Bowen v. United States 14 Ct. Cl. 162

Hunt, J.,

delivered the opinion of the court:

The claimant was a soldier in the Army of the United States from 9th March, 1861, until 9th March, 1864, when he was honorably discharged. An invalid pension was granted to him on the 13th March, 1865, and was subsequently increased, such increase commencing June 6, 1866. During the time of his service in the Army he contributed to the Soldiers’ Home, located at Washington, D. C., the sum of 12£ cents per month, deducted from his monthly pay. On the 13th September, 1876, he was admitted an inmate of the Soldiers’ Home. From that date to the date of his filing his petition in this case he has continued to enjoy its benefits. During this period his pension has been paid to the treasurer of the Home.

He now brings this suit to recover the sum thus paid.

The claimant’s right is derived from the provisions of law found in Chapter II, Title LIX, of the Revised Statutes of the United States. The chapter is entitled “The Soldiers’ Home,” and was manifestly intended to constitute a complete body of laws by which the institution was to be regulated and controlled, the rights of its inmates defined, and the terms and conditions prescribed under which persons might become its inmates and entitled to enjoy its benefits. The chapter provides who shall be members of the Soldiers’ Home; who shall constitute a board of commissioners, and what shall be their duties; who shall be officers of the Home; how and by whom sites and buildings shall be procured; appropriates funds for its support; enforces a deduction of 12 J cents per month from the pay of every officer, musician, artificer, and private of the Army, to be *167passed to tbe credit of tbe Home; but expressly declares tbat iu the case of regiments of volunteers.- or other corps or regiments raised for a limited period or for temporary purposes, such deduction shall only be made with their consent; provides tbat the fact that a pensioner for wounds or disability has not contributed shall not preclude himfrom admission to the Home, but such pensioners shall surrender their pensions to the Home during their stay therein; designates what persons are entitled to the benefits of the Home, viz : 1st, every soldier who has served or may serve honestly and faithfully twenty years in the Army 5 2d, every soldier or discharged soldier, whether regular or volunteer, rendered incapacitated for further service from disease or wounds incurred in the service; 3d, the invalid and disabled soldiers, whether regulars or volunteers, of the war of 1812 and subsequent wars; excludes convicts and other unworthy persons from the benefits of the Home; provides for the discharge of those admitted for disability on the recovery of their health; and, finally, subjects all inmates to the Rules and Articles of War in the same manner as soldiers in the Army.

It is apparent from this summary that this chapter is designed to embrace the entire subject of all antecedent statutes relating to the Soldiers’ Home ; that it forms a revised and condensed statement of all the laws now in force on the subject, including all that was intended to be preserved of the old laws, and establishes with great minuteness and particularity of detail everything necessary to the entire and appropriate use, management, and discipline of tbe institution.

In order to determine the rights of the claimant involved in this suit, it becomes necessary to make a more critical examination of those sections of the law which regulate and define the terms upon which inmates are admitted to enjoy the benefits of the Home.

Section 4814 declares that—

‘‘AH soldiers of the Army of the United States, and all soldiers who have been, or may hereafter be, of the Army of the United States, and who have contributed, or may hereafter contribute, according to section 4819, to the Soldiers’ Home hereby created, and the invalid and- disabled soldiers, whether regulars or volunteers, of the war of 1812, and of all subsequent wars, shall, under the restrictions and provisions which follow, be members of the Soldiers’ Home, with all the rights annexed thereto.”

*168The contribution here referred to according to section 4819 is exacted in the following terms:

“ There shall be deducted from the pay of every non-commissioned officer, musician, artificer, and private of the Army of the United States the sum of 12£ cents per month, which sums so deducted shall, by the Pay Department of the Army, be passed to the credit of the commissionérs of the Soldiers’ Home. * * -- But the deduction of 12£ cents. per month from the pay of non-commissioned officers, musicians, artificers, and privates of l’egiments of volunteers, or other corps or regiments raised for a limited period, or for a temporary purpose or purposes, shall only be made with their consent.”

These sections of the statutes recognize and create two distinct classes of beneficiaries of the Home. The. first class is composed of all soldiers, &c., of the Army who have contributed qr may hereafter contribute to the support of the Home, and whose contributions are involuntary assessments required to be deducted from their monthly pay; and of non-commissioned officers, &c., of volunteers or other coiqis or regiments raised for a limited time or a temporary purpose, whose contributions are voluntary, and shall only be made with their consent.

The second class is composed of invalid and disabled soldiers, regulars or volunteers, of the war of 1812 and of all subsequent wars, whose services must have been anterior to the foundation of the Home, and who, therefore, could not have contributed.

In other words, these sections clearly distinguish between one class of persons who are contributors and another who are non-contributors.

To those who are contributors, the doors of the Home are at once thrown open; but to those who are non-contributors they are closed, except on prescribed conditions. Soldiers wounded or disabled in the service, to whom pensions have been granted, although they may not have contributed, are not precluded from admission to the Home; but they must surrender their pensions to it during the time they remain there and enjoy its bepefits. Sention 4820 of the Revised Statutes declares that—

“ The fact that one to whom a pension has been granted for wounds or disability received in the military service has not contributed to the funds of the Soldiers’ Home shall not preclude him from admission thereto. But all such pensioners shall surrender their pensions to the Soldiers’ Home during the time they remain therein and voluntarily receive its benefits.”

The object and spirit of the whole legislation seem to ha ve *169been to secure and maintain, by means.of contributions levied upon all, a suitable home for soldiers who have grown old or become disabled in the service of their country. The right of membership is made to depend on the fact of contribution.' Those who contributed out of their pay during their service become members; but pensioners who did not then contribute are required to contribute now, on becoming members, by surrendering their pensions during the period they enjoy the benefits of the Home. The forced- contribution per month is so light and so judiciously adjusted as to be scarcely felt by those upon whom it is levied, and seems to have been based, as was suggested in argument, upon a principle analogous to that of the contract of insurance, where one of many who pay small assessments, upon the happening of a contingency, derives disproportionately great advantages.

This interpretation of the statutes is in entire harmony with section 4821 of the chapter under consideration. That section declares who only shall be entitled to the benefits of the Home, and excludes all others. - Those admitted are, 1st, soldiers who have served or may serve in the Army faithfully for twenty years; 2d, those who may have suffered or may suffer under disabilities in the service; and, 3d', the invalid soldiers of the war of 1812 and subsequent wars. The first class must necessarily have contributed monthly under the law. The second must also have contributed, in like manner, if they became disabled since the foundation of -the Home in 1851; and the third class must have been pensioned before the Home was established, and they contribute by surrendering their pensions during their stay there. The rule of contribution applies alike to all classes who desire the benefits of the institution and are entitled to them.

From what has been said, it follows that the claimant, having contributed to the funds of the Soldiers’ Home, is entitled to its full benefits, and that he is not required to surrender his pension, as other pensioners are required to do in case they have not previously contributed to the institution.

It is contended in behalf of the Government that, if the terms of section 4820 of the Revised Statutes may be fairly interpreted so as to reproduce the law as it previously stood, to give to the section a modifying effect would be unwarranted. But. in this instance the terms are too plain to admit of any doubt. *170There is no room for interpretation. If the section works a modification of the previous laws, the court is not at liberty to make it work otherwise; in other words, to disregard its provisions, and, by a forced construction, to reproduce the old law in their stead. Courts sit to administer and not to make laws; and although it is an admitted rule that they may, upon occasion, look beyond a statute which is the subject-matter of interpretation for the purpose of ascertaining its meaning, that rule has no application to cases where the language is plain and unambiguous, the grammatical structure simple and accurate, and the meaning of the whole intelligible and obvious to any ordinary understanding. Whatever palpable modifications, alterations, or changes of pre-existing laws may be found in the Bevised Statutes are as much in force as any of their other provisions.

The principle applicable to interpreting a revision of laws similar to that now under consideration has been so often enunciated as to become familiar. A reference to a few authorities of acknowledged reputation will not, however, be inappropriate:

“It is a well-settled rule,” said the supreme court of Massachusetts, Wilde, J., “that when any statute is revised, or one act framed from another, the parts omitted are not to be revived by construction, but are to be considered as annulled. To hold otherwise would be to impute to the legislature gross carelessness or ignorance; which is altogether inadmissible. We are not, .therefore, at liberty to suppose that the proviso or exception was omitted by mistake.” (Ellis v. Page, Pick., 45.)

The rule is thus laid down in Smith’s Commentaries on Statutory Construction, § 785: “ Where some parts of a revised statute are omitted in the revising act, the parts omitted are not to be deemed as revived by construction, but are to be considered as annulled.” And again, § 786, id.: “A subsequent statute, revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on principles of law- as well as on reason and common sense, operate to repeal the former.”

The United States circuit court for New York, in the case of Boucicaultv. Hart, applied these principles in the interpretation of these very Bevised Statutes. The court held, through Mr. Justice Hunt, its organ: “The various acts mentioned have been referred to to show to some extent the history and previous *171condition of the law on the subject under consideration. They are all superseded by the Reidsed Statutes of the United States, a work undertaken by authority of a statute passed June 27, 1866, and taking effect on 1st December, 1873.”, (13 Blatch., 52. See also Holmes v. Wilts, 11 La. Ann., 446.)

The case of jurors in the United States courts who may be required to take the additional oath prescribed in section 821 of the Revised Statutes is in point to show the effect given to the provisions of these statutes. Although the oath had been by an act of Congress expressly abolished, yet, in consequence of its having found its way into the Revised Statutes, and, being there, it is treated as a valid enactment, and has been held to be so by the courts. In United States v. Hammond (2 Wood C. C., 203), the court said: “The compilers may have exceeded their authority; Congress may not have designed to re-enact section 820, but it has done so, and we cannot go behind the law and cure the mistakes and inaccuracies of Congress.” “We are bound,” said Mr. Justice Buller, in Jones v. Smart (1 Term, 44), “to take the act of Parliament as they made it.”

But the repeal of the sections of the acts of 1851 and 1859 does not result solely from the fact that the subject-matter of each of them is embraced in the provisions of section 4820, Revised Statutes. Section 5596 of those statutes expressly repeals all acts prior to the year 1873 “any portion of which is embraced in any section, of the revision, and provides that the section applicable shall be in force in lieu thereof.” (Rev. Stat., §§ 5596, 1085.) Congress evidently did not intend to re-enact either of the formér statutes, blit did intend to enact a new statute in lieu of them both.

These Revised Statutes were enacted in order to present the entire body of the laws of the United States to the people in a concise and compact form, extricated from the confusion in which they had become involved in seventeen large volumes through which they lay scattered. The object was to relieve one from the necessity of having recourse to the earlier statutes, except in cases of grave doubt or of absolute conflict between different sections of the revision. If errors have crept into the work of the commissioners, it is better that they should stand until corrected by subsequent legislation than that the whole body of laws should be thrown into such doubt and confusion that no one may longer feel any confidence that he knows *172what the law is by reading the latest enactment made by Congress. Congress seems to have entertained these views, and to have acted in accordance with them. Thus we find that in 1875 an act was passed “ to correct errors and supply omissions in the Revised Statutes of the United States,” and that in several hundred instances corrections of errors were expressly made in these statutes (18 Stat. L., 31C). Other corrections have been since made by other similar acts, thus showing that as the Revised Statutes stand they constitute, and are held to be, the law, until altered or repealed by express subsequent legislation.

But if we recur to previous laws on this subject, their history and condition, we are justified in believing that such changes as may have been effected by the Revised Statutes are not, in this instance, the result of - accident or oversight, but were effected deliberately and ex industria.

Under the original statute founding the “Military Asylum,” all soldiers who contributed became members, and pensioners who had not contributed became entitled to its benefits only upon transferring their pensions (9 Stat. L., 595, 596, §§ 1, 5, 7). So the law stood for 8 years, when, in the appropriation act of March 3,1859, it was provided that pensioners of the war of 1812 and of subsequent wars might be admitted to the Asylum, and that all pensioners should transfer their pensions during the time they remained therein.

From this brief statement we at once perceive that the legislation had become involved in uncertainty and contradiction when the revision of laws was undertaken. An examination of section 4820, Revised Statutes, will show that portions of all of the previous sections on the same subject-matter are embraced in its provisions. It is made up of passages- taken from both statutes. The order of the sentences adopted is sometimes inverted and their phraseology is often changed. These alterations and amendments plainly indicate a careful purpose' to settle clearly for the future and to re-establish the system of contribution originally enacted for the regulation of the Asylum.

An effort is made to construe this section 4820 as applying to all pensioners and requiring all to surrender their pensions upon entering the ‘Home. But this construction is evidently forced and is overthrown by the plain language of the section itself. It seems to be only necessary to read the language in *173order to refute the construction. The section is reproduced at the expense of repetition, and is as follows:

“ Sec. 4820. The fact that one to whom a pension has been granted for wounds or disability received in the military service has not contributed to the funds of the Soldiers’ Home shall not preclude him from admission thereto; but all such pensioners shall surrender their pensions to the Soldiers’ Home during the time they remain therein and voluntarily receive its benefits.”

And it is argued that the words “all such pensioners” here mean “all persons to whom pensions have been granted for wounds,” and that “the fact” mentioned that one has not contributed is not descriptive of the pensioner. The argument is unsound. The fact referred to in the statute is the fact of non-contribution by pensioners, and is as much a description of the individuals as the other clause speaking of them as pensioners for wounds. The word suoh” means pensioners of the like kind, that is, pensioners on account of wounds who have not contributed. If it had been the intention to include all pensioners, the word “such” was entirely inappropriate, and should not have been employed. But it has been used, and by every principle of grammatical construction it refers back to the clauses of the section which designate and describe a certain class of individuals. Had the word “ such” been omitted from the section, it would have stood thus: “ But all pensioners shall surrender their pensions.” The sentence might then have meant what the defendants contend it means. But unless we argue the word “ such” out of the statute, it must stand and have significance. Interpreted by the context, it refers to those pensioners who have not contributed, and not indiscriminately to all.

The construction given to these statutes by the Commissioner of Pensions was in accordance with these views when this case arose, and the interpretation by that officer is entitled to much weight. In the case of the United States v. Moore, the Supreme Court said: - “The construction given to a statute by those charged with the duty of executing it is always entitled .to the most respectful consideration, and ought not to be overruled without cogent reasons.” (Edwards v. Darby, 12 Wheat., 210, United States v. The State Bank, 6 Pet., 29; United States v. McDaniel, 7 id., 1.) The officers concerned are usually able men aud masters of the subject. Not uufrequently they are the *174draftsmen of tbe laws they are afterwards called upon to interpret.” (95 U. &, 763.)

If, through inadvertence or precipitancy, as is claimed, Congress has thought proper, in fit and unmistakable terms, to provide for the galLant and patriotic men who have become disabled in the military service of the country a home towards the support of which their slender means have contributed and at the same time to continue to .pay their pensions, it is for Congress, and not for the courts, to repair the error complained of and to retrench its inconsiderate liberality. For us to do so were to transcend the judicial prerogative and to invade the constitutional sphere of an independent and co-ordinate department of the government.

It is therefore ordered, adjudged, and decreed that there be judgment in favor of the claimant as prayed for.

Draiíe, Ch. J.,

dissenting:

I am unable to concur with the majority of the court in the judgment just rendered, and deem the main question in the case of sufficient importance to justify a full expression of the grounds of my dissent.

Whether the claimant shall recover the small sum of $204.00 is of little moment to any but himself; but aback of that lies a new and very important question as to the force and effect of the Devised Statutes, promulgated by the act of June 22, 1874, to revise and consolidate the statutes of the United States in force on the first day of December, anno Domini one thousand eight hundred and seventy-three.”

What those Devised Statutes were intended by Congress to embrace is not' only expressed in the title of that act, but also in its section 5595, in these words :

" The foregoing seventy-three titles embrace the statutes of the United States, general and permanent in their nature, in force on the 1st day of December, one thousand eight hundred and seventy-three, as revised and consolidated by commissioners appointed under an act of Congress, and the same shall be designated and cited as The Devised Statutes of the United States.”

This clear and explicit declaration precludes the idea that the act embodying the Devised Statutes was intended as legislation on the various subjects included in it. Prima facie, then, we are not justified in expecting to find there changes of previous laws.

*175Nevertheless, it is quite certain that the Revised Statutes do contain such changes, and wherever they appear so ''clearly as to rebut the contrary presumption raised by section 5595, no court has authority to disregard them/

But when, in any chapter or in any section, the phraseology or the arrangement of clauses or words, or both, differ from the previous laws on the same subject, and. it is doubtful whether Congress intended by changing the phraseology or the arrangement, or both, to make a different law from that before existing, then it is the function of the judiciary, in a case properly presented, to declare what was the intention of Congress. This case is one calling for the exercise by this court of that function.

The claimant became a member of the Soldiers’ Home after the passage of the act of June 22, 1874, and his rights, as such, are therefore to be determined mainly by the portion of the Revised Statutes embraced in Chapter Two of Title LIX, including sections 4814H824; the question in controversy being more directly connected with section 4820.

Unless the provisions of that chapter changed the previous law, the claimant has no case. To determine that question, we must in the outset see how that law stood.

By section 1 of the Act of March 3, 1851 (9 Stat. L., 595), authorizing the establishment of the Soldiers’’ Home, it was required that all members of the Home should have contributed to its fionds, according to section 7 of the same act, which authorized twenty-five cents per month to be deducted for that purpose from every soldier’s pay. This was by section 7 of the Act of March 3,1859 (11 Stat. L., 431) reduced to twelve and a half cents per month.

By section 4 of the act of 1851 the classes of persons who should be entitled to the rights and benefits of membership in the Home were designated, as follows:

“ 1. Every soldier of the Army of the United States who shall have served or may serve, honestly and faithfully, twenty years in the same.”

This referred only to soldiers of the Regular Army.

“2. Every soldier and every discharged soldier, whether regular or volunteer, who shall have suffered by reason of disease or wounds incurred in the service and in the line of his duty, rendering him iiicapable of further military service, if such disability has not been occasioned by his own misconduct.”

*176This specification would of course include pensioners for “disease or wounds incurred in the service and in the line of duty.”

By the operation of section 1, requiring previous contribution to the funds of the Home by all who became members of it, no l>ensioner who had not contributed to those funds could become a member. This excluded all soldiers pensioned before the act of 1851 was passed; for they could not possibly have contributed to funds which had no existence until after that act took effect.

To prevent this exclusion, this proviso of section 5 of that act was inserted:

“ Provided, That any pensioner on account of wounds or disability incurred in the military service, although he may not have contributed to the funds of the institution, shall be entitled to all the benefits herein provided, upon transferring Ms pension to said asylum for and during the period that he may voluntarily continue to receive such benefits.”

The result of these two provisions was, as regards pensioners, to divide them into two classes, those pensioned before and those pensioned after the act of 1851. The former were required to surrender their pensions on entering the Home; the latter were not. The unjust and unfortunate character of this discrimination could not, in the nature of things, practically appear until the lapse of sufficient time after the passage of the act for soldiers to become disabled by disease or wounds incurred after that time, all of whom would necessarily have contributed to the funds, and therefore could not have been required to surrender their pensions. When such began to enter the Home, the unjust character of the law was practically displayed in requiring one who had been pensioned before the act of 1851 to make his contribution to the funds by giving up his pension, while one pensioned after that act, and who had out of his pay contributed even no more than a single payment of 25 cents, could have all the benefits of the Home and keep his pension besides.

This condition of things evidently required a corrective, which was applied by section 6 of the above-mentioned act of March 3,1859, as follows:

“All pensioners on account of wounds or disability incurred in the military service shall transfer and surrender their pensions to the institution for and during the time they may remain therein and voluntarily continue to receive its benefits.”

*177After tbis enactment no pensioner could enter tbe Home without surrendering bis pension; and so stood tbe law up to tbe time of tbe Revised Statutes. Did tbe Revised Statutes change that law? Tbe claimant contends that they did; tbe defendants insist that they did not.

Before looking to tbe particular section of tbe revision by which tbe decision of tbis question must principally b.e effected.. I will advert to some doctrines bearing on tbe interpretation of statutory revisions which I consider sound.

1. It has been held in several States that when the law antecedently to a revision was settled either by clear expressions in tbe statutes or adjudications on them, tbe mere change of phraseology in tbe revised act shall not be deemed a change of tbe law, unless such phraseology evidently purports, and palpably requires tbe courts to bold, an intention in tbe legislature to work a change. (Taylor v. Delaney, 2 Caines’ Cases, 113; Yates’ Case, 4 Johns., 317, 359; Mooers v. Bunker, 9 Fos., 420; Burnham v. Stevens, 33 New Hamp., 247; Ash v. Ash, 9 Ohio St., 383; Van Camp v. Board of Education, id., 406; Conger v. Barker, 11 id., 1; Croswell v. Crane, 7 Barb., 191.)

2. Where a section in a revision was intended as a substantial re-enactment of three sections of a previous act, it was held in Kentucky that neither tbe mere change of phraseology nor tbe fact that tbe substance of three sections was embodied in one authorized tbe inference that any radical modification of the law itself was intended. (Overfield v. Sutton, 1 Met. Ky., 621.)

3. When the general laws of a State were in tbe shape óf a code, and a revision thereof was bad, which separated tbe various provisions and transposed and distributed them under different beads in different. statutes, it was held in Wisconsin that tbis change of arrangement furnished no'evidence that tbe legislature intended to limit or change tbe appbcation (Buckstaff v. Hanville, 14 Wis., 77), and that tbe scattered provisions were to receive tbe same interpretation as when the code constituted one act. (Smith v. Smith, 19 Wis., 522.)

4. It was held by tbe Supreme Court of New York, Cowen, J., delivering tbe opinion, that in ascertaining tbe intent of tbe legislature in a revision of statutes tbe court might look to tbe marginal notes of tbe revisers for aid. (Douglass v. Howland, 24 Wend., 35, 46.)

These rulings seem to me to cover tbe main points in regard *178the interpretation of revisions of statutes and to be entitled to great weight. Guided by them, in connection with section 5595, I proceed to inquire whether the Revised Statutes do in fact change the previous law in relation to surrenders of pensions by members of the Home.

As before shown, section 6 of the act of 1859 required all pensioners to surrender their pensions on entering the Home.

The claimant contends that that provision is not to be formd in the revision, but a different one, in section 4820, which in •effect sets aside section 6 of the act of 1859 and reinstates the provisions of the act of 1851, the unjust character of which has been shown. Section 4820 is as follows :

“ The fact that one to whom a pension has been granted for wounds or disability received in the military service has not contributed to the funds of the Soldiers’ Home shall not preclude him from admission thereto. But all such pensioners shall surrender their pensions to the Soldiers’ Home during the time they remain therein and voluntarily receive its benefits.”

Did Congress intend in this section to legislate or merely to embody existing law ? In deciding that point, the words should be studied, not by themselves, nor merely in connection with the other provisions of that chapter, but in connection with the whole act promulgating the revision; and hence the influence of section 5595 in their interpretation.

Upon examining that chapter, I find that it embodies all the provisions of the acts of 1851 and 1859, except one of a temporary character, and another not bearing on this case, which had probably been previously repealed. And all those provisions are retained in the revision, in large part, in the very words of those acts. The only instance in which such a change in phraseology and arrangement was made, as fairly to admit of question as to the intent of Congress, is section 4820.

From the results of that examination, taken in connection with the general terms of section 5595, I am led to the general conclusion that, prima facie, Congress did not, in that chapter, intend to legislate in regard to th,e Home, but merely to revise and consolidate existing laws.

But yet it may be that Congress did intend to legislate; and in order to consider that question properly I must, in direct connection, again quote section 4820:

“The fact that one to whom a pension has been granted for wounds or disability received in the military service has not *179contributed to tbe funds of the Soldiers’ Home shall not preclude him from admission thereto. But all such pensioners shall surrender their pensions to the Soldiers’ Home during the time they remain therein and voluntarily receive its benefits.”

It is claimed that the word such,” in the second sentence there, confines the operation of that sentence to pensioners who had not contributed out of their pay to the funds of the Home; and that, as the claimant had so contributed, he is not required to surrender his pension.

In considering this position, the point is whether either of the two clauses of that section is new matter, or whether the section is made up of parts of previous laws. If the former, it is legislation; if the latter, it is only revision and consolidation. That the two sentences are of the latter description I have not a doubt, for I,have examined the draft of the revision by the commissioners, as reported by them to Congress, and find that opposite section 4820, in the margin, are references to section 5 of the act of 1851 and section 6 of the act of 1859, as the places from which the two sentences of section 4820 were taken. But much higher and more conclusive evidence of the intention of Congress is afforded by a comparison of section 5 of the act of 1851 with the first sentence of section 4820, and of section 6 of the act of 1859 with the second sentence of that section.

In the first comparison the provisions stand as follows :

" Section 5 of act of 1851. — Any pensioner on account of wounds or disability incurred in the military service, although he may not have contributed to the funds of the institution, shall be entitled to all the benefits herein provided.

" First sentence of section 4820. — The fact that one to whom a pension has been granted for wounds or disability received in the military service has not contributed to .the funds of the Soldiers’ Home shall not preclude him from admission thereto.”

I am entirely unable to discover any difference between those provisions except in phraseology. In my view, they both mean the very same thing.

Comparing section 6 of the act of 1859 with the second sentence of section 4820, they stand as follows:

" Section 6 of act of 1859. — All pensioners on account of wounds or disability incurred in the military service shall transfer and surrender their pensions to the institution for and during the time they may remain therein and voluntarily continue to receive its benefits.

“Second sentence of section 4820. — But all such pensioners *180shall surrender their pensions to the Soldiers’ Home during the time they remain therein and voluntarily receive its benefits.”

Between these two provisions I am equally unable to discern any shade of difference, except that made by the insertion of the Avord “ such.” To my mind, then, it is clear that section 4820 was made up of those tAAo provisions from the acts of 1851 and 1859, of which it would have been a complete reproduction but for the insertion of that one Avord. Does that insertion chang’e the meaning', and thereby show an intention in the commissioners and in Congress to change the law 1 I think not, on the folloAving grounds:

1. In my opinion, the Avhole difficulty grows out of an inadvertence of the commissioners in their effort to combine' in one section tAAo separate jn’OAdsions taken from two several acts; and the inadvertence consisted in placing the provisions together in the chronological order of their original enactment, instead of giving them in an order which would unmistakably have retained the Iuav as it was. Transpose the sentences and leave out the words “but” and “such,” and the section would read thus:

“All pensioners shall surrender their pensions to the Soldiers’ Home during the time they remain therein and Amluntarily receive its benefits. The fact that one to whom a pension has been granted for wounds or disability received in the military service has not contributed to the funds of the Soldiers’ Home shall not preclude him from admission thereto.”

So framed, it Avould exactly embody and express the previous law.

But is it an admissible mode of finding legislative intention thus to transpose sentences % I think it is. The real question is not whether it is arranged in the most perspicuous and convenient way, but whether the previous law is so clearly retained in the revision that, notwithstanding the changed arrangement of sentences, it can fairly and legitimately be seen to be in reality the same. Careless unskillful, unsystematic, and illogical aarangement of sections, clauses, sentences, and words in American statutes are too prevalent to be allowed to defeat the manifest intention of the legislature. If, as in this case, one arrangement of sentences in a section of the revision Avould seem to indicate an intention to change the previous law, while another arrangement makes it quite clear that a change was not intended,.! have no doubt that the latter should be adopted; *181for it coincides with, the judicial presumption that a revision is intended to embody the existing law, and also fulfills the express declaration of section 5505, that the Revised Statutes embrace the statutes * * * in force on the 1st day of December, 1873.”

2. Other considerations tend to the same conclusion, and are proper to be adduced, as aiding the judicial mind to discover the intention of Congress in making and promulgating the revision. The question properly and quite inevitably arises, AThy should Congress, out of all the provisions of the acts of 1851 and 1859, have selected this particular one for a change ? Can it be justly claimed that the act of 1859, requiring all pensioners to surrender their pensions, worked an injustice or hardship which appealed to Congress for relief 9 I have heard no such claim. On the contrary, it is clear to me that the act of 1851 perpetrated a gross injustice (afterward removed by the act of 1859) when it took away his pension from an old and perhaps totally disabled pensioner because he had not contributed what he had not had the opportunity to contribute, and allowed a young and only partially-disabled pensioner to have all the benefits of the Home and keep his pension besides, merely because he had contributed 12£ cents, or, as in the case of this claimant, $4.57, out of his pay to -the funds of the Home.

Of course I understand that this view should not necessarily control the interpretation of plain and clear words; but when the question is not as to the meaning of certain words in an act of original legislation, but whether it was the intention of Con-' gress, by the use of those words in a revision, to reinstate on the statute-book a former system, which more than fifteen years-before it had by amendatory law condemned and cast out, then the unjust character of that system affords ground for presuming that Congress did not intend to return to it.

The conclusion that they did not so intend is enforced by the consideration that neither the commissioners nor Congress, if they in fact intended to make a change, would probably have attempted it by the mere interpolation of a word of reference, but would have expressed their intention in direct and plain terms.

The conclusion at which I have thus arrived is attainable, also, by an examination of the text of section 4820, in regard to which I am satisfied with the views expressed by the Attor*182ney-General in bis opinion given to tbe Secretary of tbe Interior, as follows:

“But tbe same conclusion is reached by a more strictly grammatical interpretation of section 4820. Thus tbe words ‘all sueb pensioners/ in tbe second sentence of that section, may be taken to refer to all pensioners wbo come within tbe words of description used in tbe preceding sentence, namely, ‘one to •whom a pension bas been granted for wounds or disability received in tbe military service.’ Tbe ‘fact’ mentioned in sucb preceding sentence, that ‘be bas not contributed to tbe funds/' is not descriptive of tbe pensioner, but of a circumstance or condition which may or may not be affirmed of tbe pension already described.

“Had tbe design been to limit tbe application of tbe second sentence to a pensioner wbo bas not contributed, tbe legislature, instead of saying, ‘But all sucb pensioners shall surrender their pension/ &c., would probably have said, ‘But in sucb case tbe pensioner shall surrender bis pension/ &c., or have employed some equivalent expression referring to tbe circumstance or condition above mentioned as well as to tbe pensioner.”

But even supposing that tbe letter of section 4820 can be forced into tbe construction placed upon it by tbe court, tbe question then is whether that construction shall prevail against tbe clearly-expressed intent of Congress to embody in tbe revision tbe law as it previously stood. A sound principle in statutory construction is thus formulated by high judicial authority, that a thing wbicli is within tbe intention of tbe makers of a statute is as' much within tbe statute as if it were within tbe letter, and a thing which is within tbe letter of tbe statute is not within tbe statute unless it be within tbe intention of the makers. (People v. Utica Ins. Co., 15 Johns., 358, 381; Jackson v. Collins, 3 Cowen, 39; Canal Co. v. Railroad Co., 4 Gill & Johns., 1.) And in "Vermont I find a case which so clearly,, sensibly, and ably supports tbe second clause of that formula 'and is so apposite to tbe present discussion, that I present tbe following extracts from tbe opinion of tbe court:

“It is urged that when tbe language of a statute is plain, clear, and intelligible, it is itself tbe best, and should be the only, expositor of tbe meaning of tbe legislature. Theoretically, this argument would seem to furnish a safe rule of interpretation; practically, it is not always safe or sensible. A rigid adherence to it wouid not unfrequently involve us in contradictions, absurdities, and palpable violations of tbe real intention of tbe legislature. Tbe ignorance and inexperience of some legislators; tbe inability of even tbe wisest to foresee all*tbe bearings and *183connections of an act; tbe great number of statutes proposed for enactment and tlie variety of minds that modify and amend them; tbe baste of legislation; tbe imperfection, of language, and want of skill, accuracy, and perspicuity in tbe use of it; and, not unfrequently, want of accuracy and clearness of ideas; these all contribute to produce errors, imperfections, and inconsistencies in tbe phraseology of statutes. Hence, tbe letter of tbe law is found by experience not to be in all cases a correct guide to tbe true sense of tbe lawgiver; hence have arisen those rules for tbe construction of statutes which look to tbe whole and every part of a statute, and tbe apparent intention derived from tbe whole, to tbe subject-matter, to tbe effects and consequences, and to tbe reason and spirit of tbe law, and thus ascertain the true meaning of tbe legislature, though tbe meaning so ascertained conflict with tbe literal sense of tbe words. * * * • Illustrations and authorities are unnecessary to sustain a principle so well settled. We may, however, refer to one derived from an old book, which, in its treatise on this subject, Judge Story calls ‘an excellent summary of tbe rules for construing statutes,’ and which for its sense and point is worthy of attention:

“ ‘ In some cases, tbe letter of an act of Parliament is restrained by an equitable construction; in others, it is enlarged; in others, the construction is contrary to the letter. In order to form a right judgment whether a case be within tbe equity of a statute, it is a good way to suppose tbe lawmaker present, and that you have asked him this question: Did you intend to comprehend this case? Then you must give yourself such answer as you imagine be, being an upright and reasonable man, would have given. If this be that be did mean to comprehend it, you may safely bold tbe case to be within tbe equity óf tbe statute; for while you do no more than be would have done, you do not act contrary to tbe statute, but in conformity thereto.’ (Bacon’s Abridgment, Title Statutes.)

“Applying this rule to tbe case at bar, we think all must agree that if tbe lawmaker were present and so interrogated, be would answer that be did not intend to comprehend it within this statute. To bold to the contrary would attribute to this section a meaning repugnant to tbe whole spirit and reason of the statute, in direct conflict with other sections of tbe act and with tbe very basis of all our legislation on tbe subject.” (Ryegate v. Wardsboro, 30 Vt., 746.)

Influenced by these views, tbe Supreme Court of Yermont decided that tbe law before them did not mean what its words plainly imported.

Many other cases might be cited where courts have given a meaning to a statute directly contrary to its letter; but there is no need to cumber this already long opinion by their citation. *184Suffice it to say tliat tbe letter of sectiou 4820, construed as tbe claimant desires, is contrary to tbe spirit and intent of Congress in tbe Revised Statutes, as expressed in section 5595, and rests upon a narrow and strained interpretation, wbicb seems to me to stick in tbe bark and not to reach tbe core of tbe question.

In every light in wbicb I have been able to view tbe subject, my unhesitating conclusion is that Congress intended tbe law applicable to this case to remain in statu quo, and it does in fact so remain; and therefore that tbe claimant has no right to recover tbe amount of bis pension-money wbicb has during bis membership in tbe Soldiers’ Home been paid over to that institution.