JAMES McKENNA v. THE UNITED STATES.
[No. 15303.
Decided May 14, 1888.]
On the Proofs.
After thirty years’ service a first sergeant is retired under the Act 1885. The War Department allows him three-fourths of a furlough ration per day, hut refuses commutation for medicine, medical attendance, quarters, and fuel.
I. Under the Act 14/7t February, 1885 (23 Stat. L., p. 305), which provides that an enlisted man who has served thirty years may he retired'on “seventy-five per centum of the pay and allowances of Hiéranle upon whioli he ivas retired,” the soldier is entitled to three-fourths of his “ sei-vice ration.”
II. He is not entitled to commutation for things which in service he enjoys only in common with others, such as medicine, medical services, fuel, and quarters.
The Reporter’s statement of the case:
The following are the facts as found by the court:
I. The claimant enlisted in the regular Army of the United States November 21, 1851. September 25,1885, after thirty years’ service, he was retired under the provisions of the Act of February 14, 1885 (23 Stat. L., 305). At the date of his retirement he held the rank of first sergeant and was retired with that rank. He is now a resident of 'the State of New York.
II. Since his retirement he has been paid 75 per cent, of pay proper and the allowance for clothing, and for rations he has been paid at the rate of 18| cents a day. He has also been “ permitted to apply to medical officers on duty for medical attendance, and to obtain necessary medicines, dressings, etc., from army dispensaries on prescriptions of medical officers of the Army, with the understanding that a medical officer is not required to leave his post or station to render such service.”
III. According to the records of the Quartermaster-General’s Office, the estimated value of a cord of wood to the United States at points between the 36th and 43d degrees north latitude was as follows : 1884-85, $6.94; 1885-’S6, $5.96; 1886-’87, $5.86. North of the 43d degree, as follows: 1884-’85, $6.04; *3091885-’88, $5.20; 1886-87, $4.93. According to an estimate made by the Surgeon-General of the Army, the entire cost of maintaining the medical branch of the service, divided by the whole number of beneficiaries, shows an approximate average monthly expense to the Government of $2¡.12¿ per man.
Mr. Benjamin F. Butler and Mr. ,W. Penn Clarice for the claimant.
1. In seeking to arrive at the intention of Congress, in the enactment of the act of February 14, 1885, we must have regard to the persons whom it was designed to benefit. They are soldiers who have served in the regular Army or the Marine Corps of the United States thirty years or upward— some in fact who have served thirty-five and forty years. They are men who have passed through not only the late war of the rebellion, but have defended the flag of the Union through more than one Indian war. Assuming that they had attained the age of manhood before entering the service, they are men who have passed the meridian, and are now upon the downhill of life, and who, not only from their long services, but from the exposures and hardships incident to army life, are now unfitted to follow any other pursuit successfully to obtain a livelihood. Congress must have known that the habits engendered in the Army, even assuming that they were not otherwise incapacitated for work, render these old servants of the Republic unable to adapt themselves to ordinary labor, and it must have intended, in providing for their retirement from the Army, to provide for, and secure to them, the means of a decent support. The act, being for a class of persons standing-alone, should be liberally construed, so as to secure to its fullest extent the object of its enactment — to secure to each retired soldier the means upon which to live comfortably7.
Whatever the enlisted man receives during the term of his enlistment, whether the remuneration is in dollars and cents or in supplies in the nature of allowances, grows out of his contract of enlistment, express or limited; and when the act of February 14, 1885, gives him the right to retire from active service after thirty years of such service, .with 75 per cent, of his pay and allowances, no order of the War Department can deprive him of a portion of the latter any more than *310it can take from him a part of the former. If the soldier is entitled under the act to three-fourths of his pay proper, so he is entitled to a similar proportion of all the allowances.
2. What, in the technical meaning of the word, are allowances ? The word, when applied to the Army, is a technical term, and is to be taken and construed in the sense in which it is used in the Army. {The parte Hill, 1 Pick., 261.) When technical words occur in a statute they are to be taken in a technical sense, unless it appears that they were intended to be applied differently from the ordinary or legal acceptation. (Sedgwick on Cont. of Stat., 221; Clark vs. City of Utica, 18 Barb., 451; Merchants’ Banlc vs. Cook, 4 Pick., 405; The United States v. Jones, 3 Wash. C. 0., 209.) •
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. {Sherburne’s Case, 16 C. Ols. B., 491.)
' The word allowances is used in the Revised Statutes in a technical 'sense. And in the cases of Roberts vs. The United States, 10 O. Ols. R., 283, and Marshall vs. The United States, 20 O. Ols. R., 370, the court held that the claimants were not entitled to their longevity allowance, for the reason that they had received the full amount to which their pay was limited.
The enlisted man who has been retired occupies the position of a soldier on detached service; the law contemplated that when retired he would return to the place of his original enlistment, where his home is supposed to be, and where the Government would be unable to supply him with quarters, fuel, rations, clothing, or medical attendance in case of.sickness, all of.which he would receive if in active service or at an army post; and in his case, as in the case of the officer wholly retired from service, the law intended that all these allowances should be commuted to him just as they are commuted to an enlisted man on detached service, the. only difference being that instead of receiving the whole amount of pay and the full value of the allowances, he is restricted to 75 per cent, of the amount.
3. Soldiers who have been placed upon the retired list are still in the Army — subject to military control — and liable to be recalled into service in case of an em'ergeney. By General Orders, No. 55, of 1885, which prescribes the regulations by which soldiers are retired under the act of February 14, 18S5, *311it is provided that “no discharge will be given, and the soldier will be regarded as continuing in service upon the retired list,” and the soldier is required “ on the last day of each calendar month to report to the Adjutant-Gen eral of the Army his post-office address,” and “to promptly report any change therein.” It will hardly be claimed that it was the intention of Congress, after these men had served the nation in perilous service for nearly the full measure of a life-time, to turn them out upon the world to earn a precarious livelihood, with three-fourths of the meager pay they had been receiving while in actual service.
4. Quarters are not furnished the retired soldier, and can not be. They are scattered all over the country, and stand in the position of soldiers on detached service, or soldiers stationed where the Government does not provide quarters; and hence they are entitled to have their quarters commuted to them at the rate fixed by General Orders, No. 104, dated September 3, • 1834, and in force at the time of their retirement.
5. When the regulations fixed the commutation of a ration to enlisted men on furlough at 25 cents does not appear. It is certain, however, that the regulations of 1881, which were in force when these claimants were retired, fixed the commutation price of a ration at 30 cents (§ 2231) for soldiers stationed where the Government does not otherwise provide for their subsistence, and by section 2234 the same sum is established as the uniform rate at which commutation of rations shall be paid to soldiers on discharge from service. Now, retired soldiers are not on furlough. Their retirement is not limited to any given time. They occupy rather the position of soldiers stationed “ where the Government does not otherwise provide for their subsistence,” or of “soldiers on discharge from serv-. ice,” and are at least entitled to have their rations commuted at 30 cents per diem instead of 25, while those who, at the same time of their retirement, held the rank of ordnance sergeant, and were “ on duty at forts and stations where there were no other troops,” are entitled to have theirs commuted at 40 cents per day,
6. Being still in the Army, though relieved from active service, the retired soldier is still liable to sickness, if not the casualties of the service, and is entitled to the same care for his health. If he remained at army posts he would doubtless receive there both medicine and medical attention; but the law contemplated *312that the enlisted, man, when retired, would return to the place of his enlistment, where his home is supposed to be, and the only-provision it could make for him was to give him the allowances to which he would have been entitled if he had continued in active service.
This right of the retired soldigr to call upon medical officers for treatment andmedicines inures to him undertho act by which he was retired, and only so inures for the reason that it is one of the allowances to which he is entitled. If it is not an allowance, then the soldier has no right to claim it; and if it is an allowance, then ho is entitled to have it commuted to him, just as his clothing and ration allowances are commuted, at what may appear to be its reasonable value. To make the right of it dependent upon the ability of the retired soldier to apply personally to the medical officer, or at some military post, finds no- - warrant in the act, and is a construction of the statute that is-impracticable.
Mr. F. P. Dewees (with wuom was Mr. Assistant Attorney-General Howard) for the defendants.
The questions presented are based upon the meaning of the words “ allowances of the rank upon which he was retired,” as-used in the statute.
There is no special controversy with claimant as to the meaning of the word “ allowances.” When applied to the Army it is a technical term, and is to be applied and construed in the sensé in which it is used in the Army. [Ex parte Hill, 1 Pick., 261.)
Non-commissioned officers and enlisted men are entitled by law, as part of their pay, to clothing and rations. These are allowances independent of the character of the service rendered.
A retired soldier is not on duty at “ a station.” He is absent on leave. His movements are uncontrolled. He is on furlough, even within the technical meaning of the word. His leave of absence is indefinite, but limited. When required by orders issued in conformity with law he reports. He is strictly “on furlough,” and is therefore paid on the basis of furlough commutation of rations.
Medical attendance and medicines, quarters, and fuel are allowances, but differ from clothing and rations in being contingent, not direct.
*313They are allowances by regulations, not by express law. They are allowances which are issued as required by the nature of the service, not by reason of any right in the individual. Therefore they are not commuted. When a man enlists he knows that he is, from the fact of enlistment, entitled as a private or non-commissioned officer to the clothing and rations, prescribed by law and regulations. He knows, further, that in certain contingencies he is entitled to medical attendance and medicines, to fuel, and to quarters. Subject to like contingencies, he is still entitled to such allowances whilst on the retired list; but the allowances must be in kind; he is not entitled to any commutation thereof. He is not entitled to the allowances from the fact that he is an enlisted soldier, but from the nature of his location or service. The allowances are not always definite in amount, and when definite, if not used when issued, if practicable, as in themase of fuel, to be returned.
When entitled to such allowances at all he is entitled to the whole, not 75 per cent. He is so entitled because they are an incident of service. This is recognized by regulation.
Medical officers, when ou duty, shall attend officers or enlisted men. .When the officer or enlisted man is on duty and no medical officer can be employed, then a private physician can be employed (§§ 2339 and 2340, Army Regulations of 1881). There is no commutation for this service.
When on the march or in the field of battle, or when absent on leave or furlough, there is no issue of fuel or quarters or commutation therefor. Such allowances are not incident to the rank of a non-commissioned officer or private in service when not on duty, and they are not incident to such soldiers when retired and not on duty. If the retired soldier is under the exigencies of the service called upon to perform duty, he would, subject to the regulations, be entitled to such allowances as are incident to such duty by law and regulations; as neither medical attendance, medicines, fuel, quarters, etc., are incidents attached to the rank, the refusal to commute such allowances, it is submitted, was correct.
The payment of commutation for quarters and fuel was expressly prohibited in the Army Appropriation Act of 1886 (24 Stat. L., 98).
It is therefore submitted that in commutation of rations and clothing the full requirements of the law are complied with. *314They are all that the soldier in active service not on duty has a right to demand.
Scofield, J.,
delivered the opinion of the court:
The claimant enlisted in the Army in 1851 and was retired, after a service of thirty years, from the rank of first sergeant on September 25, 1885, under the Act February 14, 1885 (23 Stat. L., 305). This act provides that—
“ When an enlisted man has served as such thirty years or upward in the United States Army or Marine Corps, either as,a private or as a non-commissioned officer, or both, he shall, by making application to the President, be placed on the retired list hereby created, with the rank held by him at the date of retirement; and he shall thereafter receive seventy-five per centum of the pay and allowances of the rank upon which he was retired.”
When a private soldier enlists in the Army, the Government, in addition to paying wages, undertakes to provide him with clothing, food, transportation, shelter, fuel, stoves, hospitals, nurses, physicians, medicines, religious instruction, and secular education.
Which of these “provisions, allowances, and benefits,” as they are-called in section 1155 of the Kevised Statutes, is embraced in the word allowances, within the meaning of the act, is the question for decision. By the construction put upon it by the Secretary of War, the retired soldier is entitled to the prescribed percentage on the commutations for clothing and furlough rations (25 cents a day). At these rates he has already been paid, lie is also “ permitted to apply to medical officers on duty for medical attendance, and to obtain necessary medicines, dressings, etc., from army dispensaries on prescriptions of medical officers of the Army, with the understanding that a medical officer is not required to leave his post or station to render such service.”
In addition to these allowances, the claimant thinks he is entitled to the percentage on commutation for medicines, medical attendance, quarters, fuel, and on service or duty rations (30 cents a day). He does not ask these things to be furnished in kind. That, he concedes, is impracticable. He claims a. money equivalent.
In the opinion of the court, Congress intended to confer upon the retired soldier the prescribed percentage of such allowances *315-only as bad been legally furnished him while in active service for his personal and exclusive use, and which, by law or valid regulation, had acquired a commutative money value or is susceptible of accurate calculation ; it does not include allowances made to his company as a collective body.
While in camp or at a military post the soldier has many advantages which he necessarily enjoys in common with his regiment, company, or mess.
Chaplains are employed to conduct public worship and look after the spiritual welfare of the Army.
Schools are provided by section 1231'of the Revised Statutes for the instruction of enlisted men “in the common English branches and the history of the United States.”
Surgeons, medicines, hospitals, and nurses are provided for the care and relief of all the troops in common.
In such 2>rivileges and allowances no one soldier lias any personal and exclusive right, neither has any equivalent in money been authorized by statute or regulation as commutation.
It is true that the claimant has procured from the Surgeon-General an estimate of the whole cost of the medical branch of the service, and, dividing it by the whole number of beneficiaries, has obtained the supposed average expenditure for each soldier.
A similar calculation could be made for the expense of maintaining religions services and schools with equal propriety. Such advantages are in no sense personal allowances, and calculations for commutation are altogether speculative.
The claim for quarters and fuel encounters similar, if not equal, difficulties.
Sleeping apartments, reading-rooms, mess-rooms, kitchen, heating, and cooking stoves, cooking utensils, etc., are provided — not for the exclusive use of the individual soldier, but to be enjoyed in common with the regiment, company, or mess to which he belongs. It is true a small amount of fuel is furnished to the company per capita, but not for exclusive individual use. It amounts to a little more than a cord and a half for the whole year, varying somewhat with the latitude, season of' the year, and average monthly temperature. It must be burned in common, for it takes many such allowances to keep one fire going. No commutation for fuel not consumed is paid to the soldier or his company. On the contrary, para*316graph 1861 of the regulations declares that “fuel issued to troops is public property for their use'; what they do not actually consume shall be returned to the quartermaster.”
Under sections 1293, 3296, and 1302 of the Eevised Statutes an accurate valuation has been au thoritati vely 'placed upon the allowances for clothing and rations, and whatever is not drawn in kind is paid in other articles or money. Not so with medicines, quarters, and fuel. These are not commuted to enlisted men. They are furnished to the soldier or company in kind, according to his necessities and the jiossible supply. No individual account is kept with him, and no money is paid to him or his company for under-consumption.
The claimant, in support of his construction, refers to General Order No. 104, dated September 3, 3884. By this order a monthly allowance for fuel and quarters is made to enlisted men who are detailed to act as clerks and messengers. This allowance is made, not as fixing a money value upon quarters and fuel in general, but to re imburse expenses necessarily incurred by the detail.
The validity of the order is very doubtful. It appears to-have been au indirect mode of obtaining clerk and messenger service not authorized by law. The order was virtually ann ulled by the Act of June 30, 1886 (24 Stat., 93), which made a special appropriation for a limited number of u enlisted men as general-service clerks and messengers,” and provided that it should “ be in full of all pay, commutation, and allowances.” At all events, the order had no relation to the present controversy.
Fortunately for the retired soldier, if the act of'1885, as understood and interpreted by the Secretary oi; War and the court, is less beneficial to him than its framers intended it to be, Congress can easily declare the exact amount which they then intended or now desire to pay him.
About the allowance for rations, the parties disagree only as to the amount. The commutation of a ration to a soldier on duty is 30 cents a day; off duty, on furlough, it is reduced to 25 cents a day. Upon which allowance shall the retiring percentage be calculated 1 The defendant calculates it upon the off-duty ration, because the condition of the soldier, off duty, on a furlough, and his condition, off duty, in retirement, is very much the same. That undoubtedly is true. In each case he renders no service to the Government. Why, then, would Con*317gress intend to make the ration one-fourth less in the one case than in the ocher % The facts stated do not sustain the conclusion. A good reason for reduction appears when the ease and comfort of retirement are compared with the hardships of service ; but no such reason appears by a comparison between retirement and furlough when the conditions are admitted to be the same.
In the opinion of the court the-claimant is entitled to 75 per cent, of the duty ration from the time of his retirement, September 25,1885, to the filing of his petition, September 28,1886, making 368 days, at 3§ cents a day.
Judgment will be entered for $13.80, which is the difference between what has already been paid and the additional percentage allowed by the court.