
    WILLIAM N. WILSON v. THE UNITED STATES.
    [Departmental 34.
    Decided April 28, 1890.]
    
      On the Proofs.
    
    In 1862 the Fifth Delaware Volunteers is mustered in for special duty, but its members are permitted to return immediately to their homes. Subsequently they guard a railroad and when mustered out are paid only for the time when actually on duty. The pay is accepted without protest. After twenty-three years a claim is presented at the Treasury for full pay aud bounty.
    I.When a claim is transmitted by the head of an Executive Department under the Bowman Act, the court is to determine the law applicable to the case in the Department.
    II.A telegram of the Adjutant-General, directing that troops be paid only for the time they were actually on duty, may not of itself be an executive construction of certain statutes, but, if the War and Treasury Departments acted upon it and the troops acquiesced for more than twenty-three years, will be held as against one of them to have been a contemporaneous construction which should not be disturbed after such a lapse of time.
    III.Where a claimant acquiesced for twenty-three years in an executive construction of certain statutes relating to his pajr as a soldier, it is too late for the accounting officers to settle it, or for the Secretary of the Treasury to transmit it. x
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    The claim in the above-entitled case was transmitted to the court by the Secretary of the Treasury on the 31st day of March, 1888.
    I. The claimant was a private in the Fifth Regiment, Delaware Militia, when the following order was issued under authority of the War Department:
    “War Department, “Adjutant General’s Office,
    “ Washington, October 10, 1862.
    “ Maj. EL B. Judd, U. S. Army,
    
      “ Mustering Officer, Wilmington, Del.:
    
    
      “ Sir : By direction of the Secretary of War you will comply with the following instructions:
    “1. You will muster into the United States service, by companies, the sixteen companies of infantry raised by Ool. Henry L. Macomb. Ten companies will be organized into a regiment, to be known as the Fifth Delaware Volunteers; the extra companies will be temporarily attached to this regiment until the additional companies for another regiment are raised.
    * * *- # # * #
    “3. The entire force above enumerated will be mustered ia for special military duty in the State of Delaware.
    “ I am, sir, very respectfully, your obedient servant,
    “ Thobias M. Vincent,
    ‘‘ Assistant Adjutant- General.”
    II. November 6, 1862, in pursuance of said order this regiment was mustered into the United States service for the term-of nine months, and thereupon all of its members were permitted to return to their respective homes, where they pursued their usual avocations, went wherever they pleased within and without the State, and did no active duty until called out as stated in the next succeeding finding.
    III. The following telegrams were sent by Major-General Schenck, commanding the Eighth Army Corps, on their respective dates:
    “Headquarters Middle Department,
    “Eighth Army- Corps, uBaltimore, June 19, 1863.
    “Col. H. S. McGomb,
    “ Wilmington, Del. :
    
    “ Governor Cannon informs me that the Fifth Delaware Infantry is subject to my order for the General Government. You will, without delay, call out and send, duly equipped for service, five companies of that regiment to Fort Delaware to report for duty to Brigadier-General Schoef.
    “Headquarters Middle Department,
    “Eighth Army Corps, uBaltimore, June 26, 1863.
    “ Maj. Henry B. Judd, U. S. Army:
    “ Major : Your telegraph is received. I am glad to hear of' the ten extra companies of the Fifth Delaware. Let them be-called out and put on the Philadelphia, Wilmington and Baltimore Railroad by all means, and at as early a moment as possible. The force there is, I know, too small. Take steps for obtaining these troops as soon as possible and post them on the road at once without further order, leaving one-third of what will then be the whole force, and concentrate at Havre-de Grace and the crossing of the Susquehanna.”
    
      On the 27th of June, 1863, the claimant and others reported ■for duty, entered into active service, and so continued until, with the regiment, he was mustered out August 6, 1863. The •course of the War Department had the consent and approval of the governor of Delaware.
    IV. On August 7, 1863, Major. Judd telegraphed Adjutant-General Yincent as follows:
    “Shall the Fifth and Sixth Delaware Home Guards be allowed pay for nine months, or for time actually on duty?”
    Adjutant-General Yincent replied as follows:
    “Fifth and Sixth regiments will be allowed for time actually ■on duty.”
    The pay-rolls were made out in accordance with the terms of the Adjutant-General’s telegram, and the regiment was so paid. The claimant and others received the amount allowed and signed the pay-rolls without formal protest, although'there was some oral complaint. No appeal from the order of the Adjutant-General appears to have been taken to higher authority, and as paid the accounts were settled at the Treasury Department. The pay-rolls and a copy of the Adjutant-General’s telegram have been on file in the Department ever since.
    It does not appear that at the time of the muster-in of his company the claimant made demand for his first month’s pay nor for any bounty money. Nor did he take any further action in relation to the two claims until he presented them to the Treasury Department, December 16, 1886.
    Y. The claims were received and examined by the Second Auditor, and by him transmitted to the Second Comptroller for his decision thereon. Before the Comptroller had passed upon them they were transmitted to this court by the Secretary of the Treasury, by the following letter:
    “Treasury Department,
    “Office of the Secretary,
    Washington, D. 0., March 31, 1888.
    “ To the honorable the Chief-Justice and Judges of the Court of Claims:
    
    “ I, C. S. Fairchild, Secretary of the Department of the Treasury of the United States, do hereby respectfully represent that a claim has been made against said Department by William N. Wilson, late of the Fifth Regiment of Delaware Infantry, for arrears of pay, bounty, and allowances for services in said regiment, and is now pending therein, and that said claim involves controverted questions of fact and law.
    
      “And now I, as Secretary aforesaid, under and by authority of section 2 of the act of Congress approved March 3,1883, do cause the said claim, with the vouchers, papers, proofs, and documents pertaining thereto, to be herewith transmitted to yo ur honorable court for finding and report as provided in said act.
    “ Respectfully yours,
    “C. S. Fairchild,
    “ Secretary?
    
    
      Mr. J. W. Smith for the claimant:
    For sixteen years the accounting officers have been receiving, allowing, and reporting to Congress pay and bounty claims as belated as this one, and not in a single instance has Congress withheld the necessary appropriation. In face of the work and expense required by this suit the wonder is, not that the plaintiff appeared late, but that he ever ventured to appear at’all.
    The facilities of private soldiers in time of war for formal protest against action of superiors is rather limited. It is doubtful if the paymaster would have paid anything to these men had they entered written protest on the muster and pay roll, or that the mustering officer would have permitted such entries in view of General Vincent’s telegram to pay for time on active duty only.
    
      Mr. J. G. Ohaney (with whom was Mr. Assistant Attorney - General Cotton), for the defendants.
   Richardson, Oh. J.,

delivered the opinion of the court:

When a claim is transmitted by the head of an Executive Department, under the second section of the Bowman Act, of March 3, 1883, ch. 116 (22 Stat. L., 485), the court is to determine the law applicable to the case in such Department, and not necessarily what the law would be upon the same claim if commenced by voluntary petition filed under the statutes conferring jurisdiction upon the court to enter judgment. If it were otherwise we would be obliged to dismiss this case under the provisions of Revised Statutes, section 1069, because the petition was not filed within six years after the claim first accrued.

This pase was transmitted to the court by the Secretary of the Treasury, and embraces two claims, both growing oat of llie claimant’s service in the Fifth Kegiment of Delaware Militia after mustered into the service of the United States in No • vember, 1862, one for $25 bounty, and the other for monthly pay from the date of muster-in until the time when he was called upon for active duty, neither of which has been paid.

The facts are these u The claimant was a private in said regiment when, with the consent and approval of the governor of Delaware, the regiment was mustered into the service of the United States for nine months. As soon as mustered in all the members were permitted to return to their homes, pursue their usual avocation, and go where they pleased in or out of the State until called into active service. This call was made in June, 1863, when, on the 27th of that month, the claimant and others reported for duty, and actually served from that date until August, 1863, when he was mustered out with the regiment.

A question immediately arose as to the time for which the regiment should be paid, and in reply to a telegram of inquiry the Adjutant-General telegraphed, August 7, 1863, that “the regiment would be allowed for time actually on duty.” The pay-roll was so made out; the claimant accepted the amount allowed and receipted for the same on the pay-roll without formal protest. At the time of the muster-in the claimant made no demand for the bounty now claimed nor for his first month’s pay.

This case has been thoroughly argued, in printed briefs and orally, upon the question as to whether or not the members of th e Delaware regiment when mustered into the service of the United States were volunteers or State militia, and as to their right to bounty, and when their pay was to commence. The following statutes were cited and relied upon:

Act of July 22. 1861 (ch. 9, 12 Stat. L., 268).
Act of July 24¡ 1861 (ch. 16, 12 Stat, L., 274). '
Act of July 25, 1861 (ch. 17, 12 Stat. L., 274).
Act of July 29, 1861 (ch. 12, Stat. L., 279).
Act of July 31, 1861 (ch. 34, 12 Stat, L., 284).
Act of. August 6, 1861 (ch. 63, 12 Stat, L., 326).
Act of February 13, 1862 (ch. 25, 12 Stat. L., 339).
Act of July 17, 1862 (ch. 201, 12 Stat. L., 597).
Act of March 3, 1863 (ch. 78, sec. 6, 12 Stat. L., 743).
Act of March 3, 1869 (ch. 133,15 Stat. L., 334).

This array of statutes sufficiently indicates that ambiguity and doubt in their construction as applicable to the Delaware militia called iuto the,.service of the United States may exist at this late day, however clear they might have appeared, if they did so appear, to the officers who were called upon to execute them at the time of or soon after their passage, with the events to which they applied fresh in the minds of such officers. All of the acts, as well as the occasion for the employment of militia and volunteers in the suppression of the rebellion to which they relate, are more than twenty years old. The War Department and the Treasury Department both acted upon the order of the Adjutant-General, a copy of which and the original pay-rolls, with the receipt of the claimant and of others indorsed thereon, have ever since been on file in the Departments.

The particular transactions involved date back more than twenty-three years before the claimant asserted his present claim.

The telegram of the Adjutant-Gen eral might not of itself be regarded as an executive construction of general application, but in connection with the facts that the War and Treasury Departments acted upon it, and the claimant acquiesced therein for more than twenty-three years, it may be held, as against him at least, to have been a practical contemporaneous construction by the officers who were then charged with the execution of the statutes, and by himself who acquiesced, and that such construction ought not to be disturbed by the Treasury Department after such a lapse of time.

In the United States vs. Johnston (124 U. S. R., 253) the Supreme Court held that—

“The contemporaneous construction of the statute by those charged with its execution, especially when it has long prevailed, is entitled to great weight and should not be disregarded or overturned, except for cogent reasons and unless it be clear that such construction is erroneous.”

In United States vs. Moore (95 U. S. R., 763a) that court said:

“The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons. The officers concerned are usually able men aad masters of the subject. Not unfrequently they are the draughts-men of the laws they are afterwards called upon to interpret.”

In numerous other cases the same doctrine is laid down and followed. Stuart v. Laird (1 Cranch., 299, 308); Brown's Case (18 C. Cls. R., 537) affirmed on appeal, 113 U. S. R., 568; Harrison's Case (20 C. Cls. R., 122); Water's Case (21 C. Cls. R., 30, 38) affirmed ou appeal.

The claimant’s acquiescence -is well defined and strongly marked. The claim for bounty is founded mainly upon the acts of July 5 and July 17, 1862 (12 Stat. L., 509, 597).

The first act provided tliat the act of July 29, 1861 —

“ Shall be so construed as to allow $25 of the bounty of $100 therein provided to be paid immediately after enlistment to every soldier of the regular and volunteer forces hereafter enlisted during the continuance of the existing war.’’

The second act provided that—

“Every soldier who may enlist under the provisions of this section shall receive his first month’s pay and also $25 as a bounty upon the mustering of his company or regiment into the service of the United States.”

notwithstanding these provisions it does not appear that the claimant made any demand for bounty nor for one month’s pay in advance at the time of his muster-in, and he never claimed more pay than was received until the lapse of more than twenty-three years after he and his regiment were paid on their muster-out, when, on.the 6th of December, 1886, he presented these claims for the first time to the Treasury Department for payment.

For six years this court was open for him in which to file his petition and for the same period he might have presented his claims to the Treasury Department, whence they could have been transmitted here for a judicial determination and judgment under the provisions of the act of June 25, 1868, chapter 71 (now Bev. Stat., sec. 1063); and in either case an appeal might have been had to the Supreme Court from the judgment of this court, but he waited until the opportunity of obtaining a judgment from which an appeal would lie oh behalf of himself or of the Government to that court of last resort was lost before presenting his claims to the Treasury Department (Finn Case, 123, U. S., 227).

In our opinion the claims were presented too late for the ac- ■ counting officers to receive and examine them.

The clerk will certify these findings of fact, conclusions of law, and this opinion to the Treasury Department lor its guidance or action according to the provisions of the Bowman act.'  