The National tribune., 1902-11-06

statutes fix q date beyond which q soldier S
service cannot be said to continue, it would
seem to logically follow that such date
must be the date Of the termination of
said service. 1t is not deemed necessary,
however, to rely upon any inference which
may legitimately be drawn from the word
ing of section 4101, Revised Statutes, for
the Supreme Court of the United States
has passed upon the principle involved in
such a manner as to practically dispose Of
the question.
James Ii. North, an officer Of the Navy
of the United States from May 30, 1922
to Jan. 4, 1861, brought suit against the
United States in the Court Of Claims for
three months extra pay, as provided by
the act of July 10, 1S4S, chapter 104, sec
toin 5 g Stat, 24S), the essential part Of
which is as follows:
"'That the officers, non commissioned
officers, musicians, and privates engaged
in the military service of the United States
in the war with Mexico, and who served
out the time Of their engagement, or may
have been honorably discharged.
shall be entitled to receive three months
extra pay
North recovered judgment, and the
Government appealed. Mr.. Chief Justice
Waite, in delivering the opinion of the
court, said:
1.-The answer to the second question
is, to our mind, attended with no great
| difficulty. Those of the Regular Army or
Navy who were engaged in the military
service Of the United States in the war
with Mexico" may be said to "have served
out the term of their engagement" or to
| have been "honorably discharged" within
| the meaning of those terms as used in the
| act Of 1S4S, when the war was over, or
when they were ordered or mustered out
| of that service. Being in the Army and
| Navy, their engagement was to serve
| wherever they were ordered for duty.
| Their engagement to serve in the war with
Mexico ended when they were taken away
| from that service by proper author
ities.' GU. S. v North 112 U. S., 51O.)
| Here is q statute which required one
to be 'honorably discharged and the Su,
preme Court Of the United States held
that when the war with Mexico was over
one who was engaged in the military ser.
vice of the United States in the war with
Mexico may be said to have been honor
ably discharged when, as q matter OF
fact, he never was actually discharged
| from such service-that is, he was never
mustered out from such service; never re-
ceived any certificate of discharge from
the War Department from such service
and there is no record that he ever was
| discharged from such service.
Applying the principles laid down by
the Supreme Court in the case at bar, il
would appear that when Tyler had served
| out his term Of engagement under said
enlistment, said enlistment contract ter
minated on July 16, 1851, he can and
must be considered as having been dis
charged from such engagement. That
said engagement terminated by operation
Of law at thesclose Of the war Of the re.
belliOn is also apparent from the ruling OF
the Supreme Court in the North case
'The distinction, then. seemingly drawn
between the discharge of a soldier and the
legal termination of his services, appears
to be unwarranted and illegal in this case
I'm view of the foregoing facts and
statements of law, the Department holds
that Daniel b. Tyler, a Corporal in Co
d., 9Th Mass. Vols, was on the 18th day
| of April, 1861, a member of the State
Militia Of Massachusetts,, and while he
| with said regiment, was marching through
the streets of Baltimore on said day he
| was member of an organizati ton which
was part of the military forces of the
been called into the military service of the
United States by the order of the Presi.
dent, lawfully issued; that his contract OF
| enlistment as member Of said o:ganiZa-
ton was legally terminated; that he may
be considered as having baen discharged
from such enlistment, and that he has q
pensiOnable status as a member Of said
militia under the first subdivision Of sec.
tion 1893, X. S.
"Inasmuch as the basis of the rejection
| cf these claims has been shown to be an
Ensound legal proposition, the merits OF
the cases will not be discussed. The &C,
ton in both of these cases is reversed, and
the claims must be reOpened and readjudi
Gated upon their merits and in conformity
with the law as herein set forth.
! Actions reversed"