
    HIRAM S. PARKHURST v. THE UNITED STATES.
    [Departmental
    45.
    Decided May 28, 1894.]
    
      On the Proofs.
    
    An enlisted man in one regiment is appointed a commissioned officer in another. Ho is discharged from the former to enable him to aecex>t promotion in the latter. Instead of reporting for duty he goes home and remains .there on acconnt of alleged injuries. In 1890 the War Department recognizes him as having been commissioned. I. In the administration of statutes relating to the muster and pay of officers, the decisions of the War Department should be regarded by the Treasury Department as establishing matters of fact concerning the military relations which existed between the Government and the officers. But all questions of law involving financialrelations and obligations must be determined by the accounting officers of the Treasury.
    II. The Act 3cl February, 1887 (24 Stat. L., p, 377), which provides that certain officers absent at the date of their commissions “ shall be entitled to the same pay and emoluments as if actually performing the duties of the'grade” is for the benefitof persons connected with the Army. It does not extend to one who, being discharged from one regiment to accept promotion in another, failed to report, and going home remained there, neglecting to account for his absence and keeping himself beyond the reach of military authority, until the end of the war.
    
      The Reporters’ statement of the case:
    Tbis case was transmitted to the C ourt of Claims by the Secretary of the Treasury on the 4th day of December, 1891, by the following communication:
    “Treasury Departmeht,
    “Office of the Secretary,
    
      “Washington, D. G., December4,1891.
    
    
      “ The Honorable the Chief Justice and Judges of the 0ourt of Claims:
    
    “ Pursuant to the provisions of the second section of the Act of March 3,1883 (22 Stat., 485), I have the honor to transmit herewith the claim for pay and bounty of Hiram S. Parkhurst, alias Hiram S. Smith, together with the vouchers, p'apers, proofs, and documents pertaining thereto, to be proceeded with under the rules of your court and law.
    
      “As the claim involves a controverted question of law, it is referred as above at the request of the Second Comptroller of the Treasury, whose statement of the case is also inclosed for your information.
    “ Respectfully, yours, “ O. L. Spaulding,
    
      u Acting Secretary.”
    
    The claimant appeared and filed his petition.
    The court, upon the evidence, found the following facts:
    I. The claimant enlisted under the name of Hiram S. Smith, on the 30th day of July, 1861, as a private in Company B, Third New York Cavalry Volunteers; was promoted to the rank of sergeant; reenlisted as a veteran volunteer on January 5,1S64, and was discharged July 9, 1864, to enable him to accept promotion.
    II. He was appointed and commissioned by the Governor of New York second lieutenant, in the Twenty-fourth Regiment New York Cavalry Volunteers on June 20, 1864, to rank from June 15,1864.
    III. A vacancy existed in this regiment in the grade named from June 15, 1864, to June 17,1865.
    IV. This commission was sent to the claimant at the headquarters of the Third New York Cavalry Volunteers, but did not reach him until two weeks or more after its issuance.
    V. The claimant was injured in the small of his back on or about the 19th day of June, 1864, by his horse throwing him and falling upon him, so that he became unfit to perform military duty, but not actually confined to his tent.
    VI. The claimant never reported for duty to the commanding officer of the Twenty-fourth New York Cavalry Volunteers, nor communicated with him in any way, but about three weeks after his injury went to his home in Mexico, N. Y., where he remained until after the termination of the war, being at intervals confined to his house, but not to his bed. He received no leave of absence, nor did he transmit the monthly certificates of a medical officer as to the necessity for his continued absence, as required by Army Regulations. On December 80, 1864, John Hutchinson was commissioned second lieutenant Twenty-fourth New York Cavalry Volunteers, “vice H. S. Smith, ‘ never reported.’ ”
    The injury described in the preceding finding during this timé prevented the claimant from performing military service.
    
      VII. It does not appear tliat the interests of the United States would have been advanced by the claimant’s going to hospital for treatment rather than to his own home.
    VIII. The claimant applied to the War Department for recognition as a second lieutenant in the Twenty-fourth Begiment New York Cavalry Volunteers, to rank from the 15th day of June, 1864, under the provisions of the acts of Congress of June 3, 1884, and February 3, 1887. On the 2oth day of November, 1890, the following action was taken in the War Department:
    “War Department,
    
      “TWashington City, Fov. 25th, 1890. “The Second Auditor or the Treasury:
    “Sir: I am directed by the Secretary of War to inform you that, under the provisions of the act approved J une 3,1884, and the acts amendatory thereof, Hiram S. Smith is considered by this Department as commissioned to the grade of 2d lieut. Company —, 24th Begiment New York Cav’y Volunteers, from June 20,1864, to June 17, 1865.
    “The claimant has been advised that for any pay that may be due under the provisions of law herein referred to application should be made to your office.
    “Very respectfully, “F. O. Ainsworth,
    
      uCapt. and Assistant Surgeon, U. S. Army.
    
    “Per J. C. Hesse.”
    The claimant also applied to the Treasury Department for the pay which he claimed to be due him under these acts and the recognition of the War Department, but his claim was disallowed on the ground that his case was not within the said acts.
    IX. In the administration of laws relating to the military service the War and Treasury Departments have uniformly held that an injury received by such an accident as is set forth in finding v is a wound.
    X. After receiving his commission, as before stated, and being mustered out and discharged from the service July 9, 1864, to enable Mm to accept promotion, the claimant, without reporting to the commanding officer of the Twenty-fourth New York Cavalry or to any other military authority, procured and accepted transportation as an enlisted man discharged from the service from the place of his discharge to or toward the place of his enlistment; nor did he after his discharge ever
    
      report to tbe Twenty-fourth New York Cavalry or to the War Department, but continued at his residence without recognizing any military authority.
    
      Mr. A J. Willard for the claimant:
    TJpon the facts the claimant maintains:
    1. That the act of February 3, 1887, gives him a right to pay from June 20, 1864, to June 17, 1865.
    2. That it is the duty of the Second Comptroller to follow the ruling of the War Department in this' case and to allow him pay for the above period.
    The act of February 3, 1887, provides that an officer duly appointed and commissioned, “who may have been absent by reason of wounds, or in hospital by reason of disability received in the service in the line of duty, at the date of his commission, if a vacancy existed for him in the grade to which so commissioned,” shall receive the same pay as if actually performing his duties as an officer.
    The facts, as developed by the evidence, show that this officer was injured in the line of duty, and was for that reason unable to report to his regiment and be mustered in under his commission. The question presented by the Comptroller is whether the disability for which he was absent is properly to be classed as a wound. Such has been the uniform rule of the Treasury and War Departments. Thousands of claims have been settled on this basis. No good reason appears why there should now be a departure from this-rule. The word “ wounds ” ■ having received this interpretation, it is presumed that Congress used the word with that interpretation in view.
    It has been the uniform practice of the War and Treasury Departments under the four statutes of 1866, 1870,1884, and 1887 (Eec., 38,41), to accept the decisions of the War Department as binding on the Treasury Department, and to refuse payment where that Department refuses recognition, and to make payment where that Department recognizes the officer. The reference of this claim to this court is for the opinion of the court as to the duty of the Second Comptroller. The court is to place itself in the position of the Comptroller, and to advise the Comptroller of the action which he ought to take. As this rule of the Department has existed for twenty-seven years, it is the duty of the Comptroller to follow it. The principle of stare decisis is one' which should be strictly followed in executive practice.
    
      Mr. G. G. Binney (with whom was Mr. Assistant Attorney-General Bodge) for the defendant.
   Nott, J.,

announced the following as the conclusions of the court:

1. In the administration of the statutes relating to the muster and pay of officers in the civil war, the decisions of the War Department should be regarded by the Treasury Department as establishing matters of fact concerning the military relations which existed actually between the Government and the officers; but, upon the facts thus determined by the War Department, all questions of law involving the financial relations existing between the Government and the officers and the financial obligations of the Government to the officers must be determined and decided by the accounting officers of the Treasury pursuant to the principle laid down in the cases of United States v. Jones (134 U. S., 483) and Dennison v. The United States (25 C. Cls. R., 304, 334) in relation to the effect which should be given to the approval of commissioner’s accounts by the circuit courts.

2. The second proviso of the Act 3d February, 1887 (22 Stat. L., p. 377), which provides,

“That any person held as a prisoner of war, or who may have been absent by reason of wounds, or in hospital by reason of disability' received in the service in the line of duty, at the date of his commission, if a vacancy existed for him in the grade to which so commissioned, shall be entitled to the same pay and emoluments as if actually performing the duties of the grade to which he was commissioned and actually mustered at such date,”

Must be construed to have been enacted for the benefit of persons connected with the Army. The terms “prisoner of war,” “wounds,” “hospital,” “disability received in the service,” all relate to persons having a military status. In the presept case it appears that the claimant voluntarily severed his connection with the Army by seeking his discharge as an enlisted man; that he received and accepted transportation as an enlisted man from the place of his discharge to or toward the place of his enlistment; that he never reported to tbe commanding officer of Ms regiment or to the War Department, nor rendered any military service, nor tendered any service, nor subjected himself to military authority, nor accounted for his absence, as required by Army Regulations, 1863 (Appendix B, sec. 14, p. 511), from the time of his discharge during the remaining period of the Avar. These acts constituted a renunciation or resignation of his commission' as second lieutenant under the decision in the case of Ide (25 C. Gis. B., 401); and it must be held that he is not entitled to the benefits of the act of 1887.  