#### Lieut. Joseph W. Price *v.*The United States.

*On the Proofs.*

*The claimant is commissioned as lieutenant in the 39th loica volunteers; A del, Iowa, is the place of his enlistment and muster in. After two years’ service he is discharged upon his resignation, based on surgeon’s certificate of disability, and is mustered out at' Savannah, Georgia. The quartermasters’ department furnishes transportation to New York, but refuses it to Adel. The record shows that the claimant was honorably discharged, but does not show that the disability was incurred in the line of his duty. The immemorial usage of the War Department has been not to allow transportation or mileage to officers discharged on resignation.*

An officer in the regular army honoi-ably and involuntarily discharged is entitled to transportation from the place of his discharge to the place of his residence under *Acts March*3, 1799, (1 Stat. L., p. 755,) *March*16, 1802, (2 Stat. L., p. *137,) January*11,1812, (2 Stat. L., p. 674,) *March*19, 1836, (5 Stat. L., p. 7.) A volunteer officer in the war of the rebellion has the same pay and emoluments as an officer in the regular army, under *Act July*22, 1861, (12 Stat. L., p. 270.) And under General Orders *No.*43, War Department, 1861, ratified by *Act August*6, 1861, (12 Stat. L., p. 326,) officers of volunteers are also *165entitled to such transportation. But it is doubtful -whether these statements do not refer to an *involuntary*discharge, and whether a volunteer officer who resigns before the expiration of his term of enlistment is entitled to transportation or mileage.

*Messrs. GhipmanandHosmer,*for tbe claimant:

This is a claim brought for travel pay as first lieutenant of the 39th regiment Iowa volunteer infantry, from the city of New .York to the town of Adel, Dallas county, Iowa.

The petitioner was in the United States military service as lieutenant of company 0, from the 24th day of November, 1862, to the 6th day of January, 1865. He was mustered in at Davenport, Iowa, on the day first mentioned, and honorably mustered out at Savannah, Georgia, on the last-named day; his place of residence and enrolment was Adel, Iowa, and his residence was the same when discharged. He was furnished transportation by the United States from Savannah, Georgia, to New York city, *en route*home, but he was refused transportation from New York city to Adel, his home; he has never been paid travel-pay or allowance for any part of the distance between these last two places, nor furnished transportation in kind.

In the *Act March*3,1799, sec. 25, (1 Stat. L., 755,) we find the first law ever enacted providing for the payment to officers discharged from the military service the travel allowance here sought to be recovered.

This act promises to all officers “who shall be discharged from service, except by way of punishment for an offence, * * pay and rations, or an equivalent in money, for such term or time as shall be sufficient to travel from the place where he receives his discharge to the place of his residence, computing at the rate of 20 miles to a day.”

By an examination of the following laws, General Orders of the War Department, Army Regulations, Paymaster General’s Manual, and Digest of the Second Comptroller of the Treasury, it will be seen that the allowance of travel-pay to officers discharged, except by way of punishment for crime, has been given by the government from time immemorial. *Act of March*3, 1799, § 25, (1 Stat. L., p. 755 5) *Act of March*16, 1802, § 24, (2 Stat. L., p. 137;) *Act of January*11, 1812, § 22, (2 Stat. L., p. 674;) *Act of February*2, 1813, § 15, (2 Stat. L., p. 796;) *Act*
      *166
      *of March*2,1821, § 13, (3 Stat. L., p. 616;) *Act of March*19, 1836, § 3, (5 Stat. L., p. 7;) General Orders War Department, No. 43, July 10, 1861; Army Begulations, 1861, paragraphs 1338-39; Bevised Army Begulations, 1863, paragraphs 1369-’70; Paymaster Generabs Manual, June, 1864, paragraph 617; Second Comptroller’s Digest, (edition March 10, I860,) §§ 1481, 1502, 1503, 1505, 1510; Army Begulations, (edition of 1857,) pp. 1195-6.

The Paymaster General says, in his Manual above cited: “The *laws of March*3,1799, *March*16, 1802, *January*il, 1812, and *January*29,1813, give an officer or soldier of the regular army, when honorably discharged, travel-pay and rations, (or an equivalent in money,) at the rate of 20 miles per day, from the place of discharge to his residence.”

When the volunteer army against rebellion was called out, the War Department issued General Orders No. 43, cited above, promising the pay we here claim.

By the *Act of July*22, § 5,1861, (12 Stat. L., 270,) volunteers were placed upon the same footing as regulars; and by act of Congress August 6, 1861, General Order No. 43 was legalized, viz: “Commissioned officers of volunteers received into the service of the United States for two and three years, or for the period of the war, will be entitled to receive one day’s pay and subsistence for every 20 miles’ travel from the place of enrolment to the place of muster into service of the United States, and from the place of discharge to the place of enrolment; the distance to be estimated by the most direct mail route.”

The only question in the case is this: Are army officers who resign the service entitled to travel-pay 9

The decision, and only one of which we have any knowledge, that prevents payment of this class of claims, is the following of the Second Comptroller :

The act of 1799 provides “ That whenever any officer or soldier shall be discharged from the service, except by way of punishment for an offence, he shall be allowed his pay and rations, or an equivalent in money, for such term of time as shall be sufficient to travel from the place where he receives his discharge to the place of his residence, computing at the rate of 20 miles to a day.”

The act of 1802 recites the above enactment, word, letter, and point.

*167The act of 1812 is in the same identical language, *verbatim et ptmetuatim et literatim.*

The act of 1813 is tlie same in all respects.

The act of 1836 provides “ That the officers, non-commissioned officers and privates, musicians and artificers, shall be entitled to one day’s pay, subsistence and other allowances, for every 20 miles’ travel froin their places of residence to the place of general rendezvous, and from the place of discharge back to their residence.”

The act of July 22, 1861, provides “ That the officers, non-commissioned officers and privates, organized as above set forth, shall, in all respects, be placed on the footing, as to pay and allowances, of similar corps in the regular army.”

The act of 1799 is entitled “An act for the better organizing of the troops of the United States, and for other purposes.”

The act of 1802 is entitled “An act fixing the military peace establishment of the United States.”

The act of 1812 is entitled “An act to raise an additional military force.”

The act of 1813 is entitled “An act in addition to the act entitled ‘An act to raise an additional military force,’ and for other purposes.”

The act of 1836 is entitled “An act to provide for the payment of volunteers and militia corps in the service of the United States.”

The act of 1861 is entitled “An act to authorize the employ-, ment of volunteers to aid in enforcing the laws and protecting public property.”

The intent and meaning of these several laws may be known to a great extent from the history of the several periods at which they were passed.

The law of 1799 was enacted at a time when the nation was preparing for a war with France.

The law of 1802 was passed when the nation was enjoying profound peace. Hence it contemplates and provides for a “ military peace establishment.”

The laws of 1812 and 1813 were passed preparatory to and during the continuance of the last war with Great Britain.

The law of 1836 was enacted during the Florida war, while the law of 1S61 was passed to raise an army to suppress the late rebellion of the southern States.

*168It will be noticed that among all these laws bnt two of them mention the term *“*volunteers,” namely, the acts of 1836 and 1861; all the rest relate to the regular army.

It is impossible to draw an inference, from any language here used, that officers discharged by *reason of resignation*should receive less travelling allowances than officers discharged for any other reason.

The construction necessary to justify this opinion would deprive resigned officers of *all pay*as well as the emoluments claimed. But the law of 1861 places the question beyond doubt. It distinctly places all volunteer officers “ on the footing, as to pay and allowances,” of those of the regular army. Now as the “ allowances” of the regular army are plainly defined to include travelling allowances by every statute enumerated, there seems to be an end of the controversy.

But it is further urged that this claimant forfeited his right to the travel-pay by tendering his resignation and voluntarily quitting the service. To this we answer, that the law was passed to give the officer the means of getting home after he left the service, and the necessity for such provision was not changed by voluntarily leaving the army. By regulation of the army, officers appointed must join their commands at their own expense, and this provision only equalizes the expense by furnishing means of returning. This was an inducement to join the army. Officers were liable to be taken wherever the government might select, and to travel from some points where they were discharged to them homes would cost more than six months’ salary. It cannot be regarded as a gratuity, as “ bounties” and “ three months’ pay proper” may be regarded. Again, it is not true that the officer quitted the service voluntarily and by his own act. The government always reserves the right to grant the request or refuse it, and the officer is powerless to control its action.

*Mr. T. S.*Talbot, acting for the *Assistant Attorney*General, for the defendants:

The claimant was a 1st lieutenant of 39th regiment of Iowa volunteers. His term of enlistment was for *three years or during the*ivar, having been enrolled and mustered in at Adel, Dallas county, Iowa. At his own request, in a letter of resignation, *169be was discharged at Savannah, Georgia, after two years one month and thirteen days’ service, and he now claims, with other allowances due to his rank, travelling expenses from New York city to Adel, for each 20 miles of travel, estimating the distance as being 1,300 miles. The amount specified in the petition is demanded as of right under law and usage. On an unbiased examination of the case, it will be seen that it is not meritorious, the *immemorial usage*being against such allowance of travel-pay on resignations, as a general rule. He complains through the brief of not having had transportation in kind. Had he waited for the discharge of his compatriots, he would have had this very transportation; but after imploring for a privilege not conceded them, and obtaining it, he wants reimbursements for his travel-pay, as a special emolument beyond anything they had to get them home.

The act of a quartermaster cannot raise an implied assumpsit against the government or vacate law and usage. An officer voluntarily quitting the service, as a general rule, is not entitled to travel-pay. It was incumbent on the claimant to have brought his case within the exceptions by proof of some military order.

Save in the case of wounds received, the formula of a discharge under a surgeon’s certificate of disability is not to a full extent the honorable discharge known to military usage, so as to give legal claim to extra allowances.

Peck, J.,

delivered the opinion of the court:

Joseph W. Price, of the State of Iowa, residing at Adel, in that State, asks to recover the sum of $234 as travelling allowances from the city of New York to his residence, upon his discharge from the military service.

Claimant was mustered out of service at Savannah, in the State of Georgia, and was furnished transportation by the government to the city of New York on his way homeward, but no further. His claim for transportation from New York to Adel, in Iowa, is denied him.

Claimant was mustered into service in Iowa, on the 24th of November, 1862, as 1st lieutenant in the 39th regiment of Iowa volunteer infantry. He enlisted for three years or during the war, and was discharged, at his own request, on the 6th of Jan-*170nary, 1865, ten months before Ms term of enlistment had expired.

The case was argued sometime since and submitted for judgment, but was remanded to the docket because the final discharge of claimant, and the order under which it was issued, was not otherwise in proof than by his own testimony, which was considered insufficient; the return of the War Department then in the record not showing that claimant was honorably discharged, or that the disability mentioned was incurred in the line of his duty.

By a second return from the War Department, recently placed in the record, it is shown that the claimant was honorably discharged the service, his discharge having been granted on a surgeon’s certificate of disability, but it does not appear that the disability arose by anything that occurred in the line of his duty. •

By statute it is directed that whenever an officer shall be discharged from the service, except by way of punishment for an ofience, he shall be allowed his pay and rations, or an equivalent in money, for such term of time as shall be sufficient to travel from the place where he received his discharge to the place of his residence, computing at the rate of 20 miles to a day. (1 Stat. L., p. 754; 2 Stat. L., pp. 137, 764; 5 Stat. L., p. 7. See also 3 Stat. L., p. 616.)

It is also insisted that Army Begulation, No. 43, which conforms to the provisions of the statutes before referred to, was legalized by the third section of the *Act of August*6,1861, (12 Stat. L., p. 326.)

The usage of the pay and other departments is not to allow for expenses of travelling where, as in this case, a.n officer leaves the service on tender of resignation, which is accepted. The reason assigned for the xiractice is, that the officer leaves the service upon his own request and for his .private benefit, and not because his services are no longer required. His place has to be supplied by another, who, if he leaves the service, must in turn be paid for travelling home, which would greatly increase the expenses of government. The Second Comptroller of the Treasury has made the following decision in reference to cases like the present:

> “As a general rule, an officer who voluntarily quits the service is not entitled to travel-pay home, but when his resignation *171and consequent honorable discharge are in consequence of wounds or disability incurred in the line of his duty, it is sometimes allowed as an exception, and by special decision.”

This ruling is applied alike to officers in the regular and the volunteer service.-

The expression of the laws “that whenever an officer shall be discharged from the service,” has reference to an involuntary discharge, and not to a case where an officer seeks to be relieved from his assumed obligations to the government, and anticipates his final discharge by offering his resignation. Claimant did not serve for the period of his enlistment, and it maybe that he desired to be released from his obligation for reasons advantageous to himself.

Where his disability arises from injuries or sickness incurred in the line of his duty, the compensation sought for is usually allowed. This practice is reasonable, and has been uniformly adhered to. The Paymaster General in his report to his superior officer upon this case says, “travelling allowance home was refused this officer, and, as a general practice, has been refused-in all cases of discharge on tender of resignation, by reason of prohibitory'rules of immemorial usage and practice in this office and with the treasury accounting officers.. We do not feel authorized to change this immemorial usage; it seems founded in law and justice.”

Had this claimant served for the full period for which he enlisted, his claim would rest upon reason and obligation, but as it is, we think it would be unreasonable to compel the government to reverse its immemorial usage in such cases and pay this claimant for travel which was performed not so much for its benefit as his own.

It is insisted, on the part of the claimant, that the rule of the pay department of the army and the accounting officers of the United States, which denies travelling allowances in cases like the *present, is*not only not sustained by law, but is against the express direction of several statutes.

It appears that a large number of officers were discharged from service under circumstances like those shown in this case, who have been refused travelling allowances; and it being suggested to the court that this is the pioneer of a large class of cases designed to test in the court of last resort the propriety of refusing such allowances, we shall render a judgment in his *172favor, expecting the United States to take an appeal in tbe case, which the claimant could not if the judgment were ag’ainst him.

It is, therefore, ordered that a judgment be entered in favor of the claimant for travelling allowances from the place of his discharge from the service of the United States, as an officer, to the place of his enlistment, making the sum of $234.