
    ■LIEUTENANT DONNAN’S CASE.
    Robert C. Donnan v. The United States.
    
      On the Proofs.
    
    
      An officer in a regiment of volunteers during the Mexican war resigns. The order thereon says that he, ‘ ‘ Raving tendered his resignation, is hereby discharged." He brings this action to recover the three months’ pay given to officers, fya., who-served out their time or were honorably discharged.
    
    The Act 17th July, 1848 (9 Stat. L., 248, § 5), which gave three months’ extra pay to officers and soldiers engaged in the Var with Mexico, “ who served out the term of their engagement or have been or may be honorably discharged,” immediately received a conslruction from the Secretary of War which has. ever since been accepted and acted upon by the executive departments, and is now adopted by the court, viz, that the act does not extend to officers who resigned on grounds which did not render them incapable of'serving out the term of their engagement.
    
      The Reporters’ statement of the case:
    As the claimant in this case could not appeal to the Supreme Court, tbe amount claimed being less than $3,,000, no findings of fact were filed by the court. The facts, however, are set forth in the opinion of the Chief Justice.
    
      Mr. ■George A. King for the claimant:
    The learned Assistant Attorney-General presents opinions of various officers of the departments, to show that a “resignation” and a “discharge” are distinct modes of leaving the service, and that where, as in this case, an officer resigns he cannot be said to be discharged. These papers, containing the same argument, were presented to this court in Krdman’s Case (13 O. Cls. R;, 249), and the argument was there overruled as unsound.
    The true distinction, as made by Art. 99 of the Articles of War (Rev. Stat., §. 1342), is between “discharge” and “dismissal.” See also Scott’s Military Diet., p. 238. These authorities show very clearly that after an officer tenders his resignation, the-ordinary course of proceeding is that he shall be “discharged.”' The word is so used, both in technical military language and in the familiar language of life. It is so used in this very case; for General Wool’s order, which vyill be found on page 8 of the Eecord, reads, “Second Lieut. E. 0. Donnan, Yirginia Volunteers, having tendered his resignation, is hereby discharged, the service of the United States, to take effect this day.” With what propriety, then, can it be contended that the claimant was not “honorably discharged,” in the face of this order-“discharging” him in terms f
    The construction contended for by the learned counsel on the-other side would read the acts of 1848 and 1879 so as to apply them to soldiers who “served out the time of their engagement and were honorably discharged,” while the express words of' the statutes allow this sum of money to those who “ served out the time of their engagement or were honorably discharged.”' The construction contended for on the other side ignores this latter clause. It would exclude all but those who “ served out-the time of their engagement,” while the law admits also those-who “ were honorably discharged.”
    We would also call attention to the Act July 13,1866 (14 Stat. L., 94), construing the act of 1865 as we contend the act of 1848-ought to be construed, and in which the word “ discharge ” is-used in the same sense that we claim for it.
    
      Mr. A. D. Robinson (with whom was the Assistant Attorney-General) for the defendants:
    The long usage of the department in construing such statutes-as not allowing three months’ pay, or travel pay, in such cases, and Congress having done nothing showing a disapproval or revocation of such usage, should be considered as affirming the-same.
   Draice, Ch. J.,

delivered the opinion of the court.

By the fifth section of an act passed on the 19th of July, 1848 (9 Stat. L., 248, ch. 29), it was enacted, “Thatthe officers, non-commissioned officers, musicians, and privates engaged in the war with Mexico, and who served out the term of their- engagement, or have been or may be honorably discharged, * * * -shall be entitled to receive three months’ extra pay: Provided\ ’That this provision * * * shall only apply to those who have been in actual service dijring the war.”

The claimant sues under this provision to recover three months’ extra pay as a second lieutenant of infantry in the First Regiment of Virginia Volunteers raised for and engaged in the war with Mexico.

There is no dispute as to the facts. The claimant was mustered into the service as second lieutenant on the 14th of December, 1846, to serve during the war with Mexico, and was in actual service with that regiment, in the war, until the 10th of August, 1847; when, at Buena Vista, Mexico, while the war was still flagrant, he tendered his resignation of his office; whereupon Brigadier-General Wool issued the following order:

“2d Lieut. R. 0. Donnan, Virginia Volunteers, having tendered his resignation, is hereby discharged the service of the United States, to take effect this day.”

In pursuance of this order, the claimant left the Army and returned to the United States.

The question is, whether it appears that he was “honorably discharged” within the meaning of the statute.

It is a part of the history of the times that, in less than a month after the passage of the above act, the question involved here came before Hon. William L. Marcy, Secretary of War, who, on the 3d of August, 1848, addressed a letter to the Acting Paymaster-General of the Army, in which we find the following passage:

“If an officer, non-commissioned officer, private, &c., after muster into service, has been discharged by reason of ill health incurred -while in the service of the United States, he is entitled to the three months’ extra pay. But where he has been discharged on his own application, on any grounds which did not render him incapable of serving out the term of his engagement, he is not entitled to the benefit of the law although an honorable discharge may have been given to him. Where a volunteer officer wishing to retire from the service of the United States has tendered the resignation of his commission, and it was not accepted in the form of a resignation, but he was discharged, he is not entitled to extra pay. Officers appointed by the President leave the service by the tender and acceptance of their resignations. Those receiving appointments from the executive of the States, and received into the service of the United States, retire from it by a discharge: the former are not entitled to extra pay, nor can it be the intention of the law to allow it to the latter, where they were discharged before the term of their service had expired, on their own application.”

These views of the Secretary of War have been accepted and acted upon by the Executive Departments of the government •ever since they were expressed.

In our opinion they are correct, and must control our decission in this case adversely to the claimant, whose petition, therefore is, dismissed.  