Sarah Lean v. United States

• Decision Date: 23 December 1912
• Docket Number: No. 33,33
• Citation: 33 S.Ct. 122,226 U.S. 374,57 L.Ed. 260
• Parties: SARAH K. McLEAN, Widow of Nathaniel H. McLean, Appt., v. UNITED STATES
• Court: U.S. Supreme Court

226 U.S. 374

33 S.Ct. 122

57 L.Ed. 260

SARAH K. McLEAN, Widow of Nathaniel H. McLean, Appt.,

v UNITED STATES.

No. 33.

Argued November 6, 1912.

Decided December 23, 1912.

Mr. Archibald King for appellant.

Mr. William W. Scott, Assistant Attorney, and Assistant Attorney General John Q. Thompson, for appellee.

Mr. Justice McKenna delivered the opinion of the court:

The question in the case is the extent of relief to which appellant is entitled under the following act of Congress, passed February 24, 1905:

'That the proper accounting officers be, and they are hereby, directed to settle and adjust to Sarah K. McLean, widow of the late Lieutenant Colonel Nathaniel H. McLean, all back pay and emoluments that would have been due and payable to the said Nathaniel H. McLean as a major from July twenty-third, eighteen hundred and sixtyfour, to the date of his reinstatement, March third, eighteen hundred and seventy-five, and that the amount found due by said adjustment is hereby appropriated, to be paid out of any money in the Treasury not otherwise appropriated.' 33 Stat. at L. 806, chap. 777.

McLean entered the United States Military Academy July 1, 1844, graduated therefrom, and was appointed brevet second lieutenant in the Army July 1, 1848, and served until the year 1864, when, having attained the rank of major and assistant adjutant general, he resigned, his resignation being accepted July 23, 1864. By act of March 3, 1875 (18 Stat. at L. chap. 187, p. 515), Congress authorized the President to appoint Major McLean to fill the first vacancy which might occur in the lowest grade of the adjutant general's department, 'or, if he shall deem it best, to reinstate and retire him with the rank to which he would have attained in service at the date of the passage of this act.' Under this authority Major McLean was reinstated and placed on the retired list as lieutenant colonel and assistant adjutant general, to rank from March 3, 1875. He continued in that rank until his death, which occurred June 28, 1884. From the date of the acceptance of his resignation, July 23, 1864, to the date of his reinstatement, March 3, 1875, he received no pay. This interval is provided for by the act of February 24, 1905, supra.

Under that act appellant presented a claim to the Auditor of the War Department, who allowed her pay and personal subsistence which would have been due her husband from the date of the acceptance of his resigna- tion, July 23, 1864, to the date of his reinstatement, March 3, 1875, but disallowed a claim made by her for forage and servants' pay. The disallowance was confirmed by the Comptroller of the Treasury. This action was then brought in the court of claims. The court sustained the accounting officers as to forage and servants' pay, saying: 'As an officer of his grade, plaintiff's intestate was entitled to two servants and to forage for two horses had he remained in the military service. But the officer resigned, and such voluntary retirement from the service operated to deprive the officer, by his own act, of the opportunity to draw the allowances incident to the keep of two servants and two horses.' As to those two items the petition was dismissed. The court, however, decided that the claim for a ration is analogous to longevity pay and is on a different basis. The court said: 'The officer, by the act of reinstatement, became entitled to compensation for and during the whole period of service, with the consequent ration increase incident to the services supposed to have been rendered for the time set forth in the petition. It is all, strictly speaking, 'pay proper' . . . This entitles the plaintiff to $682.75 in addition to the amount allowed by the accounting officers.' Judgment was ordered and entered for that sum. 45 Ct. Cl. 95.

The jurisdiction of the court of claims to entertain the action was attacked in that court and is attacked here, the contention being that the act for the relief of appellant 'constituted the accounting officers, and not the courts, the tribunal to settle the accounts.' The court ruled against the contention, and rightly. It is not necessary to repeat its reasoning. The duties of the accounting officers were, as the court said, administrative, not judicial, and as the rights of appellant arose under an act of Congress, the court had jurisdiction to determine them. Medbury v. United States, 173 U. S. 492, 43 L. ed. 779, 19 Sup. Ct. Rep. 503.

Upon the merits certain acts of Congress besides that for the relief of appellant are pertinent to be considered.

The act of July 17, 1862 (12 Stat. at L. 594, chap. 200), provides that majors shall be entitled to draw forage in kind for two horses, and that in case forage in kind cannot be furnished by the proper department, officers may commute the same according to existing regulations. The act of April 24, 1816, § 12 (3 Stat. at L. 299, chap. 69), fixes the money value of forage at $8 per month for each horse when the same shall be commuted. But it is provided 'that neither forage nor money shall be drawn by officers but for horses actually kept by them in the service.' The act of July 15, 1870 (16 Stat. at L. 320, chap. 294), provides a new pay system for officers of the Army, abolishing commuted forage and all such emoluments by including them in pay proper.

Under the acts of March 30, 1814, §§ 9 and 10 (3 Stat. at L. 114, chap. 37), April 24, 1816, supra and March 3, 1865 (13 Stat. at L. 487, chap. 79), and the Army Regulations in force from July 24, 1864, to July 14, 1870, there would have been due and payable to McLean, as an emolument in the grade of major, servants' pay and allowance for as many servants, not exceeding two, as were actually kept by him at his expense, at the rate of pay, ration, and clothing allowance of a private soldier in the Army for each servant so kept. By other acts of Congress commissioned officers other than general officers were entitled to receive one additional ration per diem for every five years of service, which had a commuted value at various sums until July 28, 1867, when it became 30 cents.

The court of claims found that from the date of the acceptance of McLean's resignation until September 23, 1864, he had one servant in his employment on the trip from Portland, Oregon, the place of his resignation, to his home in Cincinnati, Ohio,—time, two months. From the latter date to July 14, 1870, inclusive, he had servants in his private employ, but how many is not satisfactorily established from the evidence. The servants were not enlisted men of, or connected with, the Army. From the dates before mentioned he owned two horses, one used occasionally for a saddle horse, but they were generally used for his private carriage.

The question, then, is whether, under the facts as found and the acts of Congress above stated in regard to officers' pay and allowance and the act for the relief of appellant, she is entitled to the commuted...