
    JAMES C. BYRNES v. THE UNITED STATES.
    [No. 15229.
    Decided April 20, 1891.]
    
      On the Proofs.
    
    The claimant is employed as a contract surgeon in the Army, after which he is appointed an assistant surgeon in the Navy. He seeks longevity pay, founded on his service as contract surgeon.
    I. A contract surgeon in the Army is not an officer within the meaning of the Naval Appropriation Aot, 3d March, 1883 (22 Stat. L., 473), and is not to be credited with such service in the computation of his longevity pay.
    II. The fact that a contract surgeon is entitled to a pension under the Revised Statutes, §4693, does not affect his rights to longevity pay under'another statute.
    III. Tk9 fact that a pension is granted by the express terms of a statute will not authorize a court to hold by construction that it was because he was an officer in the Army.
    
      The Reporters’ statement of the case:
    The facts upon which this case rests will be found in the opinion of the court.
    
      Mr. John Paul Jones and Mr. Robert B. Lines for the claimant:
    In the case of Sendee (22 O. Cls. B., 134) the claimant had served as a paymaster’s clerk. In a very exhaustive opinion, in which the cases of Reed (100 U. S. B., 13), Germaine (99 U. S. B., 508), and Bogart (3 Sawyer, O. C. B., 407) are considered (and to which we call the court’s attention), the Chief Justice used the following language, which applies with full force to the case at bar:
    “ We find in the Navy aclassof officers called 'petty officers,’ recognized as such by the statutes (Bev. Stats., § 1410), but without any statute provision as to how they shall be appointed. By the regulations they are appointed by or with the approval of the commander of the vessel on which they are employed. We hardly think any one would doubt that such officers are entitled to the benefits of the act of 1883.”
    In Muse’s Case (19 C. Cls. B., 441) this court gave a marine officer credit for service as a paymaster’s steward. The appointment was under the following clause of a general order of November 11,1861:
    “The yeomen will be appointed by the commanding officer, the paymaster’s steward by the paymaster, and the surgeon’s steward by the surgeon of the vessel, the two latter appointments to be approved by the commanding officer.”
    Again, in Bunn's Case (19 O. Cls. B., 21), credit was given for the service of a boy under 11 years of age who was “ bound to learn music.” This case was affirmed by the Supreme Court.
    We submit that these cases are in every essential particular identical with the one at bar and are decisive of it.
    The true test in cases of this character was fully stated by the Supreme Court in Sendee’s Case (124 IT. S. B., 309).
    Was the service for which credit is sought performed in the Army or Navy1? Was it of a military character? In order that there may be no possible doubt on this subject we call attention to the act of March 3, 1865 (13 Stats., 499), whereby a pension for wounds or disabilities occurring in the line of duty is granted to “ acting assistant or contract surgeons.” The same provision is fonnd in the Bevised Statutes, section .4693.
    It is needless to comment upon the long-established and consistent.policy of the Government that actual military service was a condition precedent to the granting of a pension. A civil pension list is and always has been foreign to our form of Government.
    
      
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    Claimant was neither an officer nor enlisted man. He was neither appointed nor employed. He agreed to render certain services for a fixed compensation. Part of such compensation was traveling expenses. Neither under employment nor appointment could he, being neither an officer nor enlisted man, have legally demanded mileage (United States v. Mouat, 124 ,U. S. B.,, 303.) He received it by virtue of his contiact. He did not come within the grade of petty officer; there is no such rank recognized in the Army. He was neither a commissioned nor noncommissioned officer. He was, as his contract denotes, a private physician, agreeing to render certain services for a limited period. He agreed, as a private physician, to perform the duties of a medical officer in the Army.
    Claimant does not come within^the decision in Sendee's Case (124 U. S. B., 313), that the longevity act was to include all men in service either by enlistment or regular appointment in the Army or Navy.
    It does not appear that he was required to take an oath or required to wear uniform. He did not have the rank or assimilated rank of first lieutenant, but as part of his compensation, under-the provisions of his contract, he was to receive the fuel and quarters of “ an assistant surgeon of the rank of first lieutenant.” Nor does claimant come within the decision in Fxparte Feed (100 U. S.B.,13).
    It can hardly be contended that all contract service rendered in connection with the Army is the service of an officer or enlisted man. This would be opening the doors too wide.
    I submit that the contract service of a physician is limited by the express contract. That when the terms of the contract are fulfilled the obligation of the Government ceases.
   Weldon, J,,

delivered the opinion of the court:

On the 1st day of September, 1870, the claimant made a contract with the defendants, by which he agreed to serve the United States as a medical officer, agreeably to Army Begula-tions, in the Department of Dakota, at the sum of $100 per month, the contract to continue for one year unless determined by the general commanding the military division or department. Said contract was substituted for a contract for like service bearing date July 19,1870.

He served for seveal years under said agreements, and was then appointed assistant surgeon in the Navy. It is alleged that, under § 1 of the Naval Appropriation Act of March 3, 1883, he is entitled to the sum of $987.97, based upon the computation of time he served under said contracts with the Government.

It is contended that the facts of this case bring it within the principles of law announced by the Supreme Court in the case of Hendee v. The United States (124 U. S. R., 309).

In the case of Mouat v. The United States (124 U. S. R., 303) it was held that a paymaster’s clerk is not an officer of the Navy within the meaning of the Act of June 30, 1876 (19 Stat. L., 65, ch. 159), so as to be entitled to mileage allowed by that act; but it was held in the Hendee Case that within the meaning of the Act of March 3, 1883 (22 Stat. L., 473, ch. 97), respecting the longevity pay of officers and enlisted men, a paymaster’s clerk was in the Navy.

It is somewhat difficult to distinguish the cases, and in order to do so we must look to the reasoning in both. The issue in each involved the construction of two acts of Congress. In the Mouatt Case, the court held that the Act of June 30, 3876, in modification of the Act of June 6,1874, excluded persons of the Navy from the benefit of its provisions except officers.

In the Hendee Case the same class of persons was held to be included in the Act of March 3, 1883, although the terms “ officers or enlisted men ” were used in its provisions.

In the latter case the court quotes approvingly what was said by the Supreme Court in the case of Ex parte Reid (U. S. R., 13):

“ The place of paymaster’s clerk is an important one in the machinery of the Navy. The appointment must be approved by the commander of the ship. Their acceptance and agreement to submit to the laws and regulations for the government and discipline of the Navy must be in writing, and filed in the Department. They must take an oath, and' bind themselves to serve until discharged. The discharge must be by the appointing power, and approved in the same manner as the appointment. They are required to wear the uniform of the service; they have a fixed rank ; they are upon the pay roll, and are paid accordingly. They may also become entitled to a pension and to bounty land. * * * If these officers are not in the naval service, it may well be asked who are.”

It does not appear that the claimant in this case was subject to the rules, regulations, and requirements imposed upon a paymaster’s clerk, which seem to have been important in the consideration of the case of Reid.

After enumerating the requirements of a paymaster’s clerk the court inquires: “If these officers are not in the naval service it may well be asked who are.”

The relations of the claimant to the Army were dependent upon a contract in the ordinary sense of the term. He had no rank, but as part of his compensation he was to receive the »fuel and quarters of an assistant surgeon of the rank of first lieutenant, and mileage when traveling under orders and not with troops. But these incidents were a part of his contract compensation, and he received them, because they were provided in the contract as a measure of compensation.

The fact that under section 4693, Revised Statutes, he may be entitled to a pension does not enlarge his rights under the Act of 1883, providing for longevity pay. The fourth clause under said section by express designation gives to “ contract surgeons ” the right of an invalid pension, and it is not a question of construction. It does not follow, that because a person may be entitled to an invalid pension under section 4693, by construction he would be entitled to increased longevity pay under the Act of 1883.

The Hendee Case is based upon the theory that, because of the substantial characteristics of the claimant as a soldier, he came within the purpose of Congress in the enactment of the law of 1883.

In the case of Dunn (21 C. Cls. R., 20, 120 U. S. R., 249), which is one of the cases relied upon by the counsel for the claimant, the findings of fact show that the claimant first entered the Marine Corps “ in the eleventh year of his age, as a boy bound for ten years and twenty-two days, to learn music.” But his entering the Marine Corps was by enlistment, with the consent of his parents, and both this court and the Sujireme Court regarded it as an undisputed case of enlistment, the only question considered being whether the Marine Corps was a part of the Army or Navy, or neither. The decision therefore did not relate to the personal relations of the claimant, and is not authority for holding that a contract surgeon is an officer within the intent of the statute now under consideration.

In this case there are wanting those features of military-service, and because of the difference we distinguish this case from the cases relied on by counsel.

The judgment of the court is that the petition be dismissed.  