
    CASPER H. CONRAD, JR., v. THE UNITED STATES.
    [No. 18572.
    Decided February 1, 1897.]
    
      On the Proofs.
    
    Four cadets at West Point are found guilty of conduct prejudicial to good order and military discipline by a court-martial September 1,1893, and sentenced to be dismissed the service. The President com- * mutes the sentence of two to suspension until August 28,1894, and of two to suspension without pay. Suit is brought for pay by one of the former during the period of suspension.
    I Where a cadet at West Point is sentenced by a court-martial to be dismissed the service, and the President commutes the sentence to suspension for a fixed period it will not be inferred that his purpose was to deprive him of pay, unless it is expressly so stated or is clearly established that such was his purpose.
    II. Where the President commutes the sentence of one cadet to suspension and of another to suspension without pay, it is conclusive that he did not intend the former sentence to extend to loss of pay.
    
      The Reporters’ statement of the case:
    The following are the facts in the case as found by the court:
    I. The plaintiff, Gasper H. Conrad, jr., was on and prior to the 1st day of September, in the year 1893, a cadet of the first ■ class in the Military Academy of the United States.
    II. September 1, 1893, he was arraigned and tried before a general court-martial convened at West Point, N. Y. The charge, specifications, pleas, findings, and sentence, with the action of the President thereon, are as follows:
    “ Charge. — Conduct to the prejudice of good order and military discipline.
    “Specification 1: In that Cadet Casper H. Conrad, jr., first class, United States Military Academy, being on duty with the battalion of cadets encamped in the Columbian Exposition grounds, near Chicago* Ill., did leave the limits prescribed for cadets m said encampment in violation of paragraph 114, Eegulations United States Military Academy, and did visit the city of Chicago in civilian dress and without authority on the afternoon of the 21st day of August, 1893, between the hours of 12.30 and 5 p. m.
    “ Specification 2: In that Casper EL. Conrad, jr , first class, United States Military Academy, having obtained a permit on the 21st day of August, 1893, to be excused from dinner, 4 in order to be with friends during the day,’ the said permit enabling him to be absent continuously from camp during the interval between morning and evening parades, and having reported at 9.45 a. m. his departure from camp and his intention to take advantage of his permit and his return to camp at 0 p. m., did during this interval take an undue advantage of the privilege which his permit granted by procuring a suit of civilian clothes, leaving the limits prescribed for cadets, and visiting the city of Chicago. This at or near the city of Chicago, Ill.
    
      “Plea. — To the first specification, ‘Guilty;’ to the second specification, ‘ Sot guilty;’ to the charge, ‘Guilty.’
    “ Finding. — Of the first specification, ‘ Guilty;’ of the second specification, ‘ Guilty;’ of the charge, ‘ Guilty.’
    “ Sentence. — And the court does therefore sentence him, Cadet Casper H. Conrad, jr., first class, United States Military Academy, ‘ To be dismissed the service of the United States.’
    “ The proceedings in the foregoing case of Cadet Casper H. Conrad, jr., first class, United States Military Academy, having been forwarded for the action of the President, the following are his orders thereon:
    “Executive Mansion, September 36,1893.
    
    “ The record and findings of the court-martial in the case of Casper ET. Conrad, jr., are approved, but the sentence and judgment thereupon is modified and commuted to suspension until the 28th of August, 1894.
    “Grover Cleveland.”
    
      III. On an application made by tbe plaintiff to be paid during tbe period of bis suspension tbe following opinions were rendered by tbe several officers of tbe War and Treasury Departments therein named:
    
      “Case of Cadet Casper H. Conrad.
    
    “WAR Department,
    “Paymaster-General’s Oppice,
    “ Washington, D. C., November 9,1893.
    
    “ Respectfully returned to tbe Adjutant-General of tbe Army.
    “Suspension from duty does not work forfeiture of pay unless so specified in the order for suspension. See para. 335, Paymaster’s Manual, decision of tbe 2d Comptroller in this connection. Tbe 2d Comptroller, under date of March 29, 1888, decided that a cadet under suspension could count tbe time so passed in determining bis right to longevity increase. A soldier sentenced to imprisonment in tbe guardhouse does not forfeit bis pay unless it is so specified in the sentence. (See also section 7, page 469, Digest of Opinions of Judge-Advocate-General, edition 1880.)
    “Wi. Smith,
    
      “Paymaster-General U. 8. Army.
    
    “P. S. — Paragraph 941, vol. 3, Comptroller’s Digest, is apparently at variance with the foregoing references.- It is understood in tbe case then considered tbe sentence of dismissal was approved. Cadets Conrad and Bash have not been dismissed, whatever has been done. In contrast with tbe action had in tbe case of Cadets Conrad and Bash attention is invited to tbe action of tbe Executive in tbe case of Cadets Applewhite and Rogers (see General Court-Martial Order, No. 118, c. s., herewith). In these last cases the sentence of dismissal was ‘confirmed, but said sentence is commuted to suspension without pay,’ &c.
    “It is hardly fair to inject into tbe record of tbe Executive action of September 26, 1893, the pregnant words, ‘without pay,’ which appear in tbe action of October 3,1893. In view of "the situation and to avoid future possible embarrassments, it is recommended that this matter be referred to tbe 2d Comptroller of tbe Treasury, requesting an expression of his views upon tbe question herein presented. (See sec. 748, Comptroller’s Digest, vol. 2.)
    “ Wm. Smith,
    
      11 Paymaster-General U. 8. Army.
    
    
      “Received back from A. G. O., Nov. 20,1893, with views of Acting Judge-Advocate-General, concurred in by tbe Secretary of War November 18,1893:
    “ [6th indorsement.]
    “WAR DEPARTMENT,
    “ Judge-Advocate-General's Office,
    “ Washington, D. 0., Nov. 17,1893.
    
    “ Respectfully returned to the Secretary of War.
    “Cadets Conrad and Bash were tried by court-martial and sentenced to be dismissed. In Conrad’s case the superintendent of the Military Academy recommended that the sentence be commuted to suspension until the 28th of August next, nothing being said about a forfeiture of pay. The action recommended in Conrad’s case was taken in both cases, and the question has now been submitted whether they are entitled to pay during their suspension.
    “These cadets are in their present position by virtue of the sentences' of courts-martial. They have been put back a year; but they have been retained in the service, and I am of opinion that they are entitled to the pay which has been provided for their support. Nothing is better established than that the punishment imposed by the sentence of a court-martial can not be added to by those by whom it is enforced. When it is intended that suspended cadets shall lose their pay, it is so expressed. That it was not so expressed in these cases indicates, that it was not intended: Of course, a mitigated sentence can no more be added to than one that has not been mitigated.
    “The ruling of the Second Comptroller (Maynard), referred to in preceding indorsements, was made in the matter of the claim of Alfred.M. Fuller, which is substantially as stated in the inclosed paper. In that case the sentence was mitigated to suspension from the Military Academy until the commencement of the next academic year, ‘ at which time he will join the then first class.’ Stress is laid on the word ‘join,’ as indi eating a severance from the Academy, although it is quite evident that it had reference only to classes. The effect of the sentence was to sever Fuller from one class and place him in another; but he remained a cadet.
    “The Second Comptroller was of opinion that Fuller remained in the service during his suspension, but not as a cadet of the Military Academy. But if he did not remain a cadet what was he? He must either have been a cadet or not in the service at- all. Certainly Conrad and Bash are still cadets. They hold cadetships to which others can not be appointed until they have been graduated or discharged, and I think they have a right to the pay go long as they have not been deprived .of it by the sentence which has placed them temporarily in their present position.
    “C. Norman Lieber,
    “ Acting Judge-Advocate-General.
    
    *{ [2d indorsement.]
    “War Department,
    “Paymaster-General’s Ofpice,
    “ Washington, January 3, 1894.
    
    
      “ Respectfully submitted to the honorable the Secretary of War.
    “ In view of the action as announced in par. 941, vol. 3, Second Comptroller’s Digest of Opinions, and to avoid complications which may arise should the accompanying accounts be paid without first obtaining the concurrent approval of the officials of the Treasury Dep., it is recommended that the question as to the right of Cadets Conrad and Bash to be paid for the period covered by their suspension be submitted to the Second Comptroller of the Treasury.
    “It does not necessarily follow that accounts approved in the War Department will receive like consideration in the final settlements made in the Treasury Department.
    “Wm. Smith,
    ' “Paymaster-General, U. 8. Army.
    
    “ [3d indorsement.]
    “War Department, January 4.1894.
    
    “Respectfully referred to the Second Comptroller of the Treasury, with request for decision of the question presented by the Paymaster-General in the preceding indorsement.
    “By order of the Secretary of War: .
    “ John Tweedale, Chief Cleric.
    
    “[4th indorsement.]
    “War Department, January 10,1894.
    
    “Respectfully returned to the Paymaster-General, inviting attention to the decision of the Second Comptroller, dated Jan. 8,1894, inclosed herewith.
    “Joseph B. Doe,
    
      “Asst. Secretary of War.”
    
    “Treasury Department,
    “Office of the Second Comptroller,
    “ Washington, i). C., Jan. 8th, 1894.
    
    
      “ Respectfully returned to the Secretary of War, and his attention invited to the following remarks:
    “ Cadet Casper H. Conrad, first class, United States Military Academy, by sentence of court-martial, was directed < to be dismissed tbe service of the United States.’ On September 26, 1893, the President modified such finding of the court-martial by the following order:
    “ ‘The record and findings of the court-martial in the case of Gasper JEL Conrad are approved, but the sentence and judgment thereupon is modified and commuted to suspension until the 28th of August, 1894.’
    “The vital question to consider is the effect of the word ‘suspension’ in this order of the President. It is contended by the Acting Judge-Advocate-General of the Army as follows:
    
      uil am of the opinion that the cadet is entitled to the pay which has been provided for his support. Nothing is better established than that the punishment imposed by the sentence of a court-martial can not be added to by those by whom it is enforced. When it is intended that suspended cadets shall lose their pay it is so expressed. That it was not so expressed in this case indicates that it was not intended.’
    “ I find myself unable to agree with the Acting Judge-Advocate-General. As stated, the whole matter turns upon the meaning and effect of the word £ suspension ’ in the President’s order. In the Century Dictionary, among the various definitions given to the words ‘suspend’ and ‘suspension’! find the following:
    “ ‘To debar, usually for a time, from every privilege; from the execution of an office, or from the enjoyment of an income; to cause to cease for a time from operation or effect, as to suspend the habeas corpus act; to suspend the rules of a deliberative assembly; to cease from operations; desist from active employment; specifically, to stop payment or be unable to meet one’s engagements. In law, suspension, a temporary cessation of a man’s right, as when the rent or other profits of land cease by unity of possession of land and rent.’
    “ Rapalje and Lawrence’s Law Dictionary defines the word ‘suspend’ as follows:
    “ ‘To forbid an attorney or solicitor or ecclesiastical person from practicing for an interval of time.’
    “And, among other definitions, defines ‘suspension’ as follows:
    “ ‘An estate, interest, right, or remedy said to be suspended when it is extinguished for a time, but may be afterwards revived.
    “In the light, then, of these definitions there is but little trouble in determining the question of the right or not of this cadet to pay during the period of time for which he was suspended. Had the sentence of the court-martial been approved he would not only have lost his rank and office as a cadet, but also all emoluments connected there with, that of pay included. The President, by virtue of his authority as Commander in Chief of the Army, modifies this finding, and in lieu thereof substitutes for the sentence and judgment of dismissal of the court-martial ‘suspension until tbe 28th of August, 18942 This suspension, then, causes his original appointment as a cadet to cease from operation or effect until the 28th of August, 1894.
    “Substitute the word ‘suspension7 for the words ‘to be dismissed7 in the finding of the court martial and the sentence will read this way: ‘ Suspended from the service of the United States until the 28th of August, 1894.7
    ‘If, then, the cadet is not in the active service of the United States, he is not entitled to the emoluments of the office to which he was originally appointed. Under the common-law system of pleading there is no count so flexible and nearly approximate of the rules of equity as that of quantum meruit, which is the doctrine that a person may recover the reasonable value of any service rendered to another and accepted by him directly or indirectly. This doctrine is not applicable in this case. By the direct order of the President Cadet Conrad was suspended from duty in the service of the United States. It is, therefore, wholly a question of indifference whether he is still connected with the Academy or not. The order is imperative, and has been brought to his attention that he is suspended from duty for a specified time in the service of the United States, and during that time he can not be called upon to do duty or render service to the United States; nor can he be compensated for any, if rendered.
    “A suspended cadet is not permitted to remain at the Military Academy. He is off duty during his term of suspension. To exact no service and pay him his salary during the time of suspension is to reward rather than punish for conduct prejudicial to the good order and discipline of the Academy.
    “I indorse the views expressed by Comptroller Maynard in his decision of January 23,1886. That case is on all fours with the one under consideration.
    “The foregoing remarks in the case of Cadet Conrad are equally applicable to the claim of Cadet Louis H. Bash, both cases having been referred by the Secretary of War for my decision thereon.
    “ C. H. Mansub, Second Comptroller.”
    
    IV. In accordance with the decision of the Second Comptroller, plaintiffs’ pay was withheld from October 3, 1893, the date of the receipt at West Point of the order of suspension, to August 31,1894, amounting to $492.
    
      Mr. Allan Rutherford and Mr. George A. King for the claimant.
    
      Mr. Michael Savage (with whom was Mr. Assistant Attorney-General Dodge) for the defendants.
   Davis, J.,

delivered the opinion of the' court:

Plaintiff, a West Point cadet, was tried by court-martial, found guilty, and sentenced “ to be dismissed the service of the United States.” The proceedings in due course reached the President, who decided as follows:

“Executive Mansion, September 26,1893.
“The record and findings of the court-martial in the case of Casper H. Conrad, jr., are approved, but the sentence and judgment thereupon is modified and commuted to suspension until the 28th of August, 1884.
“Grover Cleveland.”

Plaintiff applied for pay during this period of suspension, and the Judge-Advocate-General of the Army decided that he was entitled to this pay, but in this decision the Second Comptroller did not concur. The plaintiff was not paid; hence this action.

The only question, then, is as to the action of the President. Did he, by his order, intend to deprive plaintiff of pay, as well as to suspend him from privileges of the Academy, or did he intend to do simply what on the face of the order appears— that is, to suspend him from the service, but not to deprive him of his pay!

To support the action of the Treasury the words “ without pay” must be read into the President’s order, a course which, in this criminal proceeding, can not be done, unless a very clear case is presented that this was the President’s intention. That this was not the President’s intention; that he acted (as would naturally be assumed) with care in drafting his decision, and said exactly what he meant, is .shown by his decision in two other cases before him at the same time with the one at bar, which arose from incidents occurring at the same time.

In those cases the sentence of dismissal was “confirmed, but said sentence is commuted to suspension without pay.” Here were presented to the President four cases of cadets sentenced by court-martial to dismissal. In two cases he modified the sentence to “suspension without’ pay.” In two cases (those now at bar) he modified the sentence “to suspension,” and to suspension alone. We can not inject into this sentence the words “ without pay,” especially as it appears from a comparison of these sentences that the President in the case at bar intended to omit those words.

Judgment for plaintiff in the sum of $492.  