald W. Pitcher, Company M, 30th Infantry, U. S. V olunteers.
    “ On the day preceding the sailing of the transport the commanding officers of the hospitals in which the above-named sick men are located will turn them over to the commanding officer of the transport, with required descriptive lists and transfer slips.
    “ The Quartermaster's Department will furnish the necessary transportation, and the Subsistence Department will arrange for their subsistence while en route.
    “By command of Major-General Mac Arthur:
    “M. Barber,
    
      “Assistant Adjutant- General.”
    On arrival, September 22, 1900, he was sent again to hospital at San Francisco, where he remained until October 12, 1900, when he was returned to duty. On October 16, 1900, he was honorably discharged. His discharge was stated to be on account of “his services being no longer required,” in accordance with the following orders of the War Department:
    
      “War DEPARTMENT,
    “Adjutant-General’s Oeeice,
    “ Washington, September 8, Í900.
    
    “The Commanding General
    “Department oe California,
    
      “San Francisco, Cal.
    
    “Sir: Referring to telegram of the 6th instant on the subject of discharge of volunteers in your department, I have the honor to inform you that the Acting Secretary of War has directed that all volunteer soldiers under treatment in general army hospitals who are able to travel be discharged, their services being no longer required, and that the commanding officers of hospitals will forward to your department all descriptive lists of such discharged soldiers, with notation relating to the discharges, to be listed and filed at your headquarters pending the arrival of volunteer regiments for discharge, ivhen they will be turned over to the respective regimental commanders, whose receipts therefor, by names and organizations of soldiers, will be obtained and forwarded to this office.
    “Very respectfully, H. C. Corbin,
    
      “Adjutant- General.”
    [Copy oX telegram.]
    “September 6, 1900.
    “Commanding General Department California,
    “ San Francisco, Cal.:
    
    “ Replying your telegram yesterday, Secretary War directs that all the volunteers in your department who are able to •travel with comfort and safety as to health be discharged, their services being no longer required. It is very desirable that these men be paid, et cetera, and encouraged to return directly to their homes. Every assistance that can be given them to this end by the department should be done.
    “(Signed) TI. C. Corbin,
    ‘£ Adj utant- General. ”
    III. Claimant has been paid no extra pay, as provided in the act of January 12, 1899, or amendments thereto.
    
      Messrs. George A. and William B. King for the claimants:
    The question is, Do the words of the act, “officers and enlisted men belonging to companies and regiments of United States Volunteers,” refer to volunteers in .service at the time of the passage of the act, or do they also include all volunteers, even though they have come into the service of the United States subsequently ?
    A very strong case in favor of the view of the continuous application of the act of January 12, 1899, to all volunteers, whether they were in the service at the time of its passage or came in afterwards, is the recent noted case of De Lima v. Bid-well (182 U. S., 1), one of the insular tariff cases. In that case the question was whether the word “foreign,” as used in the enacting clause of the tariff act of 1897 (2 Supp. Rev. Stat., 642), imposing certain duties “upon all articles imported from foreign countries,” applies to countries which though foreign at the time of the passage of that act subsequently ceased to be such. It was held by the Supreme Court that the word “foreign” means countries which may at any time be foreign, and that when a country foreign at the time of the passage of the act ceases to be foreign and becomes domestic, the act from that moment ceases to apply to it: while, on the other hand, if any particular territory now domestic should afterwards become foreign, the act would apply to it.
    Eveiy reason which applied in that case for the continuing-force of the statute applies more strongly to the present case. At the time of the passage of the tariff act of 1897 Porto Rico was a foreign country, and there was eveiy reason to believe that it would remain so, yet as soon as its status in that respect was changed, the law followed that change.
    • In the present case the law speaks of “ United States volunteers.” It is true that the law under which the present claimants were mustered into the service of the United States had not been full}' enacted at the date of the passage of the act of January 12, but it was under consideration. Congress knew perfectly well when it passed the act of January 12, 1899, that thoTe would in a short time be volunteers in the service of the United States on duty in the Philippine Islands. Under these circumstances it -would be mere affectation to suppose that merely because the act of January 12 happened to reach the final stage of enactment a few weeks before that of March 2, under which the volunteers now under consideration entered the service of the United States, Congress did not have them in mind. It undoubtedly had them under consideration.
    The case of Cleary v. United States (35 C. Cls. R., 207), cited in behalf of the United State, is an authority in favor of the claimant. The case arose not under the act of January 12, 1899, but under that of March 3, 1899 (par. 4, 2 Supp. Rev. Stat., 1002), for the benefit of the Navy.
    The claimants in the two oases before the court, to apply the language of the Cleary ease, were not “soldiers by profession irrespective of the national exigency. ” They belonged to the other class defined in that case — “those who left their ordinaiy avocations at the outbreak of or during the continuance of hostilities and enlisted with the expectation of serving only so long as the exigency continued.” According to that decision, “to this latter class Congress have always and repeatedly given this same gratuity of two months’ additional pay,” etc. Counsel for the United States asserts that the case of the present volunteers constitutes an exception to the historic generalization that “ Congress have always and repeatedly given this same gratuity,” while we assert that Congress did give it by the general terms of the act of January 12,1899, and for that reason alone failed to pass a special act for the relief of these particular organizations.
    It should be a subject of great regret that these men have already been sent home without obtaining the benefits of this extra pay to enable them to resume the pursuits of civil life. The failure of the officers of the Treasury Department to carry out in this respect the just and beneficent provisions which Congress thought it had made for all volunteers “ hereafter mustered out of the service” can not be too promptly or too fully repaired.
    
      Mr. Felix Brannigaa (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    Prior to the enactment of section 1 of the act of January 12, 1899, there was no law that allowed extra pay to enlisted men of the Volunteer Army of the United States upon the muster out of the military organizations in which they had served. Such a law had been enacted in favor of all officers and enlisted men who had been in actual service during the war with Mexico. (9 Stat. L., 248; 20 Stat. L., 316.) No extra pay was allowed the enlisted men who served in our armies during the war of the rebellion upon the muster out of the regiments or organizations in which they had served, although it was one of the greatest wars of modern times, and although the soldiers whose valor served the country from ruin were paid only in a greatly depreciated currency. Section 4 of the act of March 3, 1865 (13 Stat. L., 495, 497) did allow •£ three months’ pay proper” to the officers of volunteers then in commission, below the rank of brigadier-general, who continued in the military service to the close of the war, upon being mustered out of the service; but, as above stated, no extra pay was allowed to the enlisted men. Officers who had severed their connection with the Army before the muster out of the organizations to which they belonged were not within the grant. This is clear from the act of July 13, 1865, chapter 181 (14 Stat. L., 94), and the act of-July 3, 1884, chapter 147 (23 Stat. L., 66).
    It will thus be seen that the allowance of extra pay to soldiers at the end of a war, on the muster out of the military organizations to which they belonged, is not a “ fixed policy” of Congress.
    In this condition of the law, when hostilities in the war with Spain ceased, and the purpose for which the volunteer soldiers had been called into service had been accomplished, the Secretary of War issued General Orders, No. 124, of August 20, 1898, for their muster out and discharge from the military service of the United States; and nine days later he issued General Orders, JSfo. 130, which allowed leaves of absence for sixty da3's and furloughs for the same period” to all officers and enlisted men of the volunteer organizations which had served beyond the limits of the United States, and were ordered to be mustered out of the military service by said General Orders, No. 124, and thirty days to the officers and men of organizations which had not served beyond the limits of the United States and were likewise ordered to be mustered out of service.
    Obviously the right to the extra pay granted did not extend to the officers and soldiers of the volunteer organizations which had been mustered out of the service prior to January 12,. 1899, because they had already been rewarded by leaves of absence or furloughs; and it is just as clear that the right to the extra pay did not accrue until the time had arrived when the regiment or other military organization to which the volunteers belonged was to be mustered out of the service; and hence it accrued only to those officers and enlisted men who were at that time entitled to be mustered out with the regiment or company or military organization to which they belonged. Certainty this section can not he construed as extending to officers and soldiers who were dismissed or discharged the service by sentence of court-martial, or to deserters, or to those who had been discharged the service by favor, or as unfitted to remain in it — the latter a numerous class in .all armies in time of war. The reward was intended only for those officers and soldiers.whose good fortune it was to be able to serve their country honestly and faithfully in the war with Spain up to the time when the Government had no longer any need of the service of the regiment, companjr, or organization to which thejr belonged. Those who were killed in battle or who died in the service were not within the grant; hence Congress amended the said act of January 12, 1899, by authorizing payment to their “legal heirs or representatives.” {Act of March 3, 1899; 30 Stat. L., 1073.)
    Under any rule of construction adopted bjr the courts the act of January 12, 1899, when read with reference to the general orders granting furloughs and leaves of absence before muster out of the volunteer organizations, can not be regarded as general, xiermanent legislation. If its language is in any manner doubtful or ambiguous, resort may be had to the circumstances under which it was enacted and the defect •or mischief which it was intended to remedy. (Smith v. Townsend, 148 U. S., 490.) The act itself discloses that the legislative intent was to correct a mischief or defect in respect to the muster out of certain organizations of the volunteer .army then remaining in the service of the United States. That was the subject in the legislative mind, and the evil to be remedied was a matter of public notoriety and of grave •concern to the War Department.
    There can be no reasonable doubt that the act of January 12, 1899 (30 Stat. L., 784), was passed only in aid of the muster out of certain military organizations called into service by the act of April 22, 1898 (30 Stat. L., 361), which had composed a part of the Volunteer Army of the United States during- the Spanish war.
    Hostilities had ceased long before January 12, 1899 (30 Stat. L., 1142), the Volunteer Army of the Spanish war was no longer required, and many of the regiments had already been mustered out of the service before the act of that date was passed. If there could be any doubt as to the limitation of the act of January 12 to the remaining organizations of that army it would be removed, not only by the words of its first sentence, “That in lieu of granting leaves of absence and furloughs,” etc. — meaning in lieu of the grant in General Orders, No. 130 — but also from the following defects of the act:
    1. The grant did not extend to the soldiers of the Regular Army who had enlisted for the war with Spain, not as professional soldiers (Oleary v. The United States, 35 C. Cls. R., 207), but as volunteers for the war only. Certainty these soldiers were as much entitled to a reward of extra pay for honest and faithful service as those who had enlisted in the Volunteer Army. This defect was cured by the act of March 3, 1899, chapter 423 (30 Stat. L., 1073,1074), which extended the grant of extra pay to all such regulars when their term of service expired. They were entitled to be honorably discharged at the end of the war, and were discharged pursuant to General Orders, No. 40, Headquarters of the Army, dated May 10, 1898.
    When the act of March 3, 1899, was passed there remained to be mustered out of service a large number of the volunteer organizations called into service for the Spanish war, and a larger number had been mustered out prior to January 12, 1899. Many of the regulars who had enlisted for the war had also been discharged under the terms of their enlistment. (Adjutant-General’s Report for 1900.)
    These provisions are evidentty special legislation, enacted “in lieu of” the general orders of the War Department which granted leaves of absence and furloughs, and not general for all ‘ ‘ wars ” and £ ‘ exigencies. ” If the services of the volunteer organizations raised pursuant to section 12 of the act of March 2,1899, to meet a then “present exigency,” should be deemed worthy of similar reward, no doubt Congress will grant it, if the condition of the public Treasury permits.
    Furthermore, it is perfectly apparent that the grant of extra pay in the act of January 12, 1899, is confined to a special class of persons, and therefore it can not be extended by construction to any other persons. (Vane v. Newcomhe, 132 U. S., 220, 235.) That class was the volunteers of the Spanish war to whom furloughs or leaves of absence had not been given under General Orders, No. 130, and who remained in the service until the “muster out” of the regiments or other organizations in which thejr had served during that war.
   WeldoN, J.,

delivered the opinion of the court:

The case of Harry A. Clark, No. 22397, and the case of Edward G. Pierson, No. 22538, which are in many particulars similar, were argued and submitted at the same time and will be considered in one opinion.

In the case of Clark the findings show in substance that he enlisted in the military service of the United States as a private in the Thirtieth Regiment United'States Infantry Volunteers on the 18th day of July, 1899j and served faithfully as such beyond the limits of the United States, to wit, on the Pacific Ocean and in the Philippine Islands, and that ho was honorably discharged from such service on the 16th of October, 1900, without receiving a furlough. His regiment was not discharged until some time after that date. The regiment of which he was a member was organized under the act of March, 2, 1899 (12 Stat. L., 979), and he was mustered into the service as private under said act for the term of two years and four months, unless sooner discharged.

He presented no claim to the Treasury Department for the reason that it had been decided by the Comptroller that troops enlisted under the act of March 3, 1899, are not entitled to extra pay under the act of Januaiy 12,1899 (30 Stat. L., 784).

The case of Pierson, No. 22538, differs from the Clark case in this, to wit: That the regiment of which the claimant was a member was mustered out and discharged from the service of the United States.

Clark was discharged from the service personally, his regiment remaining in the service, while Pierson was discharged as the result of his regiment being mustered out of the service by the act of the United States.

The right to recover in both cases is based on the provisions of two statutes passed by Congress in the year 1899, the necessity of which grew out of the late war with Spain, the first having been enacted on the 12th day of January, 1899 (30 Stat. L., 784), and the second on March 2, 1899 (30 Stat. L., 979).

The act of January 12, 1899, applicable to this case, is as follows:

“AN ACT Granting extra pay to officers and enlisted men of United States Volunteers.
“That in lieu of granting leaves of absence and furloughs to officers and enlisted men belonging to companies and regiments of the United States Volunteers prior to muster out of the service, all officers and enlisted men belonging to volunteer organizations hereafter mustered out of the service who have served honestly and faithfully beyond the limits of the United States shall be paid two months’ extra pay on muster out and discharge from the service, and all officers and enlisted men belonging to organizations hereafter mustered out of the service who have served honestly and faithfully within the limits of the United States shall be paid one month’s extra paj^ on muster out and discharge from the service, from anjr money in the Treasury not otherwise appropriated.”

The portion of the statute of March 2, 1899 (swpra), which is material to be considered is as follows-

“That to meet the present exigencies of the military service the President is herein aixthorized to maintain the" Regular Army at a strength of not exceeding sixty-five thousand enlisted men, to be distributed amongst the several branches of the service, including the Signal Corps, according to the needs of each, and raise a force of not more than thirty-five thousand volunteers, to be recruited as he maj'- determine from the country at large, or from the localities where their services are needed, without restriction as to citizenship or educational qualificatioiis, and to organize the same into not more than twenty-seven regiments organized as are infantry regiments of war strength in the Regular Army, and three regiments to be composed of men of special qualifications in horsemanship and marksmanship, to be organized as cavalry, for service mouuted or dismounted.
u Provided further, That such increased regular and volunteer force shall continue in service only during the necessity therefor, and not later than July first, nineteen hundred and one.
“All enlistments for the volunteer force herein authorized shall be for the term of two years and four months, unless sooner discharged.”

It is contended on the part of the claimants, that the act of January 12, 1899, is prospective in its operation and determines the rights of officers and enlisted men mustered into the service of the United States under the provisions of the act of March 2,1899; while it is contended on the part of the defendants that the act of January 12, 1899, was intended to include officers and enlisted men who had been enlisted in the service of the United States prior to that time, and was not intended to confer any rights upon persons becoming a part of the military force after the date of its passage.

It is said by claimant, that there is no room for construction as to the meaning of the statutes; that they construe themselves; that inasmuch as a soldier belonged to a volunteer organization, that he served honestíy and faithfully beyond the limits of the United States, that he was discharged after January 12, 1899, therefore, because of these conditions and facts, the unambiguous words of the statute give him a right to compensation as provided by the act of January 12, 1899.

The right of the claimant Clark to the two months’ extra pay was not submitted to the Comptroller of the Treasury, and is not, therefore, embraced in the able opinion rendered by him in the construction of the act of January, 1899.

Without in this connection determining the question as to whether the act is prospective on the rights of those who become soldiers of the United States under the provisions of the act of March 2, 1899, it is sufficient for the purposes of the case of Clark to say that his claim does not come within the terms of the first statute.

It provides—

“ In lieu of granting leaves of absence and furloughs to the officers and enlisted men belonging to companies and regiments of the United States Volunteers, prior to the muster out of the service, all officers and enlisted men belonging to volunteer organizations thereafter mustered out of the service, who have served, * *' * shall be entitled to two months’ extra pay on muster out or discharge from the service.”

The claimant Clark was not, in military parlance, mustered out of the service of the United States, but personally discharged from such service, and as the act contemplates the muster out of the organization to which the soldier belongs* his case does not come within the statute. It intended by its terms to allow extra pay where the service of the soldier was to the termination of the life of the military organization of which he was a member; and when that organization had ceased to be a part of the Army by being mustered out, then the right attached to those who had performed military service to the date of the disorganization of the command. In order to give the officer or soldier the right, the organization must be mustered out and cease to be a part of the Army, and it does not accrue to a person having failed for anjr reason to discharge the full time and obligation to remain until the organization, by the conditions and necessities of the Army, is mustered out of the service.

The case of Pierson, No. 22538, presents a different condition and state of facts in the essential element that his regiment was mustered out of the service of the United States as an organization.

The claim which is made by both the claimants is of purely statutory obligation, and, in order to recover, the claim must come within the intent of the law as exemplified by the language of the law.

It is insisted upon the part of the defendants that the act of June 12, 1899, must be construed in the light of the circumstances existing at the time of its passage, and, applying-that rule of construction, it is maintained that the purpose of Congress was to give the right only to those who had up to that time or might thereafter be mustered out of the service-of the United States as troops raised under the-act of April 22, 1898, to prosecute the war then existing between the United States and the Kingdom of Spain. That it was not intended as a permanent military policy applicable to troops which might thereafter be raised to increase the regular or volunteer forces of the United States.

In cases of doubtful construction it is a safe guide to look into conditions surrounding the subject-matter of the legislation at the time the act was passed. As was said by the Supreme Court in the case of Platt v. Union Pacific R. R. Co. (99 U. S., 48):

“In endeavoring to ascertain what the Congress of 1862 intended, we must, as far as practicable, place ourselves in the light that Congress enjoyed, look at things as they appeared to it, and discover its purposes from the language used in connection with the attending circumstances.”

Without going into the detail of conditions, the terms of the statute recognize a custom or practice of granting leaves of absence to soldiers prior to being mustered out of the service, and adopted, in lieu of that custom or practice, the policy of paj'ing a money equivalent of the leave of absence, and thereby’ secure to the soldier the same bounty or favor received by him from the leave of absence. The object of the statute is to give a bounty, in imitation of the oft-repeated acts of the Government at the close of a war in granting gratuities after the service of the soldier has been rendered, in recognition of his patriotic service.

In cases of doubtful construction courts are permitted to consult the circumstances and conditions under which the law was enacted to ascertain the intent of the legislation. But if the words employed in the phraseology of the law are unambiguous and not made doubtful by the subject-matter to which they are to be applied, courts must give full expression to the language used, in the ascertainment of the intent of the lawmaking power.

Courts must appty the law, deducing its proper construction from its language where it is of obvious impoi't and is reasonably established by the language of the statute.

That fundamental i-ule of construction is most forcibly applied by the Supremo Court in the case of Dewey (178 U. S., 510), in which 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 depart front sound rules of construction as in effect to adjudge that to be law which Congress has not enacted as such. Here 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 Country v. Rollins, 130 U. S., 662, 670.)

This court said in the same case (35 C. Cls. R., 197):

‘ ‘ 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 the other branches of the Government are not incident to the judiciary. They have no policy and no authoritj7' save and except the declaration and application of the law as in their judgment it ma}7 seem to exist. Congress have passed 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 G overnment. 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 ly 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.”

The claimant, Pierson, applying the law as its words indicate the will of the legislature, has all of the qualifications enumer-rated by the act of January 12,1899. He was enlisted in the United States volunteer service; faithfully discharged his duties beyond the limits of the United States; was honorably discharged from the militaiy service on April 1, 1901, the discharge being the result of the mustering out of the regiment to which he belonged. Applying the law as determined by the rule of construction prescribed by the Supreme Court to those facts, it follows that he is entitled to recover under the prolusions of said act the sum of $31.20.

In the case of Clark (No. 22397) the petition is dismissed.  