#### FRANCES ACKER, WIDOW, v. THE UNITED STATES.

[Congressional, 14248-458.

Decided Jan. 16, 1911.]

*On the court's Motion.*

This case is one of the class known as “ *back-pay and bounty ”*or “ *minimum-pay cases.”*The claimant seeks to recover his pay as first lieutenant in a Volunteer infantry company during the Civil War between the date of his commission and the date of his muster in.

*64I.The *act 19, April, 1910*(36 Stat, L., pp. 312, 324), provides that *“Hereafter in administering the act of Congress approved February ¡¡4, eighteen hundred mid ninety-seven, entitled ‘An act to provide for the relief of certain officers and enlisted men of the Volunteer forces,’ the decision of the War Department as to the right of any person to be held and considered to have been mustered into the service of the United States under the provisions of said act shall be conclusive."*This enactment makes the decision of the War Department in this class of cases final, and leaves this court without jurisdiction to find to the contrary.

II.Such cases when coming into the court by a reference under the Tucker Act will be reported to the House by which they were referred without a finding of facts.

III.It is well settled that a later statute which is general in its terms will not affect the special provisions of an earlier act unless they are expressly referred to.

*TV.*The Revised Statutes (sees. 1588, 1592) refer only *to*officers on the retired list in time of war, and do not extend to officers acting in time of peace.

*The Reporters’*Statement of the case:

The facts of the case sufficiently appear in the following statement and in the opinion of the court:

This is a claim for pay due John W. Acker for service as first lieutenant, Fifty-second Illinois Volunteer Infantry, between October 24, 1864, and December 17, 1864, growing out of the fact that he performed all of the duties of said grade under the appointment or commission from the proper authority; that said claim was duly presented to the War Department and the proper accounting officers of the Treasury, but denied because of the prohibition of the act of March 3, 1863, regarding the minimum strength and company organizations.

On May 22, 1908, by resolution of the United States Senate, the following bill was referred to this court for findings of fact under the act of March 3, 1887:

“ [S. 6915, Sixtieth Congress, first session.]

“A BILL For the relief of Simeon C. Aldrich and others.

“ *Be it enacted by the Senate and House of. Representatives of the United States of America in Congress*assembled, That the Secretary of the Treasury be, and he is hereby, authorized *65and directed to settle, adjust, and audit the claims of the persons named below, or of their legal representatives or heirs at law, if deceased, for difference between the pay of the grade in which service was rendered and the pay of the grade in which pay was received during the Civil War, and in every case wherein it is shown that service in the higher grade was actually performed, to pay said difference of pay, and a sufficient sum for this purpose is hereby appropriated, out of any money in the Treasury not otherwise appropriated, namely, John W. Acker.”

The claimant appeared in this court and filed her petition July 20, 1909, in which it is substantially averred:

That she is a citizen of the United States, resident in the county of Lake, in the State of Illinois, and is the widow of John W. Acker, deceased, who was an officer of Volunteers during the Civil War, and is also one of the proposed beneficiaries under Senate bill 6915, first session Sixtieth Congress.

That John W. Acker was duly appointed first lieutenant Company I, Fifty-second Illinois Infantry, and that on or about the 21th day of October, 1864, he entered upon and performed all the duties of said grade or rank under his appointment or commission, but that he was denied the pay and allowances thereof because of the prohibition contained in General Order of the War Department, No. 182, of date June 20, 1863, based on section 20 of the act of Congress approved March 3, 1863 (12 Stat. L., 734).

That an application for recognition as of said grade was duly presented to the Secretary of War, and a claim for compensation for said service was duly presented to the proper accounting officers of the Treasury, under the provisions of the act of Congress approved February 24, 1897, and was considered and rejected by them on the ground that the third proviso of said act expressly excludes from its benefits cases where the commission bears date subsequent to June 20, 1863, when the command was reduced below minimum strength by the casualties of war, and that therefore your petitioner’s case was not covered by any existing law.

*66That said claim was referred to this court May 22, 1908, by a resolution of the Senate for proceedings in conformity with said act of Congress approved March 3, 1887.

That there is no set-off or counterclaim against, nor has there ever been any assignment of said claim or any part thereof; that the amount due will be reported by the Auditor for the War Department, and any sum allowed by the court should be distributed by said auditor under the act of June 30, 1906 (34 Stats., 750).

The case was brought to a hearing on merits on December 8, 1910. Pennebaker, Carusi & Jones appeared for the claimant, and the Attorney General, by W. W. Scott, Esq., his assistant and under his direction, appeared for the defense and protection of the interests of the United States.

*Mr. O. F. Oarusi*for the claimant.

*Mr. William W. Scott*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

Atkinson, J.,

delivered the opinion of the court:

This case is one of a class known as “ back paj1- and bounty cases ” which comes to the court by a resolution of the United States Senate referring Senate bill 9501, Sixtieth Congress, second session, for investigation and determination of facts under the fourteenth section of the act of March 3,1887 (25 Stats., 505), commonly known as the “Tucker Act.” Said bill is set out in full in claimant’s petition, with the exception that only claimant’s name appears therein when in fact a large number of other like beneficiaries are also named.

The claimant was, he alleges, commissioned by the governor of the State of Illinois October 24, 1864, as first lieutenant of Company I, Fifty-second Illinois Volunteer Infantry. At the date of his said commission and for some time prior thereto he had been first sergeant of his company and was enrolled and paid as such by the War Department up to the date that he was mustered in as first lieutenant, viz, December 17 of said year, and he now petitions Congress to allow him the difference in pay of a first sergeant and that of first lieutenant from the date of his commission *67to the day be was mustered in as a commissioned officer, said difference of pay and allowances being $55.40.

These so-called “minimum-pay” cases are based upon claims made by men who were appointed or commissioned by the governors of various States during the late Civil War as Volunteer Army officers, pay being demanded by them from the date of their respective appointments or commissions, while the War Department decides that their pay should not begin until they were regularly mustered into the Volunteer Army by an officer of that department duly authorized to perform such service, after the organizations had reached the minimum enrollments required by law and the Army Regulations. The rate of pay claimed in each case is based upon the grade of the officer from the date of his appointment or commission without reference to the date of his muster into the Volunteer service. '

Evidence in the case was introduced tending to prove actual service as first lieutenant during the time for which pay is claimed, and the court is asked to make findings to that effect.

The act of February 24, 1897 (29 Stats., 598), makes provision for the pay of this class of officers, but limits it to such as can come within some of its provisions. The claimant made application for payment under that law and was refused upon the decision of the War Department that he did not come within the provisions above mentioned; hence the introduction of the bill quoted and its reference to this court.

The act of Congress of April 19, 1910 (36 Stats., 312, 324), provides as follows:

“ Hereafter in administering the act of Congress approved February twenty-fourth, eighteen hundred and ninety-seven, entitled ‘An act to provide for the relief of certain officers and enlisted men of the Volunteer forces,’ the decision of the War Department as to the right of any person to be held and considered to have been mustered into the service of the United States under the provisions of said act shall be conclusive, and no claims shall be allowed or considered under said act after the first day of January, nineteen hundred and eleven.”

*68It will thus be seen that in terms which can not be misconstrued the decision of the War Department is made final in this class of cases, and this court is without jurisdiction to find to the contrary, no matter what the character and weight of the evidence presented may be.

It follows from the foregoing that the decision of the War Department in this case and all other like cases must be regarded as final and conclusive.

It is ordered that a copy of this opinion be certified to the Congress.