#### JAMES DAVISON v. THE UNITED STATES.

[Congressional,

10910.

Decided March 9, 1908.]

*On the Proofs.*

The Senate refers a bill under the Tucker Act. The court finds the facts, but in conclusion says: *“If said act is to be construed as retroactive then the above balance shown will be the correct amount due; but if not, then there is nothing due."*
      *309The Senate passes a resolution referring back the report of the court *".with directions to amend its said report by stating whether the said act ought to be considered as retroactive.”*

X. Whether a certain statute ought or ought not to be considered as retroactive is a question of law which the court is not at liberty to determine in a case referred under the Tucker Act, where the jurisdiction of the court is limited to the ascertainment and finding of facts for the consideration of Congress.

XI. Where there is no contention that the findings in a Congressional case were based on false or fraudulent testimony the case can not be reconsidered, though referred back by one of the Houses of Congress.

1II. It, however, appears that it was held in the case of *James Stewart*v. *The United States*that the *Act of 18th July, 1870*(Revised Statutes, section 1262) was retroactive and that no appeal was taken by the Government.

*The Reporters**statement of the ease:

The following is the preliminary .statement of the court with the findings of fact:

The following bill was referred to the court by resolution of the United States Senate on the 27th of June, 1904, under the act of March 3, 1887, known as the Tucker Act:

“A BILL Conferring jurisdiction on the. Court of Claims to try, adjudicate, and determine the claim of Brevet Captain (Second Lieutenant) James Davison, United States Army, retired.

“ *Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,*That the claim of Brevet Captain (Second Lieutenant) James Davison, United States Army, retired, for the balance • of salary or pay earned by him during his military service and not paid, be, and the same is hereby, referred to the Court of Claims, with full jurisdiction to try, adjudicate, and determine said claim, and whereupon render judgment in claimant’s favor for such amount as may be found just by said court without the interposition of any bar arising out of the existing statute of limitations. Bight of appeal to the Supreme Court is expressly reserved to the Government and to the claimant.”

The claimant appeared and filed his petition in this court, in which he makes the following allegations:

I. The petitioner served in the United States Army as an enlisted man from March 22, 1854, to October 30, 1862. He *310was appointed brevet second lieutenant, Third United States Artillery, October 22, 1862, and was promoted to second lieutenant on the same date. He accepted this promotion and entered upon the discharge of his duty as such officer on October 80, 1862, and continued to discharge the duties of the office until January 13, 1864, when, with the rank of second lieutenant, he was retired on account of wounds received in the battle of Gettysburg; with the rank of second lieutenant, mounted, July 28, 1866, and with the rank of second lieutenant not mounted, March 3, 1875. Subsequent to his retirement he served as a mustering officer in New York City in 1864; as mustering and disbursing officer at Brattleboro, Vt., in 1866; and as commissary of muster at Tallahasse, Fla., in 1866; was thereafter, in 1867, assigned to duty at headquarters for the second military district, Charleston, S. C., and in 1868 was assigned to duty in the third military district of Atlanta, Ga.

II. During the time the petitioner served as such commissioned officer in the army of the United States the following statutory provisions were respectively in force:

“ That every commissioned officer of the line or staff, exclusive of general officers, shall be entitled to receive one additional ration per diem for every five years he may have served or shall serve in the army of the United States.” (Act of July 5,1838, 5 Stat. L., sec. 15, p. 258.)

“ There shall be ‘allowed and paid to each commissioned officer below the rank of brigadier-general, including chaplains and others having assimilated rank or pay, ten per centum of their current yearly pay for each term of five years’ ‘service.’ ” (Act of July 15, 1870, now sec. 1262, Rev. Stat.)

III. The petitioner was paid for his services as a commissioned officer merely what other officers of his grade were paid, but was not allowed additional pay or additional rations or anything in commutation thereof on account of his length of service as an enlisted man in the Army of the United States, to his damage in the sum of $2,917.98, which amount is that stated by the Paymaster-General in report dated September 11, 1903, as the sum which would be still due him as longevity pay and rations but for the bar of the statute of limitations.

The following are the facts of the case as found by the court:

I. The claimant is a citizen of the United States, having served as an enlisted man in the Army of the United States *311from March 22, 1854, to October 29, 1862, and as a second lieutenant in said army from October 30,1862, until January 13, 1864, when he was retired because of disabilities incurred in the service.

II. During the period of claimant’s service as a commissioned officer in the Army of the United States the following statutory provision's respecting longevity pay were in force:

“ That every commissioned officer of the line or staff, exclusive of general officers, shall be entitled to receive one additional ration per diem for every five years he may have served or shall serve in the Army of the United States.” (Act of July 5,1838, 5 Stat. L., sec. 15, p. 258.)

“ That in computing the length of service of any officer of the army, in order to determine what allowance and payment of additional or longevity rations he is entitled to, there shall be taken into account and credited to such officer whatever time he may have actually served, whether continuously or at different periods, as a commissioned officer of the United States, either in the Eegular Army or, since the nineteenth day of April, eighteen hundred and sixtv-one, in the volunteer service, either under appointment or commission from the governor of a State or from the President of the United States.” (Act of March 2,1867,14 Stat. L., 434.)

“ There shall be allowed and paid to. each commissioned officer below the rank of .brigadier-general, including chaplains and others having assimilated rank of pay, ten per centum of their current yearly pay for each term of five years of service.” (Act of July 15,1870, now sec. 1262, Eev. Stat.)

“ Sec. 7. That on and after the passage of this act all officers of the Army of the United States who have served as officers in the volunteer forces during the war of the rebellion, or as enlisted men in the armies of the United States, regular or volunteer, shall be, and are hereby, credited with the full time they may have served as such officers and as such enlisted men in computing their service for longevity pay and retirement.” (Act of June 18,1878, 20 Stat. L., 150.)

III. The claimant has been paid the longevity rations and pay under the foregoing acts in accordance with the uniform construction of those acts by the War Department and the accounting officers of the Treasury from their respective dates, so long as saij acts were in force and until superseded by the act of February 24, 1881 (21 Stat. L., 346). No *312claim for any additional allowance, or protest that payments were not in full, was ever made by the claimant until the year 1899, since which time the claimant contends that the act of 1878, supra, is retroactive, and upon that theory procured a statement from the Paymaster-General under date of September 11, 1903, which he asked the court to set forth in the findings, as follows:

*Longevity record of James Davison, second lieutenant, retired.*

Services as enlisted man from March 22, 1S54, to October 21, 1862, eight years seven months.

Second lieutenant of artillery from October 22, 1862; retired January 14, 1864.

Entitled to mounted pay from July 28, 1866, to March 2, 1875, inclusive.

Paid as follows: First longevity, October 22, 1867 ; 20 per cent, October 22, 1872 ; 30 per cent, October 22, 1877 ; 40 per cent, June 18, 1878.

Entitled as follows: First longevity, October 22, 1862; second longevity, March 22, 1864; third longevity, March 22, 1869 ; 40 per cent, March 22, 1874.

Differences as follows:

1 ration a day, October 22, 1862, to March 21, 1864, 517 rations, 30 cents each_ $155.10

2 rations a day, March 22,1864, to October 21,1867, 2,618 rations, 30 cents each_ 785.40

1 ration a day, October 22, 1867, to March 21, 1S69, 517 rations, 30 cents each_ 155.10

2 rations a day, March 22, 1869, to July 14,1870, 960 rations, 30 cents each_ 288.00

27 months 7 days, at $21.65 per month (July 15, 1870, to October 21, 1872), being difference between pay second lieutenant, mounted and retired, with 10 per cent increase, and pay second lieutenant, mounted and retired, with 30 per cent increase_ 589. 77

17 months, at $11.34 per month (October 22, 1872, to March 21, 1874), being difference between pay second lieutenant, mounted and retired, with 20 per cent increase, and pay second lieutenant, mounted and retired, with 30 per cent increase_ 192. 84

43 months, at $17.81 per month (March 22, 1874, to October 21, 1877), being difference between pay second lieutenant, mounted and retired, with 20 per cent increase, and pay second lieutenant, mounted and retired, with 40 per cent increase 765. 94

*3137 months 26 days, at $6.47 'per month (October 22, 1877, to June 17, 1878), being difference between pay second lieutenant, mounted and retired, with 30 per cent increase, and pay second lieutenant, mounted and retired, with 40 per cent increase_ $51.09

Total _ 2,983.24-'

Deduct tax on $215.70, at 3 per cent_$6.47

Deduct tax on $1,175.84, at 5 per cent_58.79

- 65.26

Balance due-2,917.98

If said act is to be construed as retroactive, then the above balance shown would be the correct amount due; but if not, then there is nothing due.

*Dudley da Miehener*for the claimant.

*Mr. F. W. Collins*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

Per CuRiam :

The findings in the above-entitled cause were filed December 12, 1904, and certified to the President of the Senate pro tempore December 15, 1904. Thereafter, on June 28, 1906, the United States Senate passed the following resolution:

> “Whereas on the fifteenth day of December, nineteen hundred and four, the Court of Claims made report to the President of the Senate pro tempore in the case of James Davison, brevet captain, United States Army, retired, consisting of a certified copy of the findings filed by the court in the aforesaid cause, which had been referred to said court by a resolution of the Senate of the United States under the act of March third, eighteen hundred and eighty-seven. The bill so referred by the said resolution of the Senate on the twenty-seventh day of June, nineteen hundred and four, was S. 1588, Fifty-seventh Congress, first session, and related to the claim of James Davison, who was a brevet captain in the United States Army, retired, for longevity pay, in accordance with the act of June eighteenth, eighteen hundred and seventy-eight, Twentieth Statutes at Large, page one hundred and fifty. An official copy of said report is embodied in Senate Document Numbered Fifty-eight, Fifty-eighth Congress, third session, which is hereto attached and made a part hereof. In concluding its finding the court said: ‘If *314said act is to be considered as retroactive, then the above balance shown would be the correct amount due; but if not, then there is nothing due: ’ Therefore be it

> “ *Resolved by the Senate of the United*States, That the said report of the said Court of Claims be referred to the said court, with directions to amend its said report by stating whether or not the said act of June eighteenth, eighteen hundred and seventy-eight, Twentieth Statutes at Large, page one hundred and fifty, ought to be considered as retroactive for the purpose of this case and report at the next session of the Fifty-ninth Congress.”

By the resolution the court is asked to amend the findings so certified “ by stating whether or not the said act of June 18, 1878, 20 Stat. L., p. 150, ought to be considered as retroactive for the purposes of this case.”

It will be observed that the court .is asked to embody in the findings a question of law, *i. e.,*whether or not the said act of June 18,1878, is retroactive, while by section 14 of the act of March 3, 1887 (24 Stat. L., 505), under which the claim was referred, the court’s jurisdiction is, in express terms, limited to the findings of fact. Under the reference, therefore, the act was satisfied when the court caused the findings so made to be certified to. Congress.

There is no contention that the findings so certified were based on false or fraudulent testimony; and as the reference of the claim is based alone on the action of the Senate by the resolution referred to independent of section 14 of the act of March 3,1887, the court is without authority to amend the findings in conformity with the said resolution, and, therefore, the findings as originally made must stand.

But for the information of Congress we will say that on a like state of facts in the case of James Stewart under the special act of February 19, 1897 (29 Stat. L., 809), which operated to remove the bar of the statute of limitations as well as to confer upon the court jurisdiction to determine the claim, the court rendered a judgment in the claimant’s favor, from which no appeal was taken.

It is ordered by the court that said findings as originally made be recertified to Congress together with a copy of this opinion.