
    ADAM MYERS v. THE UNITED STATES.
    [No. 14441.
    Decided April 27, 1885.]
    
      On the Proofs.
    
    In August, 1864, a sergeant is commissioned as lieutenant in tlie Missouri Stato cavalry. He is not mustered in, but performs the duties of lieutenant. Both regiment and company are below the minimum.
    I. Where an officer’s claim for pay is barred by the statute of limitations in a case where he was commissioned but not mustered in, his right of action depends upon and is limited by the Act 3dJune, 1884(23 Stat. L., p. 34).
    II. The right of officers commissioned but not mustered in is limited by the act 1884 to those officers whose commissions bear date prior to June 20, 1863, or to those whose commands were not below the minimum number required by existing laws and regulations.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. On August 9,1804, the claimant, while serving as sergeant in Company E, Third Regiment Missouri State Militia Cavalry, was commissioned first lieutenant of said company by the governor of Missouri, to rank from July 8, 1864.
    II. On the same day James M. Roberts, who had previously been first lieutenant of the company, was commissioned captain by the governor of Missouri, to rank from said July 8,1864, in place of Capt. George L. Herring, who had died June 10 of that year.
    III. The claimant was never mustered into service as such first lieutenant, but from July 9, 1864, to April 14, 1865, when he was mustered out, he performed the duties of first lieutenant of said company, while said Roberts performed the duties of captain. It does not appear that the failure to be mustered in was the result of any fault or neglect of his own.
    IY. During the time he served as first lieutenant both the regiment and his company were below the minimum then required by existing laws and regulations.
    The following findings are made at the request of the claimant’s counsel:
    Y. The following general orders were issued by the War Department at their respective dates:
    “ [General Orders No. 82.]
    “War Department,
    “Adjutant-General’s Oeeice,
    “ Washington, Juno 20, 1863.
    “ I. Under the requirements of section twenty of the act ‘for enrolling and calling out the national forces, and for other purposes,’ approved March 3,1863, it is ordered that the following rules shall govern whenever a regiment is 4 reduced below the minimum number allowed by law ’ but is of a strength above half the maximum:
    “ 1. Infantry. — Bach regiment will be deprived of the colonel and one assistant surgeon. Bach company — provided it is reduced below the minimum — will be deprived of the second lieutenant.
    “ 2. Cavalry. — Each regiment will be deprived of the colonel, one major, and one assistant surgeon. Each company — provided it is reduced below the minimum — will be deprived of the second lieutenant.
    “3. Artillery. — Bach regiment will be deprived of the colonel, one major, and one assistant surgeon. Each company (battery) — provided it is reduced below the minimum — will be deprived of the additional officers authorized to be added at the President’s discretion. (See G. O. 110, A. G. O., 1863.)
    “There being no minimum for artillery fixed by existing orders, the minimum for the object herein named will be 1,041 aggregate for a regiment and 86 aggregate for a battery.
    
      “ II. In reaching the reduced standard herein fixed all officers in the enumerated grades — note properly in service — will be retained until the said grades become vacant by the usual casualties of the service. After the reductions are thus made, the reduced proportion will be maintained, and no appointments to vacancies — in the grades enumeratedJ-vti\\ be made, except upon notification from the commissary of musters for the department or corps that the regiment is above the minimum-. To this end the commissary of musters will report weekly to the governor of the State or appointing power, through the commanding general of the department or corps. The said report will embrace the designation of the regiment — or other organization — the name and rank of the party creating the vacancy, with the date and cause thereof. If an order has been issued in the case, its number, date, and source must be given.
    “Commissaries and assistant commissaries of musters will be held accountable that no musters are made in violation of this paragraph.
    “III. The following is the section of the act referred to and under which the foregoing is ordered:
    “ 1 Sec. 20. And be it further 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.’
    “ IV. No provision herein is intended to interfere with the requirements of General Orders 86, current series, from this office, when regiments have been, or may become, 1 reduced to. one-half of the maximum number prescribed by law.’
    “ By order of the Secretary of War.”
    “[General Orders No. 96.]
    “WAR DEPARTMENT,
    “Adjutant-General’s Oeeioe,
    “ Washington, November 7, 1861.
    “ Authority to raise a force of State militia, to serve during-the war, is granted, by direction of the President, to the governor of Missouri. This force is to co-operate with the troops in the service of the United States in repelling the invasion of the State of Missouri and in suppressing rebellion therein. It is to be held, in camp and in the held, drilled, disciplined, and governed, according to the Eegnlations of the United States-Army and subject to the Articles of War. But it is not to be ordered out of the State of Missouri, except for the immediate defense of the said State.
    “ The State forces thus authorized will be, during such time as they shall be actually engaged as an embodied military force in active service, armed, equipped, clothed, subsisted, transported, and paid by the United States, in accordance with the Eegnlations of the United States Army and such orders-as may from time to time be issued from the War Department,, and in no other manner; and they shall be considered as disbanded from the service of the United States whenever the-President may so direct,
    “ In connection with this force, the governor is authorized to appoint the following officers, who will be recognized and paid by the United States, to wit: One major-general, to command the whole of the State forces brought into service, who shall be the same person appointed by the President to command the United States Military Department of the West,. and shall retain bis commission as major-general of tbe State forces only during bis command of tbe said department; one adjutant-general, one inspector-general, and one quartermaster-general, eacli with tbe rank and pay of a colonel of cavalry; three aides-de-camp to tbe governor, each with tbe rank and pay of a colonel of infantry; brigadier generals, at the rate of one to a brigade of not less than four regiments; and division, brigade, and regimental staff officers, not to exceed in numbers those provided for in the organization prescribed by the act approved July 22,1861, for the employment of volunteers/ nor to be more highly compensated by the United States, whatever their normal rank in the State service, than officers performing the same duties under that act.
    “ The field officers of a regiment to be one colonel, one lieutenant-colonel, and one major; and the officers of a company to be one captain, one first and one second lieutenant.
    “ When officers of the said State forces shall act in conjunction with officers of the United States Army of the same grade,, the latter shall command the combined force.
    “All disbursements of money made to these troops, or in consequence of their employment by the United States, shall be made by disbursing officers of the United States Army assigned by the War Department or specially appointed by the President for that purpose, who will make their requisitions upon the different supply departments in the same manner for the Missouri State forces as similar requisitions are made for other volunteer troops in the service of the United States.
    “ The Secretary of War will cause any additional regulations that may be necessary for the purpose of promoting economy, insuring regularity of returns, and protecting the United States from fraudulent practices to be adopted and published for the government of the said State forces, and the same will be obeyed and observed by all in office under the authority of the State of Missouri.
    “By order.”
    VI. One hundred and fifty-eight commissioned officers of the Missouri State Militia, in service March 3, 1865 (including one officer dismissed the service June 30,1865), remained in service until April '9,1865. Before the passage of the act of June 3, 1884, chapter 63 (23 Stat. L., 34), sixty-five commissioned officers of the Missouri State Militia received the three months’ additional pay proper provided by the act of March 3, 1865.
    VII. The companies composing the Third Begiment Missouri State Militia Cavalry were organized to serve during the war in Missouri.
    VIII. The claimant has actually received from the United States, for his services in Company E, Third Regiment Missouri State Militia Cavalry, from July 10,1864, to April 13,1865, the sum of $575.35. The total pay aud allowance to which a first lieutenant of cavalry would be entitled during the same time, including three months’ additional pay proper, is $1,258.98.
    
      Mr. W. B. King for the claimant.
    
      Mr. F. H. Howe (with whom was the Assistant Attorney-General) for the defendants.
   Richardson, Ch. J.,

delivered the opinion of the court:

The claimant was a sergeant in Company E, Third Regiment of Missouri State Militia Cavalry Volunteers, when, on the 9th of August, 1864, the captain of his company having died, the first lieutenant was appointed captain, and the claimant was appointed and commissioned by the governor of Missouri as first lieutenant, to rank from July 8, 1864.

Thereafter he acted as and performed the duties of first lieu- ■ tenant until April 14,1865, when he was mustered out, although he was never mustered in as first lieutenant. That he was not so mustered in, however, does not appear to have been his fault. He was paid only as a sergeant, and did not receive any extra pay on being mustered out.

He now claims the difference between the pay of a sergeant and that of a first lieutenant while he was performing the duties of the latter office, and also three months’ extra day due, as he alleges, upon his muster-out.

The claims are founded upon the following legislation of Congress: Act of July 22, 1861, ch. 9, sec. 4 (12 Stat. L., 269); act of March 3, 1865, ch. 81, sec. 4 (13 Stat. L., 497); act of July 13, 1866, ch. 181 (14 Stat. L., 94); joint resolution of July 26, 1866, No. 87 (14 Stat. L , 368); joint resolution of July 11, 1870, No. 102 (16 Stat. L., 385); act of June 3, 1884, ch. 63 (23 Stat. L., 34).

Whether or not the claimant might have had a good cause of action at some time previous to the passage of the act of 1884 is not material in the present case, because it accrued, if at all, more than six years before the filing of his petition, and is barred by the statute of limitation, Revised Statutes, section 1069.

The claimant’s case must stand or fall by the provisions of the act of 1884 (23 Stat. L., 34), the parts of which material to the issue are as follows :

“Be it enacted, That the joint resolution approved July eleventh, eighteen hundred and seventy, entitled ‘ Joint resolution amendatory of joint resolution for the relief of certain ■officers of the Army,’ approved July twenty-six, eighteen hundred and sixty-six, is hereby so amended and shall be so construed that in all cases arising under the same any person who was duly appointed and commissioned, whether his commission was actually received by him or not, shall be considered as commissioned to the grade therein named from the date when his commission was actually issued by competent authority, and shall be entitled to all pay and emoluments as if actually mustered at such date.
"Provided, That at the date of his commission he was actually performing the duties of the grade to which he was so commissioned, or, if not so performing such duties, then from such time after the date of his commission as he may have actually entered upon such duties. * * *
“And provided further, That this act and resolution hereby amended shall be construed to apply only in those cases where the commission bears date prior to June twentieth, eighteen hundred and sixty-three, or after that date when their commands were not below the minimum number required by existing laws and regulations.” * * *

The question is whether or not the claimant brings his case within the terms of this act. The second proviso declares that the act itself and the resolution thereby amended shall apply ■only in those cases where the commission bears date prior to ■June 20, 1863, or after that date when their commands were not below the minimum number required by existing laws and regulations.

By finding i it appears that the claimant’s commission bore date August 9, 1864, more than a year subsequent to the time mentioned in the act, and by finding iv it is shown that during the time for which he claims pay and bounty both the regiment and company to which he belonged were below the minimum then required by existing laws.

These facts are conclusive against the claimant’s demand .for any benefits under that act, and make it unnecessáry to consider the questions argued at the trial in relation to the status of the Missouri State Militia and the validity of the claimant’s appointment as first lieutenant.

All the officers of his regiment and company, even although rightly atul legally commissioned, whose commissions did not antedate June 20, 1863, even if the Missouri State Militia, formed part of the United States Volunteers contemplated by the acts of Congress referred to, are excluded from the benefits, of the act by the second proviso.

The petition is dismissed.  