
    JAMES W. KIRKER v. THE UNITED STATES.
    [No. 14532.
    Decided March 29, 1886.]
    
      On the defendants’ Demurrer.
    
    A provost-marshal seeks to recover the three months’ pay given to officers of volunteers hy the act 3d March, 1865.
    The right of a pi’ovost-inarshaltothe three months’ pay given to officers of volunteers by the Act 3d March, 1865 (13 Stat. L., § 4, p. 497), is so questionable that the executive construction long given to the statute and left undisturbed hy Congress while legislating in regard to provost-marshals should not be overturned.
    
      The Reporters’ statement of the case:
    The single statutory question involved in the case was raised by demurrer to the claimant’s petition.
    
      Mr. F. P. Dewees in support of the demurrer:
    The only question here is whether provost-marshals were officers of volunteers. They were appointed by the President under the Act 3d March, 1863 (12 Stat. L., 731), but constituted a military police, only entitled to pensions by virtue of special legislation, and therefore not entitled to the three months’ extra pay given to officers of the volunteer army.
    
      Mr. O. F. Benjamin opposed:
    There are two military classes - the regular establishment and the volunteers. Provost-marshals were not of the regular establishment. A volunteer as defined by an act of Congress (14 Stat. L., § 2, p. 434) was one called into the military service for a limited period who was not entitled to go upon the retired list. For such the three months’ extra pay was provided when they were discharged from .service, and provost-marshals are clearly within the definition and properly officers of volunteers.
   Nott, J.,

delivered the opinion of the court:

The right of provost-marshals to thé three months’ pay given to certain officers of volunteers by the Act 3d March, 1865 (13 Stat. L., § 4, p. 497), is so questionable that the cour t does not feel at liberty to overturn the construction which has been given to the act by the executive branch of the Government for a great length of time, and which has been left undisturbed by Congress while legislating in regard to the same officers.

The judgment of the court is that the petition be dismissed.  