
    WILLIAM A. ORR v. THE UNITED STATES.
    [No. 22521.
    Decided March 3, 1902.]
    
      On the defendants’ Demurrer.
    
    An officer is honorably discharged from the military service in 1864 while in,Virginia. The petition sets up facts which indicate that he was entitled to pay while traveling from the place of his discharge to the place of his residence, but this suit therefor is not brought until after the claim is barred by the statute of limitations.
    I. The Act Sfth February, 1897 (29 Stat. L., 593), provides that certain officers who were not mustered in at the proper time during the civil war shall be entitled to pay, as “if actually mustered at that date. ’ ’ This can not be construed as opening officers’ pay accounts, or as a new promise to pay debts barred by the statute of limitations.
    II. The act was passed for a specific purpose clearly indicated in its terms, to allow to certain officers pay which accrued between the date of appointment and the date of muster.
    
      The JReporteri statement of the case:
    The material allegations of the petition will be found in the opinion of the court.
    
      Mr. Jamies A. Tanner (with whom was Mr. Assistant Attorney- General Pradt) for the demurrer.
    
      
      Mr. John Paul Jones opposed. Mr. O. D. Pennebaher was on the brief:
    Congress had discovered that there was a lurking equity somewhere in the date of any officer’s appointment, and with most commendable perseverance had sought to find, and to provide for it, but thus far had failed.
    The next attempt was, we submit, more successful. Ten years later the act approved February 2d, 1897, was passed (29 Stat. L., 593). It was identical in intent with the former legislation but it used the disjunctive conjunction “or” between the words “ appointment” and “ commission.” It says * * * ‘c shall be held and considered to have been mustered into the service of the United States in the grade named in his appointment or commission * * * .” For the first time t íe two things, which are in themselves entirely different, were severed and disassociated .by the word “or.” There can be no commission without an appointment, but there may be an appointment which is not succeeded bjr a commission. The latter is merely the evidence of the former. Appointing and commissioning are distinct acts. (Marbury v. Madison, 1 Cranch, 137; Oollins v. TJ. 8., 15 C. Cls. R., 31; Kilbvrn v. TJ. 8., Id., 17; Young v. TJ. 8., 19 C. Cls. R., 153; Bennett v. TJ. 8., Id., 385). Until the passage of the act of 1897 commissions and appointments had been treated as and given the effect of being one and inseparable by the use of the word “and.”
    It is true that the disjunctive and conjunctive conjunctions are frequently used interchangeably and are sometimes synonymous, but they must not be so considered when they •can be given their ordinary and usual meaning. If no other reason could be shown for making this change, the condition of the New York and Kentucky regiments is sufficient, but every consideration of justice and equity leads to the conclusion that an officer’s pay should commence from the date he actually entered upon duty under his appointment or commission, and not from some arbitrary date from which he takes rank and precedence, fixed by the accounting officers or the War Department.
    From cover to cover of the Statutes at Large there will be found no other such illustration of the persistent intent of Congress to correct admitted injustices by remedial legislation. No sooner were defects discovered in one act than they were sought to be remedied by another, until the culminating act of 1897, which is, we submit, broad enough to cover every possible case, if that act is accorded even a fair and sensible construction.
    Whilst the question of claimant’s “ appointment” does not arise in this case, he having been accorded recognition from the date he claims, the use of the disjunctive “or” has been referred to and commented upon at length, as showing that the act of 1897 conferred a new, definable legal right which only existed previously as an equitable proposition, and on account of which this court can take jurisdiction.
    Every one of the acts cited refer to pay and emoluments or allowances. Nothing else was in the legislative mind. The question of rank and precedence; or military status, was not considered; no provision was made for additional stripes on the sleeves or stars on the epaulettes. Those questions were left where they rightfully belong, in the jurisdiction of the War Department. The solo object of the legislation was the correct and equitable adjustment of an officer’s pay and emolument account. They were acts solely for the consideration of the accounting officers, and with which the War Department had no concern.
    The joint resolution of 1866 provided that, under certain conditions, “the Pay Department shall allow such officers full pay and emoluments, etc.,” and each of the succeeding acts said, in substantially the same language, that those officers coming within its purview “shall be considered as commissioned, etc., and entitled to all pa3r and emoluments, as if actually mustered at that date,” until the act of 1897, which broadened its predecessors by the addition of the words, “or appointed.” The injunction to consider these officers as commissioned or appointed was directed to the accounting officers, because they alone settle pay accounts, and the date of a man’s recognition by the War Department as to rank and precedence is, under authorities cited, immaterial.
    This court has affirmed its jurisdiction under the acts prior to that of 1897 in the cases of Myers (20 C. Cls. R., 284), 
      Worth (21 Id., 15), Gartlidge (24 Id., 155), Parkhwrst (29 Id., 399), and other cases not reported.
    In exercising jurisdiction under the act of 1897, we ask the court to consider the character of the services rendered, the conditions under which they were sought and accepted, the obligations and the duty of this Government to the old soldiers, and the policy of Congress toward them, as evidenced by the acts cited, and then to apply the well-established rules of construction regarding remedial statutes, and to brush aside those narrow and technical defenses to which the Supreme Court referred in United States v. Hosmer (9 Wall., 432).
    The defendants admit the court’s jurisdiction under this act, if the petition had been filed within six years after claimant’s discharge in 1864, but insist that the act of 1897 confers no new jurisdiction except upon items of pay accruing between the date of recognition under the so-called “remuster” and the date from which the officer was originally paid. We insist, on the other hand, that the act of 1897 is, in terms, a new promise to pay an old and outlawed debt. The language of this act is a direct mandate to the accounting officers, charged with the duty of adjusting such accounts, to resettle them from a certain date, to be determined under its terms, and to settle them according to the pay laws properly applicable. It is not a mandate requiring them to settle these accounts illegally or according to whim or caprice, but according to fixed statutory rules, one of which was that providing for certain travel pay and allowances upon discharge. (.TIulnIVs case, 16 C. Cls. R., 562.)
    And as was held in this case, and in Huffman’s ease (17 Id., 55), George's case (18 Id., 432), and Simon's ease (19 Id., 601-610), if the Treasury Department refused to do so this court had the power to render judgment upon the new promise thereby created, upon a class of demands barred by limitation of statute.
    This claim is founded upon an expired legal obligation, but, as we contend, is revived by a new promise to pay, and it also presents questions of the highest equitable and moral consideration. Upon no moral hypothesis should a claimant of this class be debarred his rights because of a stupid and admittedly erroneous decision of an executive officer. This decision, and all of like nature, were within the knowledge of Congress when it passed the act of 1897. (United States v. Realty Co., 168 IT. S., 427.)
    If the judicial branch of the Government has no power to review the express determination of Congress that a named classed of claims are moral and honorable obligations, the executive branch certainly has no power to defeat an honest claim merely because a previous incumbent in office, from lack of legal knowledge, or other cause, rejected the claim. (Jordan’s case, 19 C. Cls. R., 108-120.)
    In both cases above quoted from Congress had made an appropriation to pay the specified claim or class of claims, as did also the act under which suit was brought in the Hukill case (supra), and stress was apparently laid by the court upon that fact as a strong factor in establishing its jurisdiction in the particular cases.
    The necessary conclusion is that, to use the language of this court in the Hulkill case, the act of 1897 is “an express mandate to the Treasury officers” to adjust claims of this character ab initio, to give credit for all underpayments, and make charge for all overpayments, except as restricted by the third section, and in so doing, of course, to property construe the law under which each particular item arises.
    The repugnance of any other rule, than as above stated, to principles of common honesty and fair dealing, both with due regard to the interests of the defendants and claimants must be apparent. It was earty laid down by Attorney-General Cushing (6 Ops. Atty. Gen., 576) as follows:
    “But if one party insist upon having the accounts opened to readjust them, in view of correcting an error committed to his prejudice, on their thus being opened it will be the right and duty of the accounting officers to correct, at the same time, any error committed to the prejudice of the other party.”
    The above was quoted as the law governing in this court in Ilillborn’s case (27 C. Cls. R., 557).
    The same doctrine was judicially announced bjr the Supreme Court as early as 1841, by Mr. Justice Story in Gratiot v. The U. 8. (15 Pet., 336-70).
    A.nd further, it is immaterial whether the debt due the United States grows out of the same subject-matter or something of an entirely different nature. (Allen v. U. S., 17 Wall., 207; MoKnight v. U. S.,8 Otto, 179.)
    This well-established rule of law and of unvarying practice is not only founded upon the inherent right of a debtor to collect from his creditor before he pays, but is based upon statutory authority, beginning as early as the act of 1797 (Stat. L., 515, now sec. 3166, Rev. Stat.), whereby the United States is given priority in the distribution of an insolvent’s estate. Later legislation (acts 25 January, 1828; 4 Stat. L., 216 and 1836, 5 Id., 31) has been merged and now appear as section 1766, Revised Statutes.
    This case is in every material aspect the same as Yoé’s case (30 C. Cls. R., 370) and Milchristfs oase (31 C. Cls. R., 401).
    The court’s jurisdiction being conceded as to one item, it must take jurisdiction of the “whole case,” as is specifically provided in section 1061, Revised Statutes, and give judgment accordingly.
    The defendants admit that the court might render judgment for any sum or sums found due during the period covered by the remuster. In other words, that, in this case, it can go back to August, 1863, but can not take jurisdiction of an item accruing subsequently, in 1865, under the same service contract. There might possibly be force in an argument based upon a claim for an item accruing prior to remuster, upon the ground that the act of 1897 itself fixed the time from which an officer’s account should be taken up, i. e., the date of his remuster. We do not, however, admit that this position is' sound. Without going into an argument upon the point, we state, as we will presently show, that such is not now, and never has been, the practice of the accounting officers in adjusting claims arising under the act of 1897, or any of its predecessors. For over forty years the practice has been the rationable, sensible, and, as we insist, the legal one based on the act of 1797 (Rev. Stat., 3466) and section 1766, Revised Statutes, of taking an officer’s original entry into the service, no matter in what capacity, as the starting point, and following his service to the date of his discharge. In no other way could the injunction of section 1766 be carried out; and the same is true under the act of 1897.
    
      The spirit of all the legislation upon the settlement of accounts is, that those charged with this duty must state a full and complete account, so that a final balance may be struck. This duty is equalty obligatoiy, no matter what the forum. When relief is sought in this court, the claimant can not, by the mere filing of his petition, or by any allegations, extend the jurisdiction of the court be3'und the statutory period, but every item accruing within that period is a proper subject for investigation. In the case at bar the act under which we sue fixes the date back to which our demand runs, viz, the date of “remuster,” and must of necessity include every item growing out of the subject-matter, i. e., claimant’s service as a volunteer officer, which has since accrued.
    The act of 1797 (swpra:) provided for the filing of set-offs by individuals when sued by the Government (sec. 951, Rev. Stat.), and was most liberally construed by the courts in allowing set-offs up to the amount claimed by the Government, upon the ground that “the object is to settle between the parties their mutual accounts. ” (IT. 8. v. Buchanan, 8 How., 83-105; IT. 8. v. Jones, 8 Pet., 386.)
    These decisions were rendered long before the act of 1863 by which the Government consented, for the first time, to be sued, and whilst the utmost limit as to set-offs was permitted, extending even to distinct causes of action, either legal or equitable {IJ. 8. v. Buchanan, siqora), no judgment could be rendered in favor of the citizen, if his set-off amounted to a counterclaim, because, as was said in Beeside v. Wallter (11 How., 272-290), “to permit a demand inset-off against the Government to be proceeded to judgment against it would be equivalent to the permission of a suit to bo brought against it.” (See also De Qroot v. Ü. 8., 5 Wall., 419; IT. 8. v. TEclc-fordhs Exlr., 6 Wall., 484.)
    Neither the act of 1863 nor that of 1887 (Tucker Act) changed the law, as it then stood, by way of restriction. On the contrary, they broadened it. The act of 1863 created this court and conferred upon it all the power and jurisdiction which the Federal courts possessed, “to settle between the parties their mutual accounts,” but it went further and gave it jurisdiction to render judgment against the Government.
   Weldon, J.,

delivered the opinion of the court:

In the amended and substituted petition it is alleged in substance as follows:

That the claimant is a citizen of the United States, residing in the State of Indiana; that he was duly appointed and commissioned as first lieutenant Company H, One hundred and tenth Ohio Infantry Volunteers, and was duly enrolled at a general rendezvous at Piqua, Ohio, on or about the 8th day of August, 1862, and thereupon entered upon duty as first lieutenant as aforesaid. Claimant further alleges that at said last-mentioned date there was a vacancy in said office, to which he was appointed or commissioned, and that his command was assigned to duty in the field, and that he performed the duties pertaining to said grade; that he tendered his resignation because of disabilities incurred in the service in the line of duty, which was accepted on or about the 28th day of February, 1864, in the State of Virginia, and that he was thereupon honorably discharged the service of the United States. It is further alleged that, under the provisions of the act of Congress approved January 29, 1813 (2 Stat., 726), ho is entitled to—

“Be allowed his pay and rations, or an equivalent in money, for such term of time as was (shall be) sufficient for him to travel from the place of discharge to the place of his'residence, computing at the rate of twenty miles per day.”

Claimant further alleges that he made a claim for an equivalent in money of his pajr and rations as aforesaid to the proper accounting officers of the Treasury, which said claim was disallowed by the Treasury Department on January 6, 1901, for reasons as follows:

“He was paid pay and allowances in full as first lieutenant from the 8th day of August, 1862, to date of discharge. His muster as first lieutenant was amended to date from August 9, 1862. Pay and allowances to date of receipt of discharge order by officer were paid by settlement No. 154571, confirmed December 31, 1891, and travel allowances were disallowed by same settlement, he having been discharged for his own personal convenience.”

Claimant further alleges that he was not discharged by way of punishment for offenses; that when he entered the service of the United States he was subject to the mustering regula-

tions then in force in the Army of the United States; that he brings this suit under the provisions of the act of Congress approved February 24, 1897 (29 Stat. L., 593).

The legal effect of the demurrer is an admission of all matters alleged in the petition properly pleaded; and the question is, Do those matters constitute in law a legal or equitable cause of action upon which the plaintiff has the right to recover? It is insisted by the defendants’ counsel that under the statute cited in the plaintiff’s petition, and on which he predicates his claim to recover, there is no right, and that whatever rights he may have had by the act of January 29, 1813 (2 Stat. L., 796), are now barred, not having prosecuted his claims within six years after the cause of action arose.

Upon the other hand, it is insisted by counsel for the claimant that the legal effect of the act of 1897 is to reopen the account between the plaintiff and the United States, and thereby to revive the right which accrued to plaintiff under the act of 1813 (supra); that but two things are necessary to bo shown, to wit, that he was “duly appointed or commissioned to be an officer of the volunteer service during the war of the rebellion,” and that he was “subject to the mustering regulations at the time applied to members of the volunteer service” and “that under some law regulating the pay and allowance of such officers he was not paid, or properly paid, for his service. ” The logical effect of this contention is to open de novo the account of the plaintiff and the United States, and upon the whole case to determine the legal and equitable rights of the parties. It does not seem to the court that the act of 1897 was intended to open the account of all the soldiers serving in the Army of the United States during the war contemplated by the act.

The statute provides:

“That any person who was duly appointed or commissioned to be an officer of the volunteer service during the war of the rebellion, and who was subject to the mustering regulations at the time applied to members of the volunteer service, shall be held and considered to have been mustered into the service of the United States in the grade named in his appointment or commission from the date from which he was to take rank under and by the terms of his said appointment or commission, whether the same was actually received by him or not, and shall be entitled to pay, emoluments, and pension if actually mustered at that date.”

We are asked to construe the statute in the light of the legislation preceding the enactment of the law of 1897, and the alleged policy of the defendants to do justice and deal liberally with the soldiers; and in that connection we are cited to the case of Hosmer v. United States (9 Wall., 432), in which the Supreme Court has spoken of the disposition of the Government to deal liberalty with men who peril their lives for their country. As has been said, and often repeated, courts have no policy and their only right is to determine and apply the law as to the judicial mind it may seem to exist. The limitation on the court is to construe the statute as its terms and words may indicate the will and purpose of the legislature.' The statute in the first instance is to bo read on the lines, not between the lines, and that construction given which is best sustained by the words, of the statute, taking into consideration the circumstances under which the law was enacted. As has been quoted in the case of Jaeger v. United States (27 C. Cls. R., 278), “The clearest guide to the meaning of the statute is the statute itself. If words are plain, there is no room for construction or interpretation.”

As has been said by the Supreme Court:

“Of course our duty is to give effect to the law of Congress touching this matter. But we must ascertain that will from the words Congress has chosen to apply, interpreting such words according to their ordinary meaning as well as in the light of all the circumstances that may fairly be regarded as having been within the knowledge of the legislative branch of the Government at the time it acted on this subject.” (Dewey v. United States, 178 U. S. R., 510; Same v. Same, 35 C. Cls. R., 178.)

In the case of Maxwell v. Dow (176 U. S., 602) the Supreme Court has substantially announced the same doctrine as a safe rule in the construction of a statute.

The defendant is not pleading a set-off in this proceeding, but the bar of the statute of limitations against the claim made by the allegations of the petition. If the United States were insisting on an indebtedness of the claimant, founded upon his services in the war and the payments made to claimant for such services, in that case the defense might have the legal effect to open the account, and the court might then determine whether upon the whole account there was an indebtedness. It is insisted by counsel for the claimant that the act of 1897 embraces “a new promise to pay an old debt.” If that be true, the law must be applied to the debt which is intended by the purpose of the statute. The claimant has alleged his cause of action as based upon the act of 1897, and in order to recover on that theory he must bring the demand which he claims within the letter or manifest spirit of the law. It is true that the technical rules of pleading are not applicable in the jurisdiction of this court; and while the claimant is not absolutely bound to recover as he alleges, as at common law, he must show a right to recover upon some legal theory.

The statute of 1897 was passed for a specific purpose clearly indicated in its terms, and that is to allow any person duly appointed or commissioned as an officer, and who was subject to the mustering regulations, pay from the time he was to take rank under the appointment or commission, and that such pay, emoluments, or pension shall be paid him as if actually mustered at the date of his rank. The object of the statute is to pay emolument which accrued during the time between the date of rank and muster.

The demand in this proceeding did not accrue during that period, but accrued, if at all, when the plaintiff was discharged from the -service and became a citizen. The claim contemplated by the statute has reference to a claim accruing at a certain period of service; but the claim sued for did not accrue during that period. One is for service and the other is for traveling expenses upon the termination of his service. The demurrer is sustained and the petition dismissed.  