#### GENERAL HUNT'S CASE. Henry J. Hunt, Appellee, *v.*The United States, Appellants.

(6 Court of Claims R., *p. 8;*14 Wallace R., p. 550.)

*On the*defendants’ *Appeal.*

*Congress enact that after the 1st day of March,*1865, *and daring the continuance of thepresent rebellion the commutation price of officers’ rations shall be fifty cents per ration: provided, that the said increase shall not apply to the commutation price of the rations of any officer “*above the rank of brevet brigadier-general.” *An officer of the rank of brigadier-general of volunteers is refused the increase given by the act. JETe brings his action for the increase. The Court of Claims decides that there is no distinct ranlc of “*brevet brigadier-general," *and that the word*“brevet” *is intended to apply only to those officers by brevet who have been assigned to duty by their brevet ranlc and have received the pay and emoluments thereof, and henee that a brigadier-general is not above the ranlc of “*brevet brigadier-general” *within the true intent of the statute, and is entitled to receive the increased rate of commutation by it allowed.*Act 3d March, 1865, (13 *Siaí. L.,*p. 495, see. 3.) *Judgment for the claimant. The defendants appeal.*

I. The rank of brigadier-general in *the army*is above the rank of brigadier-general by brevet.

II. An act -which increases the commutation price of officers’ rations, with a proviso that the increase shall not apply to *“any officer above the ranlc of brevet*brigadier-general,” must he held to exclude from its benefits an officer of the rank of hrigadier-general. *Act 3d March,*1865, (13 Stat. L., i>. 495, sec. 3.)

*Mr. Assistant Attorney-General Sill*for tbe United States, appellants:

The petitioner, a brigadier-general of volunteers, claims commutation pay under the third section of the *Act March*3,1865, (13 Stat. L., 497,) -which is as follows:

“That from and after the first day of March, eighteen hundred and sixty-five, and daring the continuance of the present rebellion, the commutation price of officers’subsistence shall be fifty cents per ration: *Provided,*That said increase shall not apply to the commutation price of the rations of any officer above the rank of brevet brigadier-general, or of any officer entitled to commutation for fuel or quarters.”

*10The only point in this case is a very narrow one, and it would seem to be a very simple one: Is a brigadier-general above the rank of a brevet brigadier-general'? In some respects he may not be, but when the dignity of the two positions is considered, and when it is every-day practice to promote persons from a brevet rank to a full rank of the same grade, the answer to be given to the question hardly seems to admit of doubt ; and that Congress considered that there is such a difference in rank between the two officers is apparent from the fact of its mentioning the rank of *brevet*brigadier-general, when, if it had intended to include that of brigadier-general, it would have used the words “brigadier-general” only.

*Mr. T. J. D. Fuller for*the claimant, appellee:

The general enacting clause of the act increases the commutation price of the ration for all officers of the regular or volunteer army. The *proviso*restricts the increased price of the ration from officers *above*the *rank*of brevet brigadier-general, and this limitation raises the question, whether a brigadier-general, in rank, is above that of a brevet brigadieq-general, or whether they are of the same *rank*or grade. If of equal rank, then the one cannot be above the other.

The Pay Department construed the proviso to mean, that a brevet brigadier-general, in rank, is *below*a brigadier-general. If, in truth, a brevet brigadier-general, in rank, is below a brigadier-general, he would, upon muster out of service, be entitled to the three months’ extra pay, under the fourth section of the act. But strange as it may appear, the Pay Department, in their construction of the fourth section, held that a brevet brigadier-general was not below a brigadier, and therefore not entitled to the three months’ extra pay.

The claimant’s construction of the act is, that the proviso to the 3d section should be read as though the word “ brevet” was omitted, or not there; that in *rank*there is no difference between a brevet brigadier, or, more accurately speaking, a brigadier-general *by brevet*and a brigadier-general without a brevet; that the one may command the other, by virtue of the priority of the date of their respective commissions when thrown together, under circumstances contemplated by the usage of the service and the Articles of War.

*11The claimant says *in rank*he is not aboye a brevet brigadier, because a brevet brigadier of older cotnmissiou may command him, and he is bound to obey his orders, which, in military parlance, can never happen if the *rank*is above him, or he is of lower *rank.*Campbell’s Dictionary of Military Science defines “brevet” to be “ a rant in the army higher than the regimental commission held by an officer. In garrison and brigade duties it confers precedence according to seniority.” Our army being organized on the basis of the British army, the power to confer the *brevet*rank of a higher grade upon meritorious officers was exercised from the earliest day. It was, in the first instance, conferred by the Executive alone.

Congress, by *Act July*6,1812, section 4, enacted, “ That the President is hereby authorized to confer *brevet rank*on such officers of the Army as shall distinguish themselves by gallant actions, or meritorious conduct, or who shall have served ten years in anyone grade: *Provided,*That nothifig herein contained shall be so construed as to entitle officers *lso breveted’*to any additional pay and emoluments, except when commanding separate posts, districts, or detachments, when they shall be entitled to and receive the same pay and emoluments which officers of ‘ the saaie grade’ are now, or.hereafter may be, entitled by law to receive.” This language clearly indicates the intention of Congress that officers holding rank *by brevet*were of the/ same grade of rank, and of equal *grade of*rank, grade for grade, as officers of *lineal*or regimental rank, and the *precedence*of each grade was fixed by the sixty-first *article*of war by date of commission: a rule that never has been departed from to this day. Congress, by a later act, approved April 16,1818, further enacted, (sec. 2,) “That no brevet commission shall hereafter be conferred, but by and with the advice and consent of the Senate.” This statute would seem to remove all plausible pretext for denying that *rank*conferred *by brevet*is not on terms of equality with *rank*conferred in any other way. The statute must be construed by the well-known rules of judicial interpretation, one of which is, “ *That a proviso in a statute is to be strictly*construed, *and takes no case out of the enacting clause which is not fairly ivithin the terms of the proviso.” United States*v. *Dickson,*(15 Peters B., p. 141.) Another rule is, “That doubtful words, if not of a scientific or technical character, are to be interpreted according to their popular meaning; but *12words of a scientific or technical character are to be construed in accordance with their known meaning in the science or art to which they appertain.” (6 McLean’s Eep., p. 152.) A further rule, and one especially applicable to the case under consideration, is, “Where the words of a statute, fixing the compensation of a public officer, are *loose*and *obscure,*and admit of two interpretations, they should be construed in favor of the officer.” *United States*v. *Morse,*(3 Story’s It., p. 87.)

Mr. Chief Justice Chase

delivered the opinion of the court:

The only question in this case arises under the *Act March*3, 1865. That act increased the commutation price of officers’ subsistence during the continuance of the rebellion to fifty cents per ration, with the proviso that the increase should not apply to any officer above the rank of brevet brigadier-general, nor to any officer entitled to commutation for fuel and quarters.

The demurrer to the petiiion admits that the petitioner was a brigadier-general during the recent civil war, and was not entitled to commutation for fuel and quarters. He was then entitled to the increased commutation for subsistence if his rank of brigadier was not above the rank of brevet brigadier.'

The question is, was it such *1*

Our duty in construing acts of Congress is to give the meaning to words which Congress obviously intended. It may be that in the strict sense of the military term the rank of brigadier and brevet brigadier is the same, but it is well kuown that practically they are by no means identical, and that the position of the former is, in many respects, better than that of the latter.

Brevet rank is conferred, in theory at least, for special and meritorious services by commission from the President, under authority of an act of Congress. It does not entitle the holder to corresponding pay or command, except under special circumstances defined by law. "When an officer holding rank by brevet receives a regular commission of the same grade, he is said to be promoted and to become a full officer of that rank.

These circumstances make it evident that there is a difference of military position between an officer by brevet and an officer by regular commission, and that the one is less eligible than the other.

*13And Congress seems to have referred to this distinction of position rather than to technical rank in the provision under consideration. If they did not, why employ the word brevet at all ? Why use the term brevet brigadier when it was so easy to say brigadier, and thus avoid all ambiguity ?

We think that Congress had in view the distinction between brevet rank and regular rank, to which we have referred, and regarded the latter as above the former.

The practice of the Department of War, as we understand, and of the accounting officers, has been in accordance with this view, and seems to us correct.

The judgment of the Court of Claims must, therefore, be reversed.