
    FREDERICK PATYSCHKE v. THE UNITED STATES.
    [No. 17843.
    Decided June 22, 1896.]
    
      On the Proofs.
    
    Claimant is a member of tbe Marine Band. He seeks to recover tbe '‘retained pay” allowed by tbe Revised Statutes. It appears that tbe West Point Band bas been allowed sucb pay by tbe War Department and tbe accounting officers.
    I. Tbe statutory bistories of tbe Marine Band and tbe West Point Band stated.
    
      II. The statutes do not expressly prescribe the compensation of these hands. To ascertain what is the pay of the Marine Band, it is necessary to ascertain what is the pay of the West Point Band (§ 1612), and to ascertain what is the pay of the West Point Band, it is necessary to ascertain what is the pay of the privates and noncommissioned officers of the engineer soldiers. (Act %9thJuly, 1861, 12 Stat. L., p. 279, § 4.)
    III. It being well settled by departmental construction that the West Point Band are entitled to “retained pay,” the same must be held as to the Marine Band. (Rev. Stat., § 1281.)
    
      The Reporters’ statement of tbe ease:
    The following are the facts of the case as found by the court:
    I. The claimant enlisted as a private in the Marine Corps, at Washington, D. 0., on the 26th day of September, 1887, and was rated third-class musician on the same day; first class on December 1, 1888, and re-rated third class July 1, 1893, and was honorably discharged September 25, 1892, having served his full enlistment.
    II. During his said service he was paid from July 1, 1891, to September 25,1892, at the rate of $17 per month (third class), and from December 1,1888, to June 30,1891, at the rate of $34 per month (first class).
    III. He has not received the benefits of section 1281, Eevised Statutes.
    IY. There is due the claimant from the Government $1 per month during his third year, $2 per month during his fourth year, and $3 per month during his fifth year, making in all $72, under the Eevised Statutes, section 1281, if he be entitled to the benefits of that section.
    Y. Since the act 15th May, 1872, there has been allowed and paid by the Executive Departments to the members of the band at the Military Academy the retained pay prescribed by the Eevised Statutes, sec. 1281.
    
      Mr. L. Cabell Williamson for the claimant,
    
      Mr. E. C. Brandenburg (with whom was Mr. Assistant Attor- ' ney-General Bodge) for the defendant.
   Nott, J.,

delivered tbe opinion of tbe court:

Tbe Act to increase the military establishment, 29th July, 1861 (12 Stat. Lp. 279, sec. 2), authorized a military band for each "of the regular regiments of infantry and artillery.” The Act to fix the military peace establishment, 28th July, 1866 (14 id., p. 332, sec. 7), provided “ that fifteen bands, including tbe band at tbe Military Academy, may be retained or enlisted into tbe Army, with such organization as is now provided by law, and tbe band at tbe Military Academy shall be placed on tbe same footing as other bands.” The Aet to reduce the Army, 3d March, 1869 (15 id., p. 318, sec. 5), provided that of tbe fifteen bands now in tbe service,” all except tbe band at tbe Military Academy shall be honorably discharged without delay.” Tbe Eevised Statutes declare when defining tbe Army of tbe United States that there shall be “ one band stationed at the Military Academy.” (Sec. 1094.)

The band at the Military Academy, popularly known as the West Point Band, therefore, was once one of fifteen bands, all upon tbe same footing; but since the act of 3d March, 1869, has been the only military band in the Army of the United States.

It is a singular fact that the Revised Statutes, which declare tbe West Point Band to be a part of the Army, do not provide for the payment of its members. To ascertain what is the pay of the band we must go back to the Act 29th July, 1861 (12 id., p. 279, sec. 4), which provides that regimental bands shall be paid as follows:

One-fourth of each, the pay and allowance of sergeants of engineer soldiers; one-fourth, those of corporals of engineer soldiers; and one-half, those of engineer soldiers of the first class. The drum-major or leader of the band, the pay and emoluments of a second lieutenant of infantry.”

And to ascertain what was and is the pay of engineer soldiers we must go back to the Act 4th August, 1854 (10 id., p. 575), where it is increased $4 a month, and farther back to the Act 15th May, 1846 (9 id., p. 12), where at last it is stated in terms, and forward to the Revised Statutes, section 1280, where it is provided that sergeants shall receive $34, corporals $20, and privates of tbe first class $17. This, during the time of the claimant’s service in the Marine Band, was the pay of the musicians of the West Point Band.

The Act 15th May, 1872 (Rev. Stat., sec. 1281), added to tbe preceding pay of soldiers in tbe engineers, wbat bas been known as “retained pay.” That is, it increases tbe pay to tbe extent provided, but also requires that it shall not be paid to tbe soldier until bis discharge, and shall be forfeited unless be serves honestly and faithfully.

It is now certified to tbe court by tbe Paymaster-General that “tbe enlisted members of tbe West Point Band, in com-; mon with enlisted men of tbe Army, have been entitled to tbe benefits of section 1281, Revised Statutes, as to retained pay,” and that “they became entitled to the benefit of said section 1281 on July first, 1872, under tbe act of May 15th, 1872.”

In tbe previous case of Keppler (27 C. Cls. R., 482), tbe court was not informed of this fact; but, on tbe contrary, was led to believe by an order of tbe War Department that tbe contrary construction had been given to the act by tbe accounting officers. It is well settled, both by tbe Revised Statutes, section 1612, and tbe construction of tbe accounting officers, .and the decisions of this court, that wbat tbe officers and enlisted men of tbe Army receive tbe officers and enlisted men of tbe Marine Corps shall likewise receive. Tbe pay of tbe Corps bas not been otherwise provided for by statute since 1856. It is true that in tbe. Revised Statutes tbe West Point Band is named specifically, but it was tbe only band then existing in tbe Army of tbe United States, and it was the residuum of tbe fifteen bands authorized by tbe act of 1866; and tbe same statute, tbe Revised Statutes, which named it specifically, named and authorized tbe Marine Band, section 1596, and provided no other pay for its members than that of “ enlisted men of like grades in tbe infantry of tbe Army,” section 1612; and tbe only enlisted men of like grades in tbe infantry of tbe Army were, at tbe time of tbe enactment, tbe members of tbe West Point Band.

Tbe court is therefore of the opinion that tbe members of tbe Marine Corps are entitled to tbe same retained pay as is received by tbe members of tbe West Point Band, and tbe judgment of tbe court is that tbe claimant recover $72.  