
    LIEUTENANT HENRY’S CASE. Anthony W. Henry v. The United States.
    
      On the Proofs.
    
    
      A company in the Second Ohio Volunteers, during the war of the rebellion, becomes reduced below the minimum, number entitling it to a second lieutenant. The claimant being first sergeant of that company, and the office of second Imiten-
      
      ant being vacant, is commissioned as such by the governor of Ohio. Be is also assigned to duty in that company by the colonel of the regiment. He applies to be mustered in, but the mustering officer refuses. Nevertheless, he remains on duty, being the only commissioned officer with the company, commanding it several times in battle, inclining all the responsibilities and performing all the duties of a commissioned officer. The Pay Department refuses to pay him except as first sergeant.
    
    When one is commissioned as second lieutenant in a volunteer regiment by the governor of the State whence the regiment came, and is assigned to duty by the colonel commanding, in a company of which he has been first sergeant, and after applying for muster-in and being refused, continues to incur all the responsibilities and perform all the duties of a commissioned officer, commanding the company in battle and being the only officer attached to it, he is entitled to be paid as such, notwithstanding that at the time he was assigned to duty, it had fallen below the minimum number entitling it to a second lieutenant.
    
      Messrs. Cliipman and Hosmer for tbe claimant:
    Tbe following are stated as tbe facts in tbis case, upon wbicb tbe claimant relies:
    1st. That tbe claimant, Anthony W. Henry, was a first sergeant of Captain James Warnock’s company, (D,) Second Begiment Ohio Volunteers, enrolled as a corporal on tbe 19tb day of August, 1861, and was discharged from tbe service of tbe United States tbe 10th day of October, 1864.
    2d. That on or about tbe 15th day of August, 1863, be received a commission from Governor Tod of Ohio, appointing him a second lieutenant in said regiment.
    3d. Upon receipt of tbis commission be was ordered by bis colonel to go to tbe mustering officer of tbe division, to be mustered as second lieutenant. He applied to tbe mustering officer for muster, and was refused, for tbe reason that tbe company had not tbe minimum. Application was made on behalf of claimant for muster by Captain Warnock, and by tbe colonel of tbe regiment. But tbe same reason for not mustering him was given, viz, that there was not a sufficient number of enlisted men in tbe company.
    4th. That tbe claimant was ordered by bis colonel to report to tbe captain of Company D, for duty as second lieutenant, and to perform tbe duties of that office as if mustered in. He did so, and from that time until tbe close of bis service be performed all the duties of a commissioned officer in the company, and was recognized as such by the officers and enlisted men of the company'and regiment. At the time the commission was received, there was but one commissioned officer with Company D; the only lieutenant then in commission being absent on duty with the signal corps, where he remained from the month of September, 1862, until he was killed at Cliicka-manga, about the 20th of September, 1863. The claimant, Henry, was in several engagements, acting in the capacity of lieutenant of his company, and commanded the company at Mission Eidge. •
    5th. The claimant performed the duties of second lieutenant, ■promptly, faithfully, and with ability, to the satisfaction of his superior officers.
    6th. The fclaimant was always ready and anxious to be mustered in, and it was no fault of his that he was not mustered as second lieutenant upon his commission.
    7th. The claimant’s name appears on the muster-rolls up to the time he was mustered out as first sergeant. It was against orders to.enter his name as a commissioned officer, and hence the muster-rolls do not show him to have been mustered.
    8th. At the time claimant received his commission and requested to be mustered as a lieutenant, there were sixty-two enlisted men on the rolls of Company D.
    9th. After mustfer-out of claimant, he applied to the proper department for pay as second lieutenant, from August 15,1863, to October 10, 1864, the period of his service as lieutenant, which was denied, him.
    This suit is based upon the first section of the Joint Resolution, July 26,1866, entitled “ Joint Resolution for the relief of certain officers of the army,” as follows:
    
      u Be it resolved, &o., 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, 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 Avhich such officer actually entered on such duty as aforesaid, deducting from the amount paid in accordance with this resolution all pay actually received by such officer for such period.”
    
      This act of Congress was passed to provide for the payment of commissioned officers who had entered upon duty prior to muster, but wbo, under existing' orders of the War Department, could not be paid for such service. (14 Stat, L., p. 368.)
    
      First point. — The law is clear, and admits but one construction. In such a case the court has no other duty but to enforce it. What is its fair interpretation ? We think it intended to cover ail cases where the following couditions are met: 1, that the officer was duly commissioned; 2, that he entered upon the 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.
    
      Second point. — If this be not true, and it is permissible to search outside of law for its interpretation, the history of the act is conclusively in our favor. We read from the proceedings of the House of Representatives, (1st sess. 39th Cong’., Cong. Globe, vol. 57, p. 1604:)
    “Mr. Bing-hasi, from Committee on Military Affairs, reported joint resolution for the relief of certain officers of the army; which was read a first and second time.
    “The joint resolution provides that in all cases in which a commissioned officer actually entered on duty as such commissioned officer, and loas entitled by law to be mustered in as such, but by reason of capture by the enemy, or other cause beyond his control, and without fault or neglect of his own, loas not mustered according to the regulations, within a period of not less than thirty days, the Pay Department shall allow such officer full pay and emoluments from the date on which sueh officer actually entered on such duty as aforesaid, deducting the pay actually received by such officer for such period.
    “ Mr. Hale. I beg to inquire of the gentleman from Ohio whether this will cover the case of officers who served in their promoted rank, and died before being mustered in.
    “ Mr. BinghAM. It does, within the words ‘ or other cause,’ if such cases are not already provided for.”
    
      
      Third point. — It is worthy of notice that, by the act of Congress, approved July 22, 1861, (12 Stat. L., 269,) volunteer officers are placed upon the same footing in all respects as regular officers, and that this footing was not changed during the war in any regard to affect this case. Now, it is well settled that regular officers are entitled to pay from the date of commission.
    It is urged by the Axljutant General that the rolls furnish no evidence that the claimant was in the service as a commissioned officer during the period claimed.. “ He appeared on all rolls of Company D, Second Ohio Yolunteers, covering said period, as first sergeant, present for dutyand he urges that these rolls are the best and only evidence of the fact, and that, therefore, our claim for service he rendered as a commissioned officer is untrue in point of fact. We answer, the rolls show this for the best of reasons.
    Paragraph 8, General Orders No. 48, February 25, 1863, says:
    “No person will be taken up on any muster-rolls as an officer of any grade until mustered into the service of the United States as such in that grade, whether he be commissioned by the governor or not. * * * * Paymasters will closely observe and report all violations of this paragraph.”
    Under this provision it would have been a punishable offence to have taken up the claimant upon the muster-rolls as an officer, aud he was not so taken up because his superior officers chose not to violate this order. Yet we are now told that he was not commissioned and did not serve as a commissioned officer, because the rolls are silent upon this subject.
    Another objection is made that Company D, of the. Second Ohio Yolunteers, had 'less than the minimum number, from August 15th, 1863, to October 10th, 1864, and that under General Orders No. 182, series of 1863, from the War Department, based upon the 20th section of the act of March 3d, 1863, the company was not entitled to a second lieutenant. Now, if we turn to the 19th and 20th sections of the law referred to, it will be seen that the act relates to the reduction of the regiment below the minimum, and provides for the consolidation of the companies of such regiments and the muster-out of supernumerary officers, and that the act nowhere refers to companies being reduced below the minimum, and the prohibition of appointment of officers to such companies. And if we turn to tbe General Order No. 182, of June 20th, 1863, it will be seen that no mention is there made of minimum companies — the object of that order being solely to provide for the consolidation of regiments “reduced below the minimum number allowed by law.” And if we turn also to General Orders, No. 86, of April 2d, 1863,. based upon the same sections, 19 and 20, of the act, of March 3d, 1803, it will there be seen that provision is made only for the consolidation of companies into new regiments, where the regiments themselves are reduced below the minimum.
    I find, therefore, upon this examination, that the War Department has wholly misinterpreted the law and its own orders, and in now withholding, from officers commissioned after the reduction of the company below the minimum, pay as such officers, the department does it by superadding to the law and its own orders. Now, any one at all familiar with military service must know that, so long as the company retains its organization as a company, it must be officered; and this is true even though it be but a skeleton.
    In view, therefore, of the fact that there seems to be a plain statute, as in the Joint Resolution of 1866, providing for the payment of officers commissioned who rendered service without muster, and that there is no law or valid regulation against such payment, the claimant ought to recover.
    
      Mr. Assistant Attorney General Talbot for the defendants:
    The claimant serving as first sergeant in Company D, First Ohio Volunteers, was, on the 10th day of August, 1863, commissioned by the governor of Ohio as second lieutenant in that regiment.
    From August, 1863, to the muster-out of the regiment, October 10, 1864,'no company whatever of that regiment had a minimum number of men. Parol evidence is introduced to show that the claimant performed duty as second lieutenant, being ordered on such duty merely by the colonel of the regiment. But he ivas never mustered into service as such lieutenant. The rolls of the regiment in the War Department netmr bear his name as that of a second lieutenant, and, on the other hand, he was, on the 10th day of October,' 1864, discharged from the military service as “ first sergeant of Captain James Warnock’s company, (D,) Second Regiment of Ohio Infantry Volunteers.”
    Upon .these facts I make the following point,s:
    The claimant was—
    I. Never lawfully commissioned as second lieutenant.
    II. Nor did he ever actually enter on duty as such, and therefore is not within the scope of the Joint Besolútion July 26, 1866.
    1st. The Act July 22, 1861, authorizing the employment of volunteers, (12 Stat. L., 268,) prescribed in its second section what should constitute a regiment and a company of infantry.
    The regiment was to be composed of ten companies, each company to consist of three officers, sixteen other enlisted men, “ and from sixty-four to eighty-two privates.” Less, than sixty - four privates would not constitute a company of infantry to which three officers could be lawfully commissioned.
    Of the Act March 3, 1863, (12 Stat. L., 731,) the twentieth section (p. 734) reads as follows: “ 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.”
    The providing of officers for commands not brought up to, or reduced below, the minimum, was, as to companies, regulated as appears in the following extract from General Orders No. 61, issued August 19, 1861, viz:
    “ When one-half a company has been mustered into service, the first lieutenant thereof can also be mustered in; and when the organization of the company is completed, the captain and second lieutenant can be so mustered in.”
    Under these provisions of law, the governor of Ohio had no authority to commission a second lieutenant in the Second Regiment Ohio Volunteer Infantry.
    The whole authority of the governor to appoint officers of volunteers in the service of the United States was derived from the statutes of the United States, and not elsewhere; these statutes not authorizing him to appoint except to a command designated in the statutes themselves.
    2d. This appellee never properly entered upon duly as second lieutenant.
    There is no rule of the service better known than that an officer cannot put himself upon duty, can properly enter upon duty only by the direction of competent authority.
    This principle thus stated applies alike to officers who have been sometime in the service, under the actual commission, and to those just entering upon duty under recent appointments.
    But there is a marked distinction between the two cases. The rule is much stricter in regard to the latter than in regard to the former.
    Subordinate regimental officers already in service may be assigned to any proper duty in the regiment by its commanding officer, the colonel. But the act of accepting into the service of the United States an officer recently commissioned by another authority than that of the United States is not within the scope of a regimental commander’s duty or authority.
    The colonel of this regiment never reported to his superior authorities this appellee as acting under the commission by .virtue of which he now claims pay. He constantly reported him as a non-commissioned officer; as such non-commissioned officer alone he was known to the brigade division, and other superior officers, up to the War Department and commander-in-chief.
    If he had been lawfully upon duty as second lieutenant, it would have been lawful to report him as such, and unlawful to report him otherwise.
    As first sergeant this appellee was known to the United . States, and paid by them. And as such, he received his pay for a period of more than twelve months, thus actually acknowledging to the United States the grade in which he actually served, that of a non-commissioned officer.
    It was not for cases like this that the statute of July 26,1866, was passed. The intent of that resolution was siurply to waive the mere formality of a muster-in, and not'to waive the essential qualifications to entitle a person to be mustered in as an officer in the military service of the United States.
    But whatever doubt there might be about the construction of that resolution Congress itself has removed by the joint resolution of July 3.1,1870.
    This resolution in its first section confines the benefits of that of July, 1866, to cases of commissions “ issued by competent authorityand its third section expressly supports this argument. Its words are: “ That this resolution shall not be construed to apply to cases in which, under the laws and Army Regulations existing at the time, there could have been no lawful muster into service, even after the actual receipt of the commission.”
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover $1,118 11, for a military officer’s pay.

The claimant belongs to that large class of volunteer soldiers who were commissioned by the governors of their respective States as regimental officers; who were assigned to duty as commissioned officers; who served as such, performing the duties, incurring the dangers, bearing the responsibilities; but who were refused muster-in, and consequentpay, because the company to which each was assigned had fallen below the minimum number prescribed by the War Department.

In this case it appears that on the 10th of August, 1863, the claimant was commissioned by the Governor of Ohio as second lieutenant in the Second Ohio Volunteer Infantry, he then being the first sergeant of Company D in that regiment. The claimant reported for duty to the commanding officer of the regiment, and was assigned by him for duty as second lieutenant in Company D. He served as such until the muster-out of the regiment, and during that time was recognized as a commissioned officer. A part of the time he was the'only commissioned officer with the company, and commanded it more than once in battle. When he presented himself for muster-in the mustering officer refused the muster, because Company D had become reduced below the minimum. The claimant was never mustered in as lieutenant, and never paid.

'To obviate this want of muster-in his counsel relies upon the Joint Resolution for the relief of certain officers of the army, 26 th July, I860, (14 Stab. L., p. 368.) It is as follows: ,

uJBe it resolved, die., 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, 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 as aforesaid, deducting from tlie amount paid in accordance with this resolution all pay actually received by such officer for such period.”

It is replied by the Assistant Attorney General that thejoint resolution applies only to officers who might have been mustered in under existing law and regulations, but that this claimant could not have been, and therefore was not prevented from being, in the sense of the resolution, by a “cause beyond his control.”

The court is not unmindful of the learned argument addressed to it by the Assistant Attorney General, but it is also remembered that this suit affects not the claimant alone, but a class of citizens who deserve well of their country, and who their country desires should receive the full measure of legal justice to which they may be entitled. For them there is no appeal to the Supreme Court; for the defendants there is. If this suit be decided adversely to the claimant by this court, the decision will be final against all of these soldiers. They are men who rose from the ranks by hard fighting and good conduct, earning their commissions before they got them, and working for them after they came,- and it seems a strange anomaly that six years after the war ended such men should be driven to seek the fruits of their promotion in a court of justice. Without expressing any opinion on the construction of the statutes, we will aid these officers toward obtaining the final decision of the court of last resort by an immediate decision.

The judgment of this court is, that the claimant recover his pay as second lieutenant, amounting to $1,118 11.  