
    ROBERT THORNTON v. THE UNITED STATES.
    [No. 16818.
    Decided May 31, 1892.]
    
      On the Proofs.
    
    A private in the Marine Corps enlists at Mare Island', and is discharged at Washington at his own request. He seeks transportation thence to the place of his enlistment. The accounting officers refuse it under a rule of long standing, that traveling allowances are not made to soldiers discharged at their own request.
    
      I. A soldier discharged at his own request, before the expiration of the period of his enlistment, is entitled to transportation, or commutation thereof from the place of his discharge to the place of his enlistment.
    II. The Revised Statutes, § 1290, as amended by the Act %7th February, 1877 (19 Stat. L., p. 244) provide that when a soldier is discharged from the service, except “by way of punishment for an offense,” he shall be allowed transportation. The statute having expressly declared an exception, another cannot be supplied by construction.
    
      The Reporters1 statement of tbe case:
    The following are the facts of this case as found by the court:
    I. The claimant enlisted, at the age of 13 years 1 month and 3 days, in the Marine Corps of the United States, at Washington, D. 0., on August 29,1878, for a term of seven years ten months and twenty-seven days, and was then “ bound to learn music” in said corps. April 17,1880, he was rated as a drummer. November 6, 1886, he was discharged from- the service at Mare Island, Cal., as a drummer. November 10,1886, he reenlisted at Mare Island, Cal., as a private in said corps for a term of five years/ On March 13,1889, before the expiration of the last-mentioned term of enlistment, Thornton, as a private in said corps, was, at his own request and not by way of punishment for an offense, discharged from service at the Marine Barracks, Washington, D. C., by direction of the Secretary of the Navy. The claimant was settled with in. full for all pay and allowances except transportation and subsistence in kind, or in lieu thereof travel pay and commutation of subsistence, from Washington, D. C., the place of his discharge, to Mare Island, Cal., the place where he had reenlisted. And when he was discharged at the end of his first term of enlistment he received travel pay and commutation of subsistence computed at the rate of one day for every 20 miles of the distance from Mare Island, Cal., to Washington, D. C.
    II. The travel pay and commutation of subsistence of a private in the Marine Corps when discharged in the third year of his second term of enlistment, and when he is allowed the same, are stated by the proper accounting officers of the Treasury Department to be one day’s pay at 60 cents per day and one ration commuted at 30 cents for each 20 miles of the distance from place of discharge to place of last enlistment; and in the settlement of accounts they adopt 3,136 miles as tbe distance from Washington, D. C., to Mare Island, Cal.
    According- to this practice, the travel pay and commutation of subsistence on such a discharge would be for—
    157 days’ pay, at 60 cents. $94.20
    157 rations, at 30 cents.. 47.10
    Total. 141.30
    III. Under a long-standing construction by the accounting-officers of the Treasury Department of the law embraced in section 1290 of the Revised Statutes, it has been the practice to refuse travel pay and commutation of subsistence to enlisted men from the place of their discharge to the place of enlistment when they have been discharged at their own request prior to the expiration of their term of enlistment. The only exception made under this practice is when an enlisted man is discharged at his own request after twenty years of faithful service. (Army Regulations, 1863, par. 163.)
    IY. Before bringing suit here the claimant presented the claim set forth in his petition to the proper accounting officers of the Treasury Department, and it was disallowed, in accordance with the practice mentioned in finding hi.
    
      Mr. L. Cabell Williamson for the claimant.
    Not having been discharged from the service by way of punishment for an offense, the claimant is entitled to mileage from place of discharge to that of enlistment. (Sec. 1290, Eev. Stat.; Joseph F. Kingsley v. The United States, O. Ols. R., 219.)
    
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    (1) We contend that as the claimant had no right in law to be granted a discharge before the expiration of the five years’ term of his second enlistment, and certainly not before serving three years of the term (Eev. Stat., 1608; act of June 16, 1890, 26 Stat., 157, chap. 426), he accepted his discharge with all the conditions upon which it was granted, one of which was compliance with the “immemorial usage” referred to by the Second Comptroller, or, as the Secretary of the Navy calls it, “ the practice in the office of the paymaster of the Marine Corps.” We bold that, the claimant waived bis right to the travel pay and commutation of subsistence, if sucb riglit be ever bad, because be can not and does not plead ignorance of the practice or usage of the Marine Corps, in which be served nearly ten years, in respect to discharges therefrom.
    (2) Another objection might perhaps be sustained against this claim, to wit: the. provision of the act of March 3,1875, chapter 133, contained in Supplement of the Revised Statutes, second edition, page 81, which has declared illegal “ all allowances for mileages and transportation in excess of the amount actually paid.”
    This prohibition was so sweeping,' that Congress soon found it necessary to make some exceptions, which are noted at the foot of the cited page by the learned jurist who prepared the Supplement for publication; and in his marginal references to sections of the Revised Statutes which may have been affected by the prohibition is section 1290, upon which claimant asks judgment.
    It is for the other side to show an exception in favor of discharged i1 soldiers ” or “ marines,” if any there be. As to them, the prohibition works no hardship, because, as it is now construed, the law primarily allows them transportation and subsistence in kind when they are honorably discharged after serving the enlistment term.
    (3) There is still another objection to the allowance of this claim, to wit: the provisions of section 2 of the act of June 16, 1890 (supra,). This act is contained in the second edition of the Supplement of the Revised Statutes, page 757, and there noted on the margin of the page as also affecting section 1290 of the Revised Statutes. As the latter section relates to “ soldiers,” and as by executive construction its provisions have been extended to “ marines,” we may well insist that as claimant is demanding what he regards as a soldier’s right, he shall also accept a soldier’s disability in res]iect to that right as declared in the act of 1890, to wit: that a “ soldier ” discharged upon his own application at the end of three years from the date of his enlistment shall not be entitled to the allowances provided in Section 1290 of the Revised Statutes. '
    In view of this statnte, and if a “marine” is a “soldier,” it would be a strange construction which would allow a “marine” travel pay and commutation of subsistence when he is discharged at Ms own request and before be bas faithfully served three years from the date of his enlistment, when such an allowance must be denied to every “soldier” who has faithfully served three full years of his term of enlistment and is then discharged on his own application.
   Nott, J.,

delivered the opinion of the court:

The claimant originally enlisted in the Marine Corps, at Washington, in 1883. He was discharged at Mare Island, Cal., in 1886, but immediately reenlisted for a term of five years. In 1889 he was discharged at Washington, by order of the Secretary of the Navy, two years before his term of enlistment had expired, upon his own request. No condition upon his discharge was imposed by the Secretary, except that it was to be “upon settlement of his accounts.” He sought commutation or traveling expenses in place of transportation from Washington, the place of his discharge, to Mare Island, the place of his last enlistment. It was refused by the Second Comptroller upon the following grounds:

“ Since 1832 it has been the practice of the accounting officers' and the War Department to refuse in all cases traveling allowances to soldiers discharged at their own request and for their own convenience. The expression of the law “when a soldier is discharged from the service” has reference to aminvolun-tary discharge, and not to a case where the soldier is discharged upon his own request.”

The law upon which the claimant rests Ms demand is Be-vised Statutes, section 1290, which, as amended by the Act 27th February, 1877 (19 Stat. L., p. 244), is in these words:

“When a soldier is discharged from the service, except by way of punishment for an offense, he shall be allowed transportation and subsistence from the place of his discharge to the place of Ms enlistment, enrollment, or original muster into the service.”

The ambiguity of the statutewas broughtinto it by an amendment. Originally it read that “When a soldier is honorably discharged from the service he shall be allowed transportation,” etc. The act of 1877 struck out the word “honorably,” and introduced the words u except by wa/y of punishment for an offense.” As it now stands, it expressly declares one single exception, and seems to imply that in all other cases whatsoever the discharged soldier shall be allowed transportation and subsistence from the place of Ms discharge to the place of his enlistment. The law and usage, therefore, from 1832 to 1877, were that a soldier should not receive transportation from the place of his discharge to the place of Ms enlistment if his discharge at that place was brought about by his own request. The usage, if not the law, since 1877 has continued to be that 'a soldier will not receive transportation unless the discharge was brought about by the expiration of the term of enlistment or by the voluntary action of the Government.

The term “honorably discharged” frequently appears in the statutes and in military orders and correspondence; but the form of the discharge given to soldiers does not use the term “honorable”'or “honorably,” or dishonorable or dishonorably. The Army Begulations, 1863,165,166, provided that blank discharges on parchment would be furnished from the Adjutant-General’s Office, and that the cause of discharge would be stated in the body of the discharge. It was therefore- -frequently a question with courts and accounting officers whether a soldier was or was not honorably discharged. In Kelly’s Case (5 C. Cls. R., 476-483), the Second Comptroller held “that the .document itself not saying whether the discharge was honorable or dishonorable, the fact must be determined by proof;” and beheld that the discharge was dishonorable; but the Adjutant-General certified that the instrument was in the usual form of discharge given to honorably discharged soldiers.

The amendment enacted by the act of 1877, in striking out the word “honorably” and at the same time inserting the words “except by way of punishment for an offense,” was undoutedly intended to relieve courts and accounting officers from the embarrassment of determining whether a discharge was honorable or dishonorable. The question now is whether the amendment did more than this — whether it overruled the rulings and usage of the accounting officers for a period of forty-five years and gave, or was intended to give, transportation to soldiers whose discharge at the time and place of discharge was of their own seeking — was a favor and not a right.

Whatever may have been the understanding of the comm.it-tee which reported the amendment or the members who voted for it, the court must take the intent of Congress as it stands expressed in the statute which they have made. As the law stood by departmental construction of more than forty-five years of no questioned usage, a soldier bouorably discharged was entitled to transportation from the place of Ms discharge to the place of his enlistment, except in cases where he was discharged before the expiration of his term of enlistment at his own request. The amendment came and changed the law as thus administered. The reenacted law declares an exception which is not the exception of the Executive Departments. Hxceptio probat regulmn. Where a statute declares one exception, the judiciary can not declare that another was intended. Here the statute as amended declares that “ when a soldier is discharged from the service” “heshall be allowed transportation and subsistence from the place of his discharge to the place of his enlistment,” “ except” when his discharge is “ by way of punishment for an offense.” In this case the discharge not having been for the punishment of an offense, the case came within the rule and not within the exception.

The judgment of the court is that the claimant recover of the defendants the sum of $141.30.  