
    HENRY S. TERRELL v. THE UNITED STATES.
    [No. 23842.
    Decided December 12, 1904.]
    
      On the Proofs.
    
    The claimant’s regiment receives a furlough of 30 days at the close of the Spanish war, but he is detained for special service ancl is promoted during the furlough period. The question in the case is whether he can recover his extra pay as of the rank which he held at the time of muster out.
    I. Where, at the close of the Spanish war, an officer, detained for special duty was promoted during the furlough period of his regiment, he can not recover the pay of the rank- which he held when mustered out, but only the pay of the rank which he actually held during the furlough period.
    II. There is a difference between the Acts 18th January, 1899, 26th May, 1900 (30. Stat. L., p. 784; 31 id., 217), and statutes granting extra pay at the close of former wars.' The two statutes extend only to the pay which an officer or soldier would have received if his regiment had not been furloughed.
    
      The Reporters’ statement of the case:
    The following are the facts of the case, as found by the court:
    I. The claimant herein, Henry S. Terrell, ivas enrolled in the military service of the United States, in the First Regiment Connecticut Artillery Volunteers, as a second lieutenant in Battery C, on May 7, 1898, and was mustered out as a first lieutenant.
    Said claimant served honestly and faithfully within the limits of the United States and was honorably discharged on the 29th clay of October, 1898, on muster out of his regiment.
    II. On the 20th clay of September, 1898, a furlough of thirty clays for said regiment was authorized under General Orders, No. 130, A. G. O., 1898, and amendatory circulars. The above-named claimant did not receive such furlough, but was detained for duty and actually performed duty during the furlough period, assisting in making out muster-out rolls, discharge certificates, closing up the accountability of the ordnance officer, settling quartermaster and commissary property accounts, and had supervision of men retained in camp, and was at all times subject to the orders of his superior officers until final muster out.
    Claimant was promoted to be a first lieutenant October 19, 1898.
    Upon the foregoing findings of fact the court decided, as. conclusions of law:
    1. If the claimant is entitled to recover on the basis of the pay he was receiving during the furlough period, the judgment should be for one hundred and sixteen dollars and sixty-seven cents ($116.67) ; if on the basis of the pay he received at date of muster out, then judgment should be for one hundred and twenty-five dollars ($125).
    2. The claimant is entitled to a judgment for one hundred and sixteen dollars and sixty-seven cents ($116.67).
    
      Mr. William B. King for the claimant. Geo. A. and W. B. King were on the brief.
    
      Mr. George M. Anderson (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Wright, J.,

delivered the opinion of the court:

The question that arises for decision upon the findings of fact herein is the grade to which the extra pay of the officer attaches in consequence of his having been honorably discharged without furlough. The correct solution of the question, as in all cases arising upon the provisions of a statute, is to determine the intention of the Congress. This intent must be ascertained from the language employed and the meaning thereof should be given according to its common import. Little aid in this respect is gained from judicial interpretation of prior statutes, where from the contents thereof the conditions provided for were not thé same. In the present case the provisions of the statute plainly imply, that which was absent in former statutes, that furloughs had been granted to some of the officers and enlisted men in the war in question and not to others. In view of this fact it was provided by the act of January 12, '1899 (30 Stat. L., 184), that in lieu of granting leaves of absence and furloughs prior to muster oiit of the service, all such officers and enlisted men thereafter mustered out, who served honestly and faithfully, should be paid extra pay on muster out and discharge. The act of May 26, 1900 (31 Stat. L., 217), extended the provisions of the former act to officers and enlisted men who had been honorably discharged without furlough, and who had not received the extra pay granted in said act.

The claimant in the present case belonged to an organization to which a furlough had been granted prior to the time of its muster out and discharge, and but for the fortuitous circumstance of having been detained for special duty he would have enjoyed such furlough as did his comrades. So these facts have pointed out with unerring certainty the furlough period of which the claimant was deprived and for which he is entitled to extra pay. In this respect there is an easily distinguished difference from the members of an organization that had not been granted the privilege of a furlough; for in sh'ch cases no time had ever been designated in which the furlough could have been effective, and from the necessities of the case the time for extra pay would be computed from the date of muster out and discharge, the statute by plain implication being a prohibition to granting the kind of furloughs previously ordered, wherein it is directed that in lieu of such furloughs extra pay shall be substituted.

It follows from the foregoing views that the claimant is entitled only to the pay of the rank held by him during the period of the furlough that was granted to his regiment, and judgment will be entered accordingly for one hundred sixteen dollars and sixty-seven cents ($116.67).  