United States v. Gilmore

• Decision Date: 01 December 1869
• Citation: 19 L.Ed. 396,8 Wall. 330,75 U.S. 330
• Parties: UNITED STATES v. GILMORE
• Court: U.S. Supreme Court

75 U.S. 330

19 L.Ed. 396

8 Wall. 330

UNITED STATES v. GILMORE.

December Term, 1869

THIS was an appeal from the Court of Claims, in which court a suit was instituted by Gilmore, an ex-colonel of the army, for a sum alleged to be due him as allowance for servants' pay, beyond the sum actually allowed him for that purpose by the Comptroller of the Treasury, in settlement of his accounts; Gilmore claiming the same sum ($16) per month for such pay, as was allowed by act of Congress of June 20th, 1864, to private soldiers, and the Comptroller of the Treasury considering that under acts of Congress, regulating the matter, he was not entitled to so large a sum. Judgment was given in favor of Gilmore by the Court of Claims, and the United States appealed.

The sum in controversy, in the particular case, was insignificant, but the principle involved extended to numerous claims and large amounts.

Mr. Chipman, for the appellant; Mr. Dickey, Assistant Attorney-General, contra.

The CHIEF JUSTICE delivered the opinion of the court.

It was for many years the practice in the army to detail enlisted men as personal servants of officers, and the practice had the sanction of law.

In 1812, with a view undoubtedly to the discouragement of this practice, it was provided by the act of July 6th,¹ that 'officers who shall not take waiters from the line of the army shall receive the pay, clothing, and subsistence allowed to a private soldier, for as many waiters as they may actually keep, not exceeding the number allowed by existing regulations.'

In 1816, the practice was absolutely prohibited except to company officers, and it was again provided, by the act of April 24th,² almost in the terms of the act of 1812, that 'all officers be allowed for each private servant actually kept in service, not exceeding the number authorized by existing regulations, the pay, rations, and clothing of a private soldier, or money in lieu thereof, on a certificate setting forth the name and description of the servant in the pay account.'

At the time of the passage of the last act, the pay of a private was five dollars a month, with rations and clothing of certain money value in addition. The effect of the act was precisely the same as if the money value of the whole had been ascertained, and the amount had been inserted as the allowance or emolument to be paid to the officer in addition to his own regular pay.

There is nothing in the act which expresses any intention on the part of Congress that, whenever the pay of the private should be thereafter increased, the emolument of the officer should be proportionably augmented, without further legislation. But this construction was given to the act by the accounting officers, and the emolument of officers were thus indirectly increased from time to time until 1861. Whenever the pay, clothing, and rations of private soldiers were advanced in amount or value, the emoluments of officers were increased proportionably, not by legislation to that effect, but by departmental construction.

In 1854, by the act of August 4th,³ the pay of privates was increased to eleven dollars a month, and the allowance of officers for servants was also increased in like manner.

At length, when, in 1861, by the act of August 3d,⁴ the pay of privates was augmented to thirteen dollars a month, and the army ration was increased, and the emoluments of the officers were also augmented by the construction referred to, the subject attracted the attention of Congress, and by the act of July 17th, 1862,⁵ it was provided that 'the first section of the act, approved August 6th, 1861, entitled 'An act to increase the pay of privates in the regular army and in the volunteers in the service of the...