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United States Supreme Court

84 U.S. 405

United States  v.  Henry

APPEAL from the Court of Claims; the case being thus:

A joint resolution of Congress, approved July 26th, 1866, [*] resolves:

'That in every case in which a commissioned officer actually entered on duty as such commissioned officer, but, by reason of being killed in battle, capture by the enemy, or other cause beyond his control, and without fault or neglect of his own, was not mustered within a period of not less than thirty days, the pay department shall allow to such officer full pay and emoluments of his rank from the date on which such officer actually entered on such duty as aforesaid, deducting from the amount paid in accordance with this resolution all pay actually received by such officer for such period.'

An act of Congress of prior date, March 3d, 1863, had enacted in its twentieth section,-- 'That wherever a regiment is reduced below the minimum number required by law, no officers shall be appointed in such regiment beyond those necessary for the command of such reduced number.'

In this state of statutory law, Anthony Henry, who had been duly commissioned as second lieutenant in the second regiment of Ohio volunteer infantry by the governor of that State-which commission he accepted on the 15th day of August, 1863-and who actually served and performed the duties of that office from that day until October 10th, 1864 (when he was mustered out of service with his regiment), and was during all that time recognized as such officer by his superior officers, and commanded the company in several battles, but had been paid only the amount due to the rank and service of first sergeant of infantry-filed a claim in the court below against the United States for $1118, the pay and allowance due to a second lieutenant.

The Court of Claims found as facts,

'That upon receipt of his commission from the governor of Ohio, the claimant presented himself for muster, as second lieutenant, to the proper mustering officer of his division, but was refused such muster, the mustering officer alleging that Company D, to which the claimant was assigned, was reduced below the minimum number, and that, therefore, he was not entitled to be mustered; that the claimant repeatedly offered himself for muster to the proper officer during the time aforesaid, but without success; and that he was always ready and anxious to be so mustered, and that his failure to be so mustered arose from a cause beyond his control, and without fault or neglect of his own.'

The Court of Claims found in favor of the claimant, and decreed to him a second lieutenant's pay. The United States appealed.

Mr. C. H. Hill, for the United States:

As the company to which the claimant belonged was reduced below the minimum number, the act of March 3d, 1863, passed prior to the joint resolution, forbade his being mustered. And it is not to be supposed that the joint resolution was meant to be applied to a case where the party could not be mustered in without a violation of law.

In addition to this, applying the ordinary rule of interpretation, that general words are to be construed as ejusdem generis, it would seem to be clear that the other causes referred to in the resolution are causes similar in nature to those particularly mentioned, namely, by reason of being killed in battle, or capture by the enemy.

Messrs. N. P. Chipman and A. A. Hosmer, contra:

The reason why Henry was refused pay for his services as lieutenant, was that he had never been mustered into the service as a lieutenant. But he offered himself repeatedly for such muster, and produced his commission. He came, therefore, within the provisions of the joint resolution, since he entered on the duties of the office and performed the same, and his failure to be mustered in was 'without fault or neglect of his own,' and was from a cause 'beyond his control.'

Mr. Justice MILLER delivered the opinion of the court.


^*  14 Stat. at Large, 368.

12 Id. 734.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).