
    GEORGE LANDER v. THE UNITED STATES.
    [No. 18248.
    Decided April 22, 1895.]
    
      On the defendants1 Demurrer.
    
    A retired hospital steward seeks to recover commutation for fuel and quarters.
    I.Under the Aots 14th February, 1885 (23 Stat. L.), and 80th September, 1890 (26 id., p. 504) a, hospital steward after being retired is entitled to “ seventy-five per centum of the pay and allowances of the rank upon ivhich he was retired,” hut the term “allowances” does not include commutation for fnel and quarters.
    II.Where a series of statutes continue to provide that no part of the moneys appropriated shall he paid for commutation of fuel and quarters it is conclusive against a claim therefor.
    III. The intention of Congress must control in the construction of statutes. An express repeal is not the only way by which the intention to change existing laws may he manifested; and salaries may be reduced otherwise than by express enactment. The distinction between an omission to appropriate for a salary and a positive prohibition to pay it stated.
    IV. A hospital steward is in law an enlisted man. The room and fuel assigned to him by regulations are not a fixed allowance attached to the office, but are furnished only when necessary for the due performance of his duties.
    V.Clothing and subsistence, which every enlisted man is entitled to receive so long as he remains in the service, are really payment in kind; and the term “allowances” in the act 1885 was used to secure to the retired soldier three-fourths of his entire personal pay, including clothing and subsistence.
    
      The Reporters’ statement of tbe case:
    Tbe ease came before tbe court upon tbe defendant’s demurrer to tbe petition of tbe claimant.
    
      Mr. Felix Brannigan (witb wbom was Mr. Assistcmt Attorney - General Dodge) for tbe demurrer:
    Under tbe circumstances it sufficiently appears that commutation for quarters and fuel for enlisted men is not a right incident to tbeir rank, but only conditional and wholly without regard to rank.
    
      It accrues to enlisted men only when they are detailed for special service at tbe places mentioned in tbe general order, and then only by virtue of that order. Tbe private is allowed tbe same rate of commutation as tbe highest noncommissioned staff officer.
    If this general order is not a sufficient answer to tbe claim at bar we may well rely upon tbe law which prohibits in the most express terms any payment whatever to enlisted men of commutation for fuel and quarters.
    The act making appropriations for the support of the Army, approved June 30,1886 (24 Stat. L., 394, 399), contains the following provision: “And no part of any of the money so appropriated shall be paid for commutation of fuel and for quarters to officers or enlisted men.”
    This prohibition appears in each subsequent act making appropriations for the support of the Army, and commutation of quarters and fuel for commissioned officers is only preserved by special appropriations in these acts. The provision above quoted clearly indicates an intention on the part of Congress to repeal any regulation, order, or practice formerly existing under which such commutation was paid to enlisted men.
    The right to commutation for quarters and fuel is not a new question in this court. It has been judicially determined that when it exists it is merely a conditional one, and not an incident' to rank or pay. Bank merely measures the rate of commutation. (United States v. Phisterer, 94 U. S., 219.)
    The case at bar differs entirely in principle from the case of Langston v. The United States (21 C. Cls. 11., 10; 110 U. S., 389). Here neither statute, nor regulation, nor general order, nor even a practice, affords a foundation to the claim, whereas in Lang-ston’s Case the right to the compensation claimed was fixed by a statute which continued in full force, notwithstanding the failure of Congress to appropriate the full amount of the salary. In addition to this distinction, no statute prohibited payment of the residue of Langston’s salary, for which no appropriation had been made, while in every act making appropriations for the support of the Army passed since June 30,1886, we find this provision, to wit: “That no part of any moneys so appropriated shall be paid for commutation of fuel and for quarters to officers and enlisted men.”
    
      
      Mr. Jere M. Wilson opposed:
    The petitioner, when in active service, was a hospital steward, with which rank he was retired on the 23d day of October, 1889, in accordance with the Act of February 14,1885 (23 Stat. L., 305).
    The construction placed by the Court of Claims on the above act in the case of McKenna (22 C. Ols. R., 314) is expressed as follows:
    “ In the opinion of the court Congress intended to confer on the retired soldier the prescribed percentage of such allowances only as had been granted him in active service for his personal and exclusive use, and which, by law or valid regulation, had acquired a commutative money value, or is susceptible of accurate calculation.”
    Under this construction of the law the claimant is clearly entitled to the allowances claimed. The claimant, McKenna, when in active service was one of a company, the members of which shared quarters and fuel in common, and íd which no individual member had any exclusive right. Bach one was merely entitled to a certain space for his bed in the room that all occupied, and no one was entitled to any definite amount of fuel. The status of the claimant in active service was of an entirely different character. He belonged to a class that are known under the general designation of staff noncommissioned officers, the grade intermediate between the soldier of the line and the commissioned officer, and for whom, because of their rank, special provision is made in the matter of allowances.
    The report of the Quartermaster-General in this case shows that all soldiers of this class are entitled, when in active service, to the exclusive use of one room as quarters and to a definite monthly allowance of fuel, in accordance with paragraph 1098 of the Army Regulations, also the authority, and the only one, under which officers are granted quarters. This right is so fully recognized that when soldiers of this class are serving at garrisoned posts, and when such accommodations as are prescribed for them by regulations are not available, it is the practice to hire quarters outside until proper provision can be made for them at the post.
    The unbroken practice of the War Department since the organization of the noncommissioned staff, in accordance with aw and regulations, shows that these allowances have avalué as susceptible of accurate calculation as any other item of expenditure for the Army. If those allowances were not the personal right of this class they would be treated in this respect in the same manner as the soldiers of the recruiting party on duty in the city of Washington, who, according to the evidence submitted, are not individually entitled to these allowances, but are provided for in the same manner as at military posts; that is, they occupy quarters in common and are allowed only sufficient fuel to heat these quarters when that is necessary.
    In the report of the Quartermaster-General attention is invited to paragraph 1095 of the Army Eegulations, in which it is stated that fuel is public property and any portion of that issued not consumed shall be returned. It may possibly be urged that because of this provision there is no absolute personal right in such an allowance. The regulation is not properly susceptible of this interpretation in those cases in which a specific and limited amount is issued for the exclusive personal use of an individual, especially when such .individual could under no circumstances receive any greater quantity than the regulation allowance, even when this is insufficient for actual needs, as sometimes happens in the case of noncommissioned officers serving in rigorous climates. If such a construction were admissible, then by similar reasoning it could be shown that he has no personal right to rations and clothing. It Bright with equal justice be said that because an officer is not free to dispose of the house assigned to his use he has no right to quarters.
    Attention has also been called tc a clause in the act making-appropriation for the support of the Army, which prohibits the payment of commutation of fuel and quarters to officers and enlisted men from the money for barracks and quarters. This is merely a limitation as to the manner of settlement, and not a prohibition of these allowances. Before the above provision was made these soldiers received the money value of the allowances themselves, now the Government disburses it for them instead.
    The case of Langston, as cited, might, if necessary, be used to strengthen the position of the claimant. The. army regulation which prescribed the amount of allowances for the claimant in active service bears the same relation to this case that the statute which originally fixed the salary of the minister to Haiti did to the case of Langston.
    
      The statute remained in force during the years in which the appropriation bills reduced the- salary of the minister, and so has the army regulation (the analogous authority in this case) during the years in which provision for quarters and fuel has not been made for retired staff noncommissioned officers; and the failure to make this provision should not be allowed to operate to the detriment of the claimant any more than the corresponding failure did in the case of Langston.
    The case of Phisterer bears no relation to the one under consideration. The question to be determined in that case was, whether an officer awaiting orders at home could be considered as being at a military station or post. The real question at issue in this case is, whether the claimant, in active service, was entitled to quarters and fuel for his individual and exclusive use, and, if so, whether they were granted by proper authority and have a money value, susceptible of accurate calculation. If the returns from the War Department establish these facts, as it is respectfully submitted they do, the claimant is clearly entitled to recover, according to the decision in the case of McKenna, already cited.
   Richardson, Oh. J.,

delivered the opinion of the court:

The claimant was a hospital steward of the Army from February 18, 1864, to October 23,1889, when he was retired, after thirty years’ service, under the provision of the Act of February 14, 1885 (23 Stat. L., 305), superseded September 30, 1890 (1 Supp. Rev. Stat., 2d ed., ch. 1125, p. 810), by reenactment with proviso not material in this case.

Ever since then he has been upon the retired list. Under both acts an enlisted man serving as a private or as a non-commissioned officer became entitled upon retirement to “ thereafter receive seventy-five per centum of the pay and allowances of the rank upon which he was retired.”

In addition to the amount received since retirement the claimant seeks to recover, as commutation for fuel and quarters, $765.

It would not be necessary to determine whether or not the claimant would be entitled to recover were it not for the “Act making appropriations for the support of the Army for the year ending June 30,1888, and for other purposes” (24 Stat. L., 394, 399), which, under the head of “ Barracks and quarters,” appropriated $620,000 tberefor, with many details, and contained the following clause: “And no part of any of the moneys so appropriated shall be paid for commutation of fuel and for quarters to officers or enlisted men,” which was repeated in every subsequent annual Army appropriation act.

In our opinion this prohibition is conclusive against the present claim.

The claimant’s learned counsel relies upon the fact that there is no express repeal of the above-mentioned acts of 1885 and 1890 upon which this action is founded, and he cites Langston's Case (21 C. Cls. R., 10, and 118 U. S., 389) in support of his position.

. It is the intention of Congress that must control in the construction of statutes. As we said in Byer’s Case (22 C. Cls. R., 63), “ express repeal is not the only way by which the intention and will of Congress to change existing laws may be enacted.” In several cases it has been held that salaries may be reduced otherwise than by express repeal. (Mitchell’s Case, 109 U. S., 146; Byer's Case, 22 C. Cls. R., 58; Frances's Case, 22 C. Cls. R., 403.)

The Supreme Court said, in the case of Langston:

“According to the settled rules of interpretation, a statute fixing an annual salary of a public officer at a named sum, without limitation as to time, should not be deemed abrogated or suspended by subsequent enactments which merely appropriated a less amount for the services of that officer for particular years, and which contained no words that expressly or by clear implication modified or repealed the previous law.”

There Congress merely appropriated a sum less than that specifically fixed by express statute for the salary of the office by name, without words which by clear implication modified or repealed the previous law.

The present case is entirely different. Here Congress did not make an appropriation insufficient to meet any specified salary, but did make an appropriation in the usual form for “ barracks and quarters,” out of which alone the claimant could have been paid under existing statutes, and then added the expressive clause that “ no part of any of the moneys so appropriated shall be paid for commutation of fuel and for quarters to officers or enlisted men.”

This was ail absolute prohibition and not a mere omission to make a sufficient appropriation. Had there been a like prohibition, in any form, in the statute appropriating a sum for Langston’s salary less than that fixed by previous statute, it is not to be doubted that the decision would have been against the claimant.

As to the prohibitory clause, the claimant’s argument is:

“This is merely a limitation as to the manner of settlement, and not a prohibition of their allowances. It is simply a failure to provide for the payment of commutation from that particular fund, and does not operate against the payment of commutation of quarters to officers, which provision is made in another part of the bill. It does not take away the right to these allowances; it does not modify the retirement law nor existing regulations in regard to the amount of such allowances, and has no effect whatever beyond a change in the manner of settlement of accounts for quarters and fuel in case of enlisted men not serving at military posts.”

We are unable to concur in this argument. In our opinion such a prohibition in an appropriation act., forbidding payment out of the only appropriation applicable thereto, although inartistically expressed for that purpose, as clauses often are in appropriation acts, reaches beyond the mere manner of settlement, and for the year suspends the previous law.

It is further argued in the claimant’s brief that “it would certainly be extremely inconsistent on the part of Congress to prohibit in one paragraph the payment of commutation of quarters to officers and in another paragraph of the same bill provide for it, as is done in this instance.”

There would be great force in this argument if the two paragraphs were coextensive; but they are different. One prohibits payment of commutation of both fuel and quarters to all officers or enlisted men, and the other appropriates for commutation of quarters alone, not to all officers, but only “to commissioned officers on duty without troops at places where there are no public quarters.”

One provision must be taken as an exception to the other and not as an inconsistency of legislation.

But apart from this action of Congress it is evident that the claimant is not entitled to recover commutation for fuel and quarters. In the case of commissioned officers the Revised Statutes, section 1274, provide that they-“shall receive seventy-five per centum of the pay of the rank upon which they are retired.” The act 14th February, 1885, above quoted, adds the word “allowances”iudesignatingtberetiredpayof enlisted men. The claimant, though a hospital' steward, was in law an enlisted man, and it was determined in the case of McKenna (23 C. Cls. R., 308) that this term “allowance” does not extend to fuel and quarters. He seeks to make a distinction between this case and the previous one by showing that a hospital steward when on duty has assigned to him a room and is supplied with fuel. But those things are not a fixed allowance attached to the office. They are only furnished when they are necessary for the due performance of a hospital steward’s duties. When he is not on duty and when he is not in service he is not entitled to them, and it follows that he can not recover commutation for them. They are not like clothing and subsistence, which every enlisted man is at all times entitled to receive so long as he remains in the service, and which are really payment in kind.

The term “allowances” was undoubtedly used in the statute to secure to the retired soldier three-fourths of his entire personal pay, including clothing and subsistence. There would be no propriety in extending the term to other things which were furnished to him during his active service, not as compensation, but to promote the due performance of his military duty.

The demurrer is sustained and the petition is dismissed.  