
    EKDMAN’S CASE.
    Adolphus Erdman v. The United States.
    
      On the Proofs.
    
    
      An order of the War Department provides that officers of volunteers shall receive pay and subsistence xohen traveling from, the place of discharge to the place of enrollment. An officer mistered into the service at Saint Louis tenders Ms resignation in Neiv Orleans. Lie is honorably discharged on account of physical disability incurred in the line of his duty.
    
    Under the Act 16th March, 1802 (2 Stat. L., 137), and General Order No. 43, Wax Department, 1861, and the Act 6th August, 1861 (12 Stat. L., 326), am officer of volunteers discharged for physical disability incurred in the line of his duty was entitled to one day’s pay and subsistence for every twenty miles’ travel from the place of his discharge to the place of enrollment.
    
      The Reporters' statement of the case:
    The following facts were found by the court:
    I. On the 10th of July, 1861, there was issued from the War Department the following general order:
    [General Orders, No. 43.]
    “War Department,
    “Adjutant-General’s Oeeioe,
    “ Washington, July 10,1861.
    “Commissioned officers of volunteers received into the service of the United States for two and three years, or for the period of the war, will be entitled to receive one day’s pay and subsistence for every twenty miles’ travel from the place of enrollment to the place of muster into the service of the United States and from the place of his discharge to the place of enrollment; the distance to be estimated by the most direct mail route.
    “By order.
    “L. THOMAS,
    
      “Adjutant- General.”
    II. On the 14th of August, 1862, the claimant was, at Saint Louis Mo., mustered into the service of the United,States as second lieutenant Fifteenth Missouri Yolunteers, for a term exceeding three years; and on the 19th of May, 1863, he became first lieutenant of his regiment, and on the 5th of December, 1863, he became regimental quartermaster.
    III. On the 3d of October, 1865, at New Orleans, La., having-tendered his resignation, he was, by command of Maj. Gen. P. H. Sheridan; commanding the Military Division of the Gulf, discharged the military service, under and in virtue of the following order:
    “First Lieutenant and Begimental Quartermaster Adolphus Erdrnan, Fifteenth Missouri Yeteran Infantry, having tendered his resignation, is hereby honorably discharged the military service of the United States on account of physical disability, with condition that he shall receive no final payments until he has satisfied the Pay Department that he is not indebted to the Government.”
    IY. The physical disability referred to in said order was incurred by the claimant in the line of his duty.
    Y. At the time said order was made the claimant’s pay and the commuted value of his rations were $4 per day; and the distance from New Orleans to Saint Louis, by the most direct mail route, was 1,230 miles.
    
      Mr. James Lowndes for the claimant:
    The words “ discharged from the service” embrace every act by which an officer’s status is ended. These are the words used in the order in this case. To restrict these words to any particular Mud of discharge is to disregard their literal meaning and the use of them in the service. The words are so large, that Congress specified one exception, viz, discharge “ by way of punishment.”
    The rule of “inclusio unius, exelusio altermsf forbids a construction which finds any other exception. This present case does not rest on tbe general ground. Tbe evidence shows that tbe claimant’s discharge was by reason of disability arising from injury or sickness incurred in tbe line of duty. This fact brings tbe case within the opinion of tbe court in Price v. United States, 4 O. Cls B., 171.
    iffr. A. D. Robinson (with whom was tbe Assistant Attorney-General) for tbe defendants.
   Drake, Ch. J.,

dehvered tbe opinion of tbe court:

This case differs in only one point from Price’s Case (4 0. Cls. B., 164). In that case, as in this, tbe claimant was discharged on account of disability; but it did not appear there that bis disability was incurred in tbe hue of duty. That fact, however, is found in favor of tbe present claimant.

In that case tbe court intimated that if Price’s discharge bad been for disability so incurred, be would have been entitled to transportation or mileage from tbe place of discharge to that of bis muster into tbe service.

We are all of tbe opinion that tbe present claimant is so entitled under section 24 of tbe Act of March 16,1802, u fixing the military peace establishment of the United States ” (2 Stat. L., 137), and tbe above General Order No. 43 of tbe War Department, issued July 10,1861, approved and legalized by tbe Act of August 6, 1861 (12 Stat. L., 326).

Tbe judgment of tbe court is that tbe claimant recover two hundred and forty-six dollars.  