#### CLAUDE C. BROGDEN v. THE UNITED STATES.

[No. 27526.

Decided May 25, 1908.]

*On the Proofs.*

An enlisted man in the Philippines is permitted to leave the service and enter business before his regiment sails for home under a general order that officers and enlisted men *“.who desire to leave the service and enter business and pass their fortunes with the Philippine Islands will be allowed to do so upon satisfactory evidence of their honesty of purpose, to be submitted with the applications.”*Subsequently the claimant is discharged at his own request to engage in private busi- . ness. He is not paid travel pay upon discharge.

I. The *Act 8th February, 1901*(31 Stat. *L.,*p. 762), provides that any officer of volunteers and any enlisted man who was discharged in the Philippine Islands and there reentered the service shall, when discharged, *“receive for travel allowances, from the place of his discharge to the place in the United States of his last preceding appointment or enlistment, k cents per mile.”*This act does not extend to a soldier who was permitted to leave the service to enter business before the discharge of his regiment or before its return to the United States and • where the discharge was for his own benefit.

II. In such a case the burden of proof is on the claimant to show that his discharge was not for his own benefit.

*The Re-porters’*statement of the case:

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

I. The claimant, Claude C. Brogden, was enrolled May 3, 1898, at Des Moines, Iowa, and mustered into the service as a private in Company C, Fifty-first Regiment Iowa Volunteer Infantry, on May 30, 1898, at Des Moines, Iowa. He was discharged from the service as a private June 30, 1899, at San Fernando, P. L, and enlisted at Manila, P. I., on July 4, 1899, and was assigned to Company G, Thirty-sixth United States Volunteer Infantry. He, was discharged as private from the last stated service at Manila, P. I., on January 23, 1901, his services being no longer required.

II. On December 18, 1900, at Manila, P. I., the following General Orders, No. 145, were issued from the headquarters of the division of the Philippines in words and figures fol*567lowing, to wit: “ (2) Under telegraphic authority of the Secretary of War dated October 18, 1900, officers and enlisted men of the volunteers whose service has been honest and faithful who desire to leave the service to enter business and pass their fortunes with the Philippine Islands will be allowed to do so upon satisfactory evidence of their honesty of purpose, to be submitted with the applications. Officers who desire to take advantage of this permission should at once submit their resignations through channels to these headquarters to be cabled to the Adjutant-General of the Army. Enlisted men should submit applications for discharge through channels to department commanders, who, when satisfied with the evidence, will issue the necessary orders for discharge by company or other immediate commanders, the orders to cite as reasons for the discharge, £ services being no longer required,’ and reference made to this order. Enlisted men will not be discharged under this order until notification has been sent to the department commander from these headquarters designating the organization to which they belong for return to the United States.”

III. The claimant was not paid travel pay upon discharge from the Thirty-sixth United States Volunteer Infantry, as stated in finding 1, his claim for such pay having been rejected by the Auditor for the War Department on the ground that the act of February 8, 1901, providing travel pay (31 Stat. L., 652) was not retroactive.

If entitled to travel pay at 4 cents per mile for 2,008 miles, the distance from San Francisco, Cal., to Des Moines, Iowa, the place of original enrollment,- there would be due the claimant for travel pay $80.32.

*Mr. Ciarle McKercher*for the claimant. Messrs. *George A. and William B. King*were on the brief.

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

Howrt, Judge,

delivered the opinion of the court:

This is a claim for travel allowances under an act approved February 8,1901, entitled “ An act for the payment of travel allowances, on discharge from the volunteer army, to certain officers and enlisted men who reentered the military service *568of the United States in the Philippine Islands.” (31 Stats., 162.) It provides:

> “ That any officer of volunteers, and any enlisted man of either regulars or volunteers, who was discharged in the Philippine Islands, and there reentered the service through commission or enlistment in the Thirty-sixth or Thirty-seventh regiments, United States Volunteer Infantry, or in the Eleventh Regiment, United States Volunteer Cavalry, shall, when discharged, except by way of punishment for an offense, receive for travel allowances, from the place of his discharge to the place in the United States of his last preceding appointment or enlistment, four cents per mile: *Provided^*That for sea travel on discharge, from or between our island possessions, actual expenses only shall be paid to officers, and transportation and subsistence only shall be furnished enlisted men: Provided, further, That officer and enlisted men discharged in the United States under the provisions of this act shall not be entitled to transportation or travel allowance back to the Philippine Islands.”

The differences of opinion existing among the members of the court as to the retroactive effect of the foregoing statute (thereby delaying any decision) relate to the words in the foregoing statute “when discharged,” some of the members of the court being of opinion that the events and circumstances surrounding the men who were discharged from the service just before the passage of the act justified an interpretation sufficient to warrant judgment for the claimant, while others of the court took a different view because of the general rule that there must be something on the face of an act putting it beyond doubt that the legislature intended retrospective operation, or that the intent should appear by unavoidable implication, and holding that the words “ when discharged ” related to that period of time after the enactment of the law. But an important fact has transpired since the argument and submission of the cause which we are agreed must settle this case, independent of the purely legal question stated.

This fact, procured from the War Department at the instance of a member of the court with the knowledge of the respective counsel, is disclosed by the second finding. It there appears that the claimant was permitted to leave the service to enter business, and cast his fortunes at the place *569of his discharge, and it was a matter of accommodation to him to permit his retirement upon satisfactory evidence of the honesty of the purpose indicated by him, submitted with his application for discharge. It also appears that, as to enlisted men, department commanders, when satisfied with the evidence, should issue the necessary orders for discharge, citing the reason for discharge in the language set forth in the first finding, making reference to the order under which the discharge was granted. Inasmuch as the claimant was discharged before the regiment sailed for the United States and only a few days before the passage of the act under which he now claims, the burden of proof is on him to show that the discharge was not for his benefit. The presumption must be indulged that he obtained his discharge from the military service under the order set forth in finding 2, and claimant, having availed himself of the privilege granted by the commanding general, lost his right to be transported to the United States at public expense (if he ever had any such right), under the act which conferred opportunities upon all within the act who chose to return at the time without being discharged, to the place of enlistment.

It is urged by the claimant that auditing officers of the Treasury disallowed his claim because the act under which it was made did not appear to be retroactive, but that the Comptroller held (8 Comp. Dec., 866) that the statute was retroactive as in other similar claims, and as to these claims of a similar character to that here they had been allowed and paid. If this be so, such claims have been improperly paid if the claimants elected to be discharged, as set forth, from the service in the Philippines.

The judgment will be entered for defendants and the petition dismissed.