
    LIEUTENANT HENRY’S CASE. Anthony W. Henry, appellee, v. The United States, appellants.
    (6 Court of Claims R., p. 162; 17 Wallace K., p. 405.)
    
      On the defendants’ Appeal.
    
    
      In August, 1863, every company in the Second Ohio Volunteers has become reduced below the minimum number entitling it to a second lieutenant. The office of second lieutenant being vacant in Company D, the first sergeant is commissioned by the governor of Ohio. He is also assigned to duty in that company by the colonel of the regiment. Bui on applying to be mustered, the mustering officer refuses, because of the company being below the minimum number. The lieutenant remains on duty, being the only commissioned officer with the company, is in command several times in battle, and incurs all the responsibilities and performs all the duties of a commissioned officer. The Pay Department refuses to pay him except as first sergeant. After the war, he brings his suit in the court below to recover his pay as second lieutenant. The court decides that he is entitled to be paid as such, notwithstanding that at the time he was commissioned his company had fallen beloiv the minimum number entitling it to a second lieutenant. Judgment for the claimant. Thedefendants appeal.
    
    I. The finding of the court bolow, that a mustering officer alleged that Company D, in a certain regiment, was reduced below the minimum number,, is not a finding of the fact that the company was bolow the minimum.
    II. Where a military officer shows that he was duly commissioned as second lieutenant, and served as such during the years 1863 and 1864, but “without fault or neglect of his own teas not mustered,” he makes aprimafacie case to recover his pay under the Joint Resolution 26 July, 1866, (14 Stat. L., p. 368.) This prima-facie case is not rebutted by showing that the mustering officer alleged that the company to which the lieutenant was assigned was reduced below the minimum number; for the Act March 3, 1863, (12 Stat. L., p. 734, § 20,) which provides “ that whenever a regiment is reduced below the minimum number allowed by laxo, no officer shall be appointed in such regiment beyond those necessary for the command of such reduced number,” does not prohibit the appointment of an officer when it is only a company and not the regiment which is reduced below the minimum number allowed by law.
    
    
      
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts found by tbe court below:
    On tbe lOtb day of August, 1863, a commission was executed in due form of law by bis excellency, David Tod, then governor of tbe State of Obio, nominating and appointing tbe claimant a second lieutenant in tbe Second Eegiment of Obio Volunteers, (infantry,) and was received and accepted by tbe claimant on tbe 15tb day of August, 1863, be then being tbe first sergeant of Company D, in sucb regiment.
    By reason of tbe commission so issued and accepted, tbe claimant reported for duty to tbe commanding officer of said regiment on tbe day and year last aforesaid, and was by bim assigned to duty as second lieutenant in Company D of said regiment.
    Tbe claimant actually served and performed tbe duties of second lieutenant from tbe said 15tb day of August, 1863, until tbe lOtli day of October, 1864, when be was mustered out of tbe military service of tbe United States with said regiment, and received a certificate of honorable discharge, as first sergeant of said Company D.
    During all of tbe time aforesaid be was known and recognized as a commissioned officer of the rank aforesaid by bis superior officers, as well as by tbe rank and file of bis command; and a portion of tbe time, and during several battles, commanded tbe company.
    Upon receipt of tbe commission from tbe governor of Obio tbe claimant presented himself for muster, as second lieutenant, to tbe proper mustering officer of bis division, but was refused sucb muster, tbe mustering officer alleging that Company D, to which tbe claimant was assigned, was reduced below the minimum number, and that, therefore, be was not entitled to be mustered. Tbe claimant repeatedly offered himself for muster to tbe proper officer during tbe time aforesaid, but without success. He was always ready and anxious to be so mustered, and bis failure to be so mustered arose from a cause beyond bis control, without fault or neglect of bis own.
    On tbe 10th day of October, 1864, when bis regiment was mustered out of service, be was paid tbe amount due to the rank and services of first sergeant of infantry and no more.
    He has applied to the Pay Department of the United States Army for the pay and allowances of a second lieutenant during said term of service, after deducting the' pay so received as first sergeant. Bqt [payment -of, the same, or guy part.,thereof,- was refused ,by, said,M.ep$rtp»mt( Vn v yv<> <,•">
    
    ...The claimant'.has,always,'bornetrfie- allegiance; to the .Q-pvr-ernmenf pf tfie'-XIpited Stages, .is-a. citizen of the -United States, antipas,never,uid.ed, abetted,’.or- -given, .encouragement to the recent Rebellion against-said Government. - / ■
    ■ The. pay .and allowances so .due, as, second liputepant, amount in the aggregate to $1,416.11'. And the pay so received,-as first sergeant, was, $298, leaving a balance of .$1,118.11 due and unpaid to the clgimapf. ( ,. , ■ ; . , >. , ,,P ..
    ,. And the court at -the request of the defendants- further finds:
    : -1. The placing on duty alleged in this case- was merely by the order of the colonel of the regiment. ,, , -,,, ..
    . 2. From August, 1863, to October, 1864, no company of .said regiment had .a minimum number, of men... - ,
    •And .upon the foregoing findings-of fact, thp Court of Claims, as.a conclusion .of law, fop the purposes of .am appeal to the Supreme Court, .decides,:,,- , ... =■ >
    That the claimant’ having, under a proper- military-commission, from the governor of Oh,io, discharged the duties and spf-fered the risks-and responsibilities of .a commissioned officer in actual military-, service, pursuant to the orders of his-regimental commander, and in the absence of other commissioned officers to command the company to which he was assigned,,should recover his pay for the services actually rendered* notwithstanding that the company to which he was attached was below the minimum.number requiredby-t-he War,Department. ,
    ■s-fiffi -N P. Chipman for the claimant, ¿ppelleé;
    This suit is based upon the first section' of' the joint 'resolution of Congress, approved July 26,1866, entitled “ Joint resolution for the relief of certain officers of th.fi Army.”
    - Tliis act oif Congress was passed to' provide for thé payment of commissioned officers who had entered upon duty prior to muster, hut who, finder existing orders’of the War Departifient, could not be paid for such service. The law is clear, and admits but one construction, In such a case the court has: no other duty but to enforce it. Where a statute is plain and' finambiguous, nothing is left to construction. (United States v. Fisher, 
      
      assignee of Blight, 2 Crunch, 358.) This canon of the law will not be questioned. What is the fair, obvious meaning of the joint resolution ? Wo think it intended to cover all cases where the following conditions are met: 1, that the officer was duly commissioned; 2, that he entered upon duty as such; 3, that he was not mustered “ within a period of not less than thirty days,” “ by reason of being’ killed in battle, captured by the enemy, or other cause beyond his control, and without fault or neglect of his own.” In such case the law distinctly says: “ The Pay Department shall allow such officer the full pay and emoluments of his rank from the date on which such officer actually entered on such duty as aforesaid.” The case at bar meets the requirements of the law in all respects. Henry was not u killed in battle; ” he was not “ captured by the enemy; ” but he was, u without fault or neglect of Ms oiunf and by “ cause beyond his control,” to wit, by refusal of the proper mustering officer to muster him, prevented from being mustered, and was thus deprived of pay. The inquiry would seem to narrow itself to the one question, Did Congress intend to embrace cases like Henry’s in the general provisions above quoted ? Henry was denied muster. The cause assigned for the denial was that the company was reduced below the minimum, i. e., had not over sixty-four privates in it. The cause, however, is not, we think, important, so that it was u beyond the control ” of Henry, and that the findings settle in clear terms; and, further, that the non-muster was <{ without fault or neglect of his ownf and this also the findings settle in clear terms. If the findings nowhere disclosed the reason for the refusal to muster, there can be no doubt that Henry should recover, for they are in the words of the statute, and cover every requirement laid down therein. The law is conceived in the most liberal spirit, and, should be so construed. It is remedial, and should for that reason be liberally construed. The act was passed by Congress after the war had ended, and, being remedial, was made retroactive, with a view of enabling officers to collect pay for service where it had been denied them under the regulations of the War Department during service, and was intended for no other purpose than to meet the prohibitions of those regulations. In any other view the law was unnecessary.
    Where the officer was entitled to muster under the regulations and orders of the Department, the officer was mustered at the time, and received bis pay, or be was mustered by tbe Department upon application, and tbe muster was antedated so as to give tbe officer bis pay$ but in no case was this done where tbe muster would conflict^ with existing- orders. Hence tbe interposition of Congress to provide for the payment of a class of claimants whose cases could not be adjusted by tbe Department without a violation of its own regulations and orders. Congress seems only to have required that tbe officer did duty under commission, and was not mustered, through no fault of his own, and the act relieved the officer against the existing regulations of the Department. It was these cases which gave rise to the law.
    Admitting for the argument that there was no authority for the muster at the time he was commissioned, and that therefore Henry was not entitled to be paid as an officer, was it not competent for Congress afterward to recognize his service and pay him for it? This claim upon Congress stood on higher grounds than even the bounties so freely bestowed, and one cannot be set aside sooner than the other by departmental construction. The question is not what Henry’s rights were in 1863, but what they are now.
    It is a well-settled canon of the law that a statute must be given some practical effect when it is possible. What practical effect would flow from extending it exclusively to cases where the company had more than the minimum number of enlisted men when the officer received his commission ? None whatever ; for all such cases are already provided for, and were when the law passed. Again, how can this court know wliat classes of cases'Congress had in mind when the language other cause beyond his control ” was used ? If the court may impose a condition that the company must have been above the minimum at the time, where is the limit to conditions that may be added to the statute ? In point of fact, such a condition would not only be unjust to the officer, but dangerous to the service. Eegiments and companies in active service in time of war cannot be kept above the minimum, and while companies are depleted, officers suffer also. The needs of the service require officers as long as soldiers have duty to perform. Often companies are left without commanding officers, and in the case at bar Henry, though a second lieutenant, commanded the company in several engagements. However wise the rule, and from whatever cause, that prohibited muster in such cases, Oongress afterward saw tbe justice of relieving tbe officers, and this relief ought not now to be taken from them. Quantum meruit may have governed Congress; but whatever the governing motive is no concern of the court; it is the intention alone which may be inquired into.
    If the plain meaning of the law is not to be followed, and it is permissible to search outside for its interpretation, the history of the act is conclusively in defendant’s favor
    It will be perceived, upon examination of the original House resolution, that there were two clauses stricken out by the Senate, and finally in the conference committee, which, if they had been retained, would have given authority to the Department to refuse payment in these cases, for Congress would then have enacted the very exception interpolated into the law by the Department. The first clause, in the fourth and fifth lines of the original joint resolution, is as follows :
    “And was entitled by law to be mustered in as such.”
    And the second one, in the eighth line :
    “ Was not mustered according to the regulations.”
    As we read the resolution and the debate, the only object perceivable for striking out these clauses was to remove the barrier against the payment of an officer for services actually performed. It was well known to Congress and the Department that many officers were commissioned and ordered to perform the duty of commissioned officers; were clothed with the powers of commissioned officers; had imposed upon them the responsibilities of such officers; were subject to and were actually tried by court-martial as officers, and, in short, were in every respect treated by the Government as officers, with the single exception as to pay. And the joint resolution was manifestly for no other purpose than to provide means by which officers could be paid for valuable services rendered.
    
      Mr. Assistant Attorney-General Sill for the United States, appellants:
    The Court of Claims finds that—
    “ 1. The placing on duty alleged in this case was merely by the order of the colonel of the regiment.
    “2. From August, 1863, to October, 1864, no company of said regiment had a minimum number of men.”
    
      By tbe act of March 3,1863, section 20, (12 Stat. L., pp. 734, 735,) it is enacted: ■
    “ That whenever a regiment is reduced below the minimum number allowed by law, no officers shall be appointed in such regiment beyond those necessary for the 'command Of such reduced number.”
    And the claimant, in his petition, bases his elaim and argued his case in the court below, solely upon the joint resolution of July, 1866; and the question is, whether that resolution applies to officers who Were actually commissioned and entered upon duty according to 'their' commissions; but could- not be mustered in during the time for which they served without a violation of the law. It is submitted that this is not the proper construction of the statute. The language of the first part of the resolution is, That in every case in which a commissioned officer actually entered on duty as such/commissioned officer, but by reason of being killed in battle, capture by the ehemy, or other oause beyond his control,” was hot mustered in, &c. Applying the ordinary rule of interpretation, that general words are' to be construed as ejusdem genéris, it would seem to be clear that the other causes referred to in the resolution, are causes similar in nature to those particularly mentioned, namely, by reason of being killed in-battle, or capture by the enemy.
    The’joint resolution of July 11, 1870, section 3, (16 Stat. I/., pp. 385, 386,) enacts, that the resolution of July 28, 1866, shall not be construed to apply to cases in which, under the laws and army regulations existing at that time, there could have been no lawful muster into service even after the actual receipt of the commission.” This resolution, which would seem to have been enacted for the purpose of removing any doubt upon the subject, is a legislative construction of the act, which ought to be followed, and seems to have been the construction uniformly placed upon the first resolution by the War Department. (See United States v. Alexander, 7 C. Cls. K., p. 205.)
    
      
      Owing probably to the obscurity of the printed copy of the record, the Supreme Court has manifestly overlooked the specific fact found at the request of the defendants below, viz, that from August, 1863, to October, 1864, “ no company in said regiment had a minimum number of men.”
    
   Mr. Justice Miller

delivered the opinion Of the court:

This is an appeal by the United States from a judgment of the Court of Claims in favor of Anthony W. Henry for thé sum of $1,118.11... The claim of Henry is based upon the: following joint resolution of Congress, approved: July 26, 1866: ,. .

Be it resolved, &c., That in every case in, which a commissioned officer actually entered on duty as such commissioned officer, but, by reason of being killed iii battle, captured by the, enemy, or other cause beyond his control, -and without fault or neglect of his own, was not mustered within a period of not less than thirty days, .the Pay. Department.shall allow to such officer full pay and emoluments of his rank, from the date on which such, officer .actually entered on such' duty ms aforesaid, deducting from the amount paid in accordance with this resolution all pay actually received by such officer for such period." (lá Stat. L., p. 368.)

The Court of Claims find that the claimant was duly commissioned as second lieutenant in the Second Itegiment of Ohio Volunteer Infantry by the Governor of that State, which commission he accepted on the 15th day of August, 1863; that he actually served and performed the duties of that office from that day until October 10,1864, when he was mustered out of the service*with his regiment, and was during all that time recognized as such officer by his superior officers, and commanded the company in several battles. He was paid only the-amount due to the rank and service of first sergeant of infantry.

The reason why he was refused pay for his service as lieutenant is, that he had never been mustered into the service as a lieutenant; and as he offered himself repeatedly for such muster, and produced his commission, his counsel argue that he comes within the provisions of the joint resolution, since he entered on the duties of the office and performed the same, and his failure to be mustered in was without fault or neglect of his, and was from a cause beyond his control.

There is no question but that the claimant’s case comes within the strict letter of the joint resolution.

The coünsel for the United States, however, argues that .the joint resolution can only have application to the case, of an officer duly commissioned, and entitled by, 1cm to be mustered■ into service as stick officer, and that the finding of the court shows that claimant was not entitled to be mustered in when he accepted his commission and offered himself for that purpose.

This would raise a very interesting question, and one which might not be easy of decision, if’ the record in this case fairly presented it. There is undoubtedly strong reason why Congress should have provided full pay for an officer who, holding a commission from the proper source, was given command and actually served as such officer, and had his rank recognized by all his superiors, though in point of fact not mustered in as such or entitled to be; and it is certain he would not be entitled to such pay without the enabling act.

But we do not find in the record, the evidence, or any finding of the court, that claimant was not entitled to be mustered into the service. The finding of the Court of Claims on that subject is as follows:

“ Upon receipt of the commission from the governor of Ohio, the claimant presented himself for muster, as second lieutenant, to the proper mustering officer of his division, but was refused such muster, the mustering officer alleging that Company D, to which the claimant was assigned, was reduced below the minimum number, and that, therefore, he was not entitled to be mustered.”

Counsel for the Government, assuming that what the mustering officer alleged is to be treated here as an established fact, further assumes that that fact brings his case within the language of section twenty of the act of March 3,1863, (12 Stat., 734,) to wit: That whenever a, regiment is reduced below the minimum number allowed by law, no officer shall be appointed to such regiment beyond those necessary for the command of such reduced number.

But the argument is open to more than one fatal objection.

1. The claimant having shown that he was regularly commissioned and served as a lieutenant, and was, without fault of his, refused a muster, so that he comes within the literal terms of the joint resolution, if any fact is relied on to defeat his claim, it should be specifically found and stated by the Court of Claims. This is not done by a finding of that court, that the mustering officer alleged that Company D was reduced below the minimum number. If the fact that the company was below the minimum was important in the case, it should have been found as a fact by the court, and not stated merely as the alleged reason of the officer for refusing to muster in the claimant. The muster-roll of the company was within the control of the Government, and would have settled the fact, one way or the other, beyond dispute.

2. The act relied on by counsel forbids tlie appointment of ■officers in a regiment, when it is reduced below the minimum number allowed by ltiw, beyond those necessary for the command of such reduced number.

It is quite consistent with a reduction of Company D below the minimum for a company that the regiment was not below the minimum for a regiment. Indeed, it is unreasonable to suppose that, because a single company is reduced below the minimum, the regiment is for that reason to be so treated, and to have no more officers appointed in it until that company is filled up.

There is no finding, nor any allegation, in the present case, that the regiment was below the minimum, and therefore this act does not apply; nor are we pointed by counsel to any law or regulation of the service which fixes what is the minimum of a regiment of volunteer infantry; nor does the Court of ■Claims find any facts from which, if we had such a law or regulation before us, we could decide whether this regiment, or indeed this company, was in fact below the minimum as established by law at the time the claimant offered himself for muster.

Under these circumstances, the judgment of the Court of Claims must be affirmed.  