
    John P. Sherburne’s Administrator v. The United States.
    
      On the Proofs.
    
    
      In the Army reduction of 1870, an officer is mustered out on the recommendation of a hoard. The act 1870 gives to such officers “one year’s pay.” Commutation for traveling expenses from the place of discharge to the place of enlistment, given hy previous statutes, is claimed and refused.
    
    
      I.“Pay” is a fixed and direct amount given "by law to persons in the military service; “allowances," or emoluments, are indirect or contingent remuneration; both are compensation for services while in service.
    II. The traveling expenses assured to officers and soldiers upon their discharge from service by the Acts 3 d March, 1799 (1 Stat. L., p. 749, § 25, ch. 48); 16i7i. March, 1802, (2 ib., p. 133, § 25, ch. 9); 11th January, 1812 (2 ib., p. 671, § 22, ch. 14); 29¿7¡ January, 1813 (2 ib., p. 794, § 15, ch. 16), are not allowances, nor of the nature of wages for service, hut are of the nature of indemnity against the contingency of a discharge at another place than that of enlistment.
    III. Congress have power to take away an indemnity assured to officers and soldiers at the time of their enlistment by certain statutes; but such a change requires the clearest indication of the legislative intent, and cannot be introduced into the government’s policy by either executive officers or courts, through the medium of questionable implications.
    IY. The Act 15th July, 1870 (16 Stat. L., p. 315, § 11, ch. 294) providing for the reduction of the Army, and the weeding out of the least efficient officers, and granting to such “one year’s pay ” upon their discharge does not repeal by implication the provisions of previous statutes, assuring to all officers and soldiers traveling expenses from the place of discharge to the place of enlistment.
    
      Y. Tlie board of officers authorized by tbe Act 1870 was an ex parte advisory board to assist tlie President in tlie unpleasant duty of reducing the Army, and was in no sense a court or quasi judicial tribunal.
    YI. The Act 1870 did not contemplate or authorize discharges for offenses, and though it authorized discharges for “ unfitness,” its provisions-were in no sense penal.
    
      The Reporters' statement of tbe case:
    The following are the facts of this case as found by the court:
    I. John P. Sherburne, the original claimant, was appointed second lieutenant in the First Infantry, July 24, 1856 ; first lieutenant in the same regiment, to rank from April 8, 1861 ; captain in the Nineteenth Infantry, to rank from October 24, 1861; and major and assistant adjutant-general, to rank from July 18, 1862, and served as such until mustered out at Washington, D. C., December 28, 1870.
    II. He was mustered out of the service by direction of “the President, on the recommendation of the board, convened under the eleventh section of the act of Congress approved July 15, 1870. (16 Stat. L., 318.)
    III. Said board found said claimant unfit for the service, by reason of disregard of his pecuniary obligations, to the discredit of the Army; and for the reason that he had not uniformly well performed the.duties of his office; and the board therefore recommended that he be mustered out of the service.
    IV. Upon his muster out he received one year’s pay under section 11 of the act of July 15, 1870.
    V. At the time of said claimant’s entry into the service, his residence was Lexington, Los Angeles County, California, distant from Washington, as computed by the Pay Department of the Army for the payment of traveling allowances to officers of the Army, in December, 1870, 3,615 miles.
    VI. Since the commencement of this action, the claimant Sherburne has died, and William K. Duhamel has been duly appointed, administrator of his estate.
    
      Mr. 8. 8. Ilenkle for the claimant:
    This claim is based upon the twenty-second section of the act of Congress approved July 11,1812, entitled “An act to raise an additional military force,” and which is in the words following, viz:
    “That whenever any officer or soldier shall be discharged from the service, except by way of punishment for an offense, he .shall be allowed his pay and rations, or an equivalent in money for such term of time as shall be sufficient to travel from the place where he received his discharge to the place of his residence, computing at the rate of twenty miles to a day.”
    See Brightley’s Digest Laws United States from 1789 to 1859, p. 90, sec. 336.
    This law was in force at the time of his muster out. What is an offense when used in law? It is “the doing that which a penal law prohibits to be done, or omitting to do what it commands.” In this sense it is nearly synonymous with crime. In a more confined sense it may be considered as having the • same meaning with misdemeanor, but it differs from it in this, that it is not indictable, but punishable summarily by the forfeiture of a penalty. (Bouv. Law Diet., 2 v., 254; 12 ed., citing 1 Ohitty Prac., 14; see also Albot Diet., 2 v., 199, title, Offense.)
    By all writers upon criminal law, and in all criminal codes, ic is associated with “crimes,” and is used as convertible with crimes and misdemeanors. Certainly it will not be claimed that Sherburne was “ discharged from the service by way of punishment for an offense.”
    It was not pretended by the Secretary of War that the claimant was discharged for an offense, but his decision was based solely upon his construction of the eleventh section of the act of July 15, 1870.
    The Secretary was of the opinion that because the law said the officers reported by this board were to be mustered out with “ one year’s pay,” that Congress intended they should not have the travelling allowances from the place of muster out to their homes, which the law then in force gave to all discharged officers who were not “ discharged by way of punishment for au offense.” He reasoned that if Congress had intended giving the class of officers named in the eleventh section “ allowances,” the law would have said so. What is the pay of an officer ? The pay proper is a certain sum' in money to which each officer is entitled, payable in monthly instalments by the paymaster, the amount depending upon the grade of his office.
    What are allowances? Each officer is entitled to quarters, to fuel, and to forage for his horses. These may be furnished in kind, or he may supply himself with these necessaries and have a commutation in money. (See chapter entitled “Pay and Allowances,” p. 218, Bev. Stat. of 1873.)
    It is very clear that the distinction that Congress intended to make between officers “ unfit for service” and those who were fit, but for whom there was .no place to which they could be assigned to duty, was that the unfit should have a year’s pay proper, but should not have allowances as though still in the service, and the unassigned supernumerary should have not only his pay, but all his allowances for one year, as though still in the service. The third section of the same act authorizes the President to honorably discharge all officers of the Army who may apply therefor on or before the first day of January, then next; and such officers so discharged under the provisions of this act shall be entitled to receive, in addition to the pay and allowances due them at the date of their discharge, one year’s pay and allowances.” It is manifest that the allowances referred to are for the commutation of quarters, fuel, and forage, as it gives one year’s pay and allowances, in addition to the pay and allowances due them at the date of their discharge. I think it clear that wherever the term “allowances” is used in this act, it refers to quarters, fuel, and forage, and has no relation ■whatever to the “allowance” for travelling home after discharge. At the time of the discharge of 'the claimant it was the right of every discharged officer under the law then in force to have his travelling allowances, unless discharged “by way of punishment for an offense,” and the claimant was entitled to it, unless the act under which he was mustered out repealed the act of January 11, 1812.
    Unless repealing terms be used in a later statute it will not be construed to repeal a former one upon the same subject if they may both stand without conflict. (Vote’s Case, 3 G. Cls. B., 64; MoGooIy. Smith, 1 Blk. at p. 471.) Where the language of a statute giving compensation to a public officer is doubtful, it will be construed in favor of the officer. (United, States v. Morse, 3 Story, 87; Moore v. United States, 4 C. Ols. B., 139.)
    
      
      Mr John S. Blair (witli whom was the Assistant Attorney-General) for tlie defendants.
    The defendants contend that while section 22 of the act of January 11, 1812 (2 Stat. 674), and section 15, act of January 29, 3813 (2 Stat. 796), contemplated every method by which an officer or soldier at that time might have been discharged, they do nob apply to an officer mustered out under the specific provisions of abater statute. A fortiori they would have no application where the later statute gave to the officer mustered out similar indemnification for the sudden cessation of his salary. And we claim that the year’s pay was a substitution in cases of his class for the travel-allowance given by act of 1813. “Later and more specific statutes do as a general rule supersede former and more general statutes, so far as the new and more specific provisions go.” (Isham v. Bennington Iron Go., 19 Vermont, 249.)
    “Every statute must be considered according to what appears, to have been the intention of the legislature; and even though two statutes relating to the same subject be not in terms repugnant or inconsistent, if the latter statute was clearly intended to prescribe the only rule which should govern in the case provided for, it will be construed as repealing the original act.” (Sedgwick on Statutes, p. 104, ed. of 1874; Weeks v. Walcott, 15 Gray, 56; Daviess v. Fairbairn, 3 How., 636, v. 645; Sacramento v. Bird, 15 Cal., 294; Rogers v. Watrous, 8 Tex., 62; Bartlett v. King, 12 Mass., 537, p. 545); or, as stated by Field, J., in BierpontY. Grouch, 10 Cal., 315, “It will repeal the first, to the extent in which its provisions are revised or substituted.” The-relation of the two statutes is, I think, the same as that between the acts of 1861 and 1864 concerning the purchase of supplies. (See Gobb, Christy & Co.’s Case, 7 C. Cls. It., 479.)
    Further demonstration that Congress intended officers mustered out under section 11 should have one year’s pay and nothing else, is found by comparing that section with sections 3 and 12 of the same act, by which “ one year’s pay and allowances” were provided for officers mustered out on their own application or from the supernumerary list. What plaintiff’ claims is no less an “ allowance” than quarters, fuel, and forage;. indeed, the enacting language is “ he shall be allowed,” &c. It has always been considered and called “traveling allowance.” (See Army Regulations, section 1339, edition of 1861; section 1370, edition of 1863.)
   jSTott, J.,

delivered the opinion of the court:

The question in this case is whether certain officers mustered out of the service under the Army reduction of 1870 are entitled to commutation for traveling expenses from the place of discharge to the place of enlistment. It is conceded that some officers, those who come within the provisions of sections 3 and 12 of the Act 1870, are so entitled. It is contended that •those who wore mustered out by virtue of the provisions of section 11 are not so entitled. The distinction which has been made rests upon the fact that section 11 of the act (under which section the present demand comes) gives to certain officers upon their discharge “one year’s gay,” while sections 3 and 12 .give to certain other officers “one year’s pay and allowances.” It is argued that the commutation for traveling pay and expenses assured to all officers by former statutes upon discharge or muster out is an “ allowance,” and that the act, by implication though not in terms, takes these cases out of the operation of the former statutes, inasmuch as it gives to such officers a discharge pay which,' it is inferred, was intended to exclude all other discharge pay and, consequently, the commutation or allowance previously assured. This argument is suggested by the fact before mentioned, that one section of the Act 1870 gives to one class of officers simply pay,” while other sections give to two other classes “pay and allowances.” What, then, do these terms import ?

Pay is a fixed and direct amount given by law to persons in the military service, in consideration of and as compensation for their personal service. Allowances, as they are now called, or emoluments, as they were formerly termed, are indirect or ■contingent remuneration, which may or may not be earned, and which is sometimes in the nature of compensation, and sometimes in the nature of reimbursement. Both pay and allowances are compensation for services while in service, and the •system of making a portion of the compensation contingent was at the time of the passage of the Act 1870 common to all armies. (Scott’s Military Dictionary; Art., Allowances.)

Thus, a captain of cavalry formerly received $70 per month, which was his pay, and was fixed, direct, and certain. He also received $10 a month if in the actual command of his company. He also was entitled to commutation for the forage of two horses if he actually had them in service. He also was entitled to. rations for himself and servants, and to longevity rations after certain prolonged periods of service; to fuel, to quarters, to transportation, to mileage, and to stationary. These were allows anees. Some of them, considered as compensation, were indirect and some contingent; but in all instances they were something given for service, or as reimbursement.

This being the method, time out of mind, of compensating officers of the Army while in the service, there was also a payment for traveling expenses allowed to both officers and soldiers upon their discharge from the service by the Acts 3d March, 1799 (1 Stat. L., p. 749, § 25, chap. 48), 16th March, 1802 (2 id., p. 133, § 25, chap. 9), ll#7t January, 1812 (2 id., p. 671, § 22, chap. 14), 29th January, 1813 (2 id., p. 794, § 15, chap. 16).

But this payment was not of the nature of wages for service. On the contrary it was a payment to be made after all service had ceased, and was of the nature of indemnity. When an ordinary employó binds himself by contract for work and service, he is free to designate the place of his discharge, and if, without its being designated, his employer should discharge him at a distant or unreasonable place, the law would award him such damages as would make him whole. In the case of persons entering the military service, they can prescribe no such condition and are liable to be sent by their employer to the most remote places of the earth, and are likewise liable to be discharged at any place, or at any moment. In a country with so vast a territory as ours this would often work great wrong to the individual and would result in great inequality of justice throughout the Army generally. One sol her enlisted and domiciled in Washington might be discharged in Washington ; another enlisted and domiciled in Florida might be discharged in Alaska. It has never been the policy of the government to deal out anything but even-handed justice to its soldiers, and if there be any one rule of policy which has been more invariably adhered to than another, it has been the rule of returning an officer or soldier to his home, either positively by his actual discharge there, or constructively by commuta-tiou for traveling expenses and time, or by pay with. transpor: tation and rations in kind.

These things were a part of the moral compact between the government and its soldiers when the Act 1870 was passed. Pay might be increased or diminished, allowances might be added or taken away, traveling expenses might be commuted in money or transportation be furnished in kind, but morally there rested upon the government the obligation of paying a soldier while he remained in the service, and of returning him to his home when his service ended.

This obligation, so far as the knowledge of the court extends, the government has never sought to evade. (See Army Paymaster’s Manual, 1871; Title, Traveling Allowances.)

No instance has been brought to our attention where a different rule had been laid down or a different policy pursued. So far as we are advised this case presents the very first instance where home transportation or commutation-has been withheld from an officer discharged at another place than the place of his enlistment. We do not doubt the power of Congress to change the rule and adopt a harsher policy at any time; but such a change requires the clearest indication of the legislative intent, and cannot be introduced into the government’s policy by either executive officers or courts through the medium of questionable implications.

It is true, as is alleged by the defendants’ counsel, that Congress by the Act 1870 allowed to these officers a years’ pay; but it is also true that such pay was a gratuity which has repeatedly been given before to officers upon their final discharge from service. Since the reduction of the Continental Army under the “White Plains arrangement,” in 1778, to the present time,'extra pay, in the form of half-pay for life, of five years’ full pay, of three months’ additional pay, of one year’s additional pay, of pay and allowances, of bounty, and land warrants, has been allowed almost without exception to officers and soldiers discharged without fault of their own when their services were no longer needed. In some of these instances the discharge pay was promised in advance, as an inducement to enlisting; in others it was made a condition to continuance in the service; in others it was a pure gratuity; in none was it given as a substitute for traveling expenses, &c., from the place of discharge to the place of enl stment.

Some stress is also laid upon tbe report of tbe board and tbe reasons assigned therein for tbe discharge of this officer.

In tbe first place, we do not regard tbe report as evidence of tbe facts alleged. Tbe board of officers was an ex parte, advisory board, intended merely to assist tbe President in tbe unpleasant duty of reducing tbe Army by a process of weeding out tbe least efficient officers, and it was in no sense a court or quasi judicial tribunal. In tbe second place, tbe Act 1870 did not contemplate discharges for offenses. Tk¿ cause prescribed by section 11 (under which tbe claimant was discharged) was “ unfitness.” If the claimant bad been guilty of conduct unbecoming an officer or prejudicial to tbe service, there were abundant provisions of law for bringing him to trial before a court-martial and dismissing him from tbe service without tbe bounty of additional pay. This Act 1870 was intended to reach an entirely distinct class of officers; it was in no sense penal, tbe officers against whom it operated were not criminal, tbe advisory board bad no jurisdiction of offenses, and was without authority to put officers upon their trial for any fault.

When tbe two statutes which affect and control this case are brought side by side, it becomes manifest that tbe latter was not intended to abrogate or supplant tbe other.

Tbe Act 11th Jamiary, 1812 (2 Stat. L., p. 671, § 22, ch. 14), provides:

“That whenever any officer or soldier shall be discharged from tbe service, except by way of punishment for an offense, be shall be allowed bis pay and rations, or an equivalent in money for such term of time as shall be sufficient to travel from tbe place where be received bis discharge to tbe place of bis residence, computing at tbe rate of twenty miles to a day.”

Tbe Act 15th July, 1870 (16 Stat. L., p. 31.5, § 11, cb. 294), provides:

“That tbe General of tbe Army and commanding officers of tbe several military departments of tbe Army shall, so soon as practicable after tbe passage of this act, forward to tbe Secretary of War a list of officers serving in their respective commands, deemed by them unfit for tbe proper discharge of their duties from any cause except injuries or disease contracted in tbe line of their duty, setting forth specifically in each case tbe cause of such unfitness. Tbe Secretary of War is hereby authorized and directed to constitute a board to consist of one major-general, one brigadier-general, and three colonels, three of said officers to be selected from among those appointed to the Regular Army on account of distinguished services in the volunteer force during the late war, and on recommendation of such board the President shall muster out of the service any of the said officers so reported, with one year’s pay, but such muster out shall not be ordered without allowing such officer a hearing before such board to show cause against it.”

The former act, it will be noted, carves out its own exception to the general rule which it establishes, viz, “ except by way of punishment for am offense.” In all other cases of discharge the officer is assured that he shall be transported to his home. The latter act, it likewise will be noted, does not deal with “ offenses,” nor prescribe “punishments.” Neither is the subject-matter of this section the pay of the Army or the allowances assured to officers. The purposes of the section are simply, on the one hand, to reduce the Army, and on the other, to grant a sum in ready money of the nature of a gratuity to those officers who, by its operation, would lose their commissions.

Moreover, it may be noted that section 24 of the same act changed and materially modified the compensation of officers in the Army. It increased the fixed compensation or pay, and then enacted that “these sums shall be in full of all commutation of quarters, fuel, forage, servant’s wages, and clothing, longevity rations, and all alloiv anees of every name and nature whatever.”

If the commutation given by the act of 1812 to discharged officers comes within the term “ allowances,” as is contended by the defendants counsel, and if the omission of that term from section 11 of theact of1870 was intended by Congress to cut off those officers from such commutation] if, in a word, Congress attached that significance to the term “allowances” when they omitted it from section 11, it necessarily follows that when they introduced the term into section 24, and expressly abolished “ all allowances,” they intended that thenceforth no officer should ever receive commutation on his discharge. No one has ever attributed any such sweeping intent to Congress, and the use of the term in section 24 seems conclusive that Congress meant it in sections 3 and 12 to refer to the contingent or indirect compensation of officers while in service, and not to their transportation home after their discharge] consequently its omission from section 11 signifies no more than that the officers therein referred to are not to receive in addition to “ pay for one year” allowances for one year, which, are given to other officers by the other sections. What was given by the statute to both sets of officers was indemnification for the sudden cessation of their salaries. Both were entitled to commutation for traveling expenses to their homes, and the one as much so as the other.

Finally, if any doubt can still exist as to the legislative intent of the Act 1870, it must be removed by examining the language of section 3, which, after authorizing the President “honorably to discharge” officers “who may apply therefor,” provides that “such officers so discharged” “shall be entitled to receiye, in addition to the pay and allowances due them at the date of their discharge, one year’s pay and allow anees.” It seems to the court indisputable that here the “jpay and allowances” due them and the “pay and allowances” given them cannot have been intended as essentially different things; that the real intent was that the same pay and allowances which an officer had been receiving should be paid him for one year in advance; and that the term “ allowances” in the latter clause neither confers nor affects the commutation for traveling expenses from the place of discharge to the place of enlistment, which they and all other officers not dishonorably discharged were entitled to by virtue of the provisions of another statute.

The judgment of the court is that the claimant recover of the defendants the sum of $1,575.  