staff, it is claimed that the aids to major generals, being by law required to be of the grade of subalterns of the line, come within its purview, and are entitled to all of its benefits.

It is contended by the government that this last ration is given to the subalterns in addition to their rations as subalterns; that the act of January 11, 1812, fixes the rations of aids to major generals at four, and that it is not the intention of this act of 1816 to alter the allowances to aids in any way.

If this reasoning be correct, it makes the subsequent legislation on the subject of rations simply ridiculous. In 1827 an act was passed (see act of March 2, 1827, 4 Stat., 227) entitled "An act giving further compensation to captains and subalterns of the army in certain cases," the first section of which allowed to each subaltern of the army "one additional ration," and the second section of which provided "that no subaltern officer who should be in the performance of any staff duty for which he received any extra compensation should be entitled to the additional ration therein provided for." If the act of 1812 fixed the compensation of aids (staff officers) in the contemplation of the legislature, why add this proviso? If it was intended that "aids-decamp" to major generals should neither be allowed the ration provided by the act just cited, (March 2, 1827,) nor that allowed by the act of 1816, why incorporate into one a proviso which expresses this intention, and leave the other without any such proviso?

Again, the government seems at last to desert its position, that the act of 1812 fixes the rations of the aid at four, and resorts to an ingenious arrangement of the subaltern's rations, which reaches exactly the same result. But the acts of Congress are direct and explicit, and the allowances of rations are made unprovisionally until the act of 1827.

It is evident, from all the legislation on the subject, that it was, and has been, the intention of Congress from the first to give a higher rate of compensation and greater allowances to officers serving in the capacity of aids to major generals than to those serving in the line. When the act of January 11, 1812, was passed subalterns received but two rations. The 6th section of this act gave to aids of major generals four. When the act of 1815 fixed the peace establishment this allowance was continued to aids, and it was enacted that they should be selected from subalterns, and that when the subaltern became an aid he received additional or increased allowances. This state of things no longer exists, if the position taken by the government at this time be correct. By the acts of 1816 and 1827 the rations of the subaltern have been raised to four, while by the reasoning now adopted the rations of aids to major generals remain as they were in 1812, and are therefore just the same in amount, to wit, four. So that, in fact, the spirit of the act of 1812 has been defeated by subsequent legislation, and the subaltern who formerly had his allowance of rations increased by being promoted to fill the rank of aid to a major general has them continued to him just as they were before his promotion, and this, too, notwithstanding the act of 1821 (3 Stat., 615) by its 5th section imposes additional duties upon him.

The true spirit of the legislation seems to be this: The act of 1812

gave the aid four rations, he having while subaltern only two; the act of 1816 added one to the rations of each, making those of the subaltern, when aid, five; when in the line three; the act of 1827 increased the rations, but by its proviso declared that the subaltern, when upon the staff, should not receive this increase, thereby leaving his rations, when aid, where the other laws had placed them.

After the argument of this case, the court desiring to be advised as to the practice of the Department of War, under these different laws, requested the Solicitor to file with the papers of the case some official evidence as to what that practice was. The letter of the Paymaster General of June 16 is filed by the Solicitor in conformity with that request.

This letter, in the first place, corrects an error in the pay table, as contained in the Army Register for 1857; then states that the mistaken entry in the Register was probably designed to those that aids-de-camp, to major generals did not, like those of brigadiers, come within the meaning of the proviso of the act of 1827; and lastly, that the allowance to aids of major generals is fixed by the act of 30th May, 1796, and 11th January, 1812; and under the opinion of the Comptroller, already filed, the allowance has not been affected by subsequent legislation.

The act of 1827, sec. 2, or rather the proviso thereto, could not possibly be more general in its terms; no subaltern officer in the performance of staff duty, for which he receives an extra compensation, can be allowed the ration therein provided. Aids to major generals have never claimed it. It is not easy to discover how the department finds authority to make a distinction under this act between the aids of major and brigadier generals. They are both "staff duties," for which "extra compensation is received," and are unquestionably both within the meaning of the proviso.

But it is not with the interpretation of the law by the government that we have to do, but with the practice under it. And neither the letter of the Paymaster General, nor the fact, bears the Solicitor out in his statement made in the brief, as to the " contemporaneous construction, and the construction ever since" the passage of the act of 1812 of that law.* The letter of the Paymaster General refers for this practice to the opinion of the Comptroller, made at a comparatively recent date, in the case of Kearney, and nothing is said as to whether this decision has not been protested against by the officers affected by it. The fact, as far as it can be ascertained, being, that such protests have been made. It will be borne in mind, too, that the army has but one major general since the act of 1821, consequently, the number of these aids must be very small, and it could hardly be fair to interpret their acquiescence in a department decision as an abandonment, on their part, of any claim they might have against that decision.

The contemporaneous construction of the act of January 11, 1812, was that the four rations therein granted to aids to major generals, were to be in addition to their rations in the line, and general officers

*

My remark applies not to the act of 1812, but to the act of 1816, under which the claim is made. (See Comptroller's letter of December 30, 1850.)-JOHN D. MCPHERSON, Deputy Solicitor

were to be paid. This was done up to a late date in 1815, or early in 1816, as will be seen by reference to voucher No. 2, 128, in the account of Paymaster Robert Brent, December, 1815, Second Auditor's office. I am informed at the Paymaster General's office, that in this case, and the case of Lieutenant Richard Henry Lee, the question was first raised, and after argument it was settled that these rations were not to be considered additional.

This was before the act of 1816-under which the claimant makes his claim. He appeals to this Court from the decision and regulation of the department made thereunder. And to this, the only court of appeal open to him, he brings this decision for revision, places his case upon the acts of Congress, and asks a decision. It will be hard if he is to be concluded in the court of appeal by any decision of the court below. W. B. WEBB, Petitioner's Attorney.

IN THE COURT OF CLAIMS. No. 244.

ROBERT S. GARNETT vs. THE UNITED STATES.

Brief of United States Solicitor.

The act of March 16, 1802, sec. 5, (2 Stat., 132,) gave a lieutenant two rations per day.

The act of January 11, 1812, sec. 6, (2 Stat., 671,) gave the aid-decamp of a major general four rations per day.

It has never been claimed by any one, nor is it claimed now by the petitioner, that an aid, being a subaltern, was entitled to both rates of allowance, two rations as subaltern, and four as aid, making six in all. On the contrary, the construction has always been that the officer could take only in one capacity as aid or as subaltern.

The act of April 24, 1816, sec. 12, (3 Stat., 297,) allowed one additional ration" "to all subaltern officers of the army."

It is claimed in this petition that a subaltern officer of the army, being a major general's aid, and, as such, drawing four rations under the act of 1812, is entitled under the act of 1816 to draw one ration in addition to the four, making five in all.

The contemporaneous construction was, and the construction ever since has been, that the aid could receive only his four rations under the act of 1812; that the additional ration given to the subaltern was in addition to those which had already been given to him as subaltern, not in addition to those which had been given to him as aid.

If then an aid, being a subaltern officer, and drawing four rations as aid, cannot claim the two rations given to every subaltern by the act of 1812, on what ground does he claim the one additional ration

given to every subaltern by the act of 1816? The argument rests upon the fact, that "when the act of 1816 was passed all aids were subalterns." The answer to this, however, is the same that would be given if the aid claimed the two original rations under the act of 1812, viz: that the entire rations of the aid shall not exceed four, this being implied in the act giving him four rations; and that the act giving the additional ration to all subalterns is to be construed, like the act giving two rations to all subalterns, as being subject to the condition that the subaltern may waive his right to them, and does waive his right to them, by taking a staff appointment, which entitles him to a specific and higher rate of allowance. Or the act of 1812 may be construed, as it seems to be understood by the pay department, as giving to the aid such number of rations, in addition to those due to his line rank, as will make the whole number up to four.

It is alleged in the petition, that when the act of January 11, 1812, was passed, all aids were by law subalterns. This is an error. By the act of March 3, 1799, sec. (1 Stat., 749,) a major general's aid might be a captain, and when the rank of major general was abolished, the aid of a brigadier, by the act of March 16, 1802, sec. 3, might be a captain. When the rank of major general was restored by the act of January 11, 1812, above cited, he was not restricted to any rank in the selection of his aid. The restriction to subalterns was made by the act of March 3, 1815, sec. 5, (3 Stat., 224,) and was removed by the acts of June 18, 1846, sec. 8, (9 Stat., p. 18,) before the petitioner was appointed aid. So far then as the argument for petitioner may rest upon the proposition that "all aids were subalterns," the answer is, that this was an accident-that the proposition is not universally true of aids, and that therefore conclusions based upon it cannot be universally true.

The act of 1816 increased the allowance of the subaltern by one ration. An act of March 2, 1827, (4 Stat., 227,) gave to every subaltern not in the receipt of extra compensation for staff duty one additional ration. Thus the subaltern was entitled certainly to three rations, and conditionally to four. A subaltern acting as commissary, and receiving therefor $20 per month extra compensation, could draw but three rations; acting as aid to a major general, and receiving therefor $24 per month, he could have drawn but three rations, had not the act itself provided that he should have four.

If Lieutenant Garnett was drawing his four rations when appointed aid, the effect of that staff appointment, carrying with it $24 per month extra compensation, was to take away the ration given by the act of 1827, leaving him three under the acts of 1802 and 1816, but entitling him at the same time to four rations, it made good the one ration which it rendered him incapable of receiving under the act of 1827. Thus it may be said that Lieutenant Garnett, being an aid, was entitled to two rations under the act of 1802, one additional ration under the act of 1815, and one more to complete his allowance as aid; or that he relinquished all other allowance than that of aid, and drew the four rations in that capacity.

JNO. D. MCPHERSON,
Deputy Solicitor.

8

IN THE COURT OF CLAIMS.

ROBERT S. GARNETT vs. THE UNITED STATES.

Scarburgh, J., delivered the opinion of the Court.

The petitioner states the following case: He is a major in the ar of the United States. For the period intervening between the 29th June, A. D. 1846, and the 31st of January, A. D. 1849, he filli under a regular appointment the place, and performed the duties aid-de-camp to Major General Zachary Taylor.

By the sixth section of the act of Congress, approved January A. D. 1812, entitled "An act to raise an additional military force it is enacted, that the aids-de-camp of major generals "shall each entitled to * * * four rations; and by the twelfth section of a act of Congress, approved on the 24th day of April, A. D. 181 entitled, "An act for organizing the general staff, and making furth provisions for the army of the United States," it is enacted "Th one additional ration be allowed to all subaltern officers of the army, At the time of the passage of the act of 1812, subalterns of th army were allowed but two rations, and at that time, and at the tim the act of 1816 was passed, aids-de-camp were required to be selecte from that grade of officers, and, consequently, aids-de-camp are ent tled to receive the rations granted to them by the act of 1812, an the additional ration granted "to all subaltern officers of the army, by the act of 1816.

By an act approved the 2d of March, A. D. 1827, "each captai and subaltern in the army shall be allowed one additional ration,' with this proviso, "that ro subaltern officer who shall be in the per formance of any staff duty, for which he receives an extra compensa tion, shall be entitled to the additional ration herein provided for;" in consequence of which proviso, aids-de-camp do not claim the addi tional ration allowed by this act. tioned have no such provisoes, and are accompanied by no such restric But the former acts above men tions or distinctions.

The petitioner, therefore, claims to be entitled to the additional ra tion granted by the act of 1816 to "subaltern officers of the army,' for his services as aid-de-camp to General Taylor, as above mentioned during the time he so served, and which has hitherto been refuse to him.

The sixth section of the act of January 11, A. D. 1812, provides that the aids-de-camp of major generals "shall each be entitled t twenty-four dollars monthly, in addition to their pay in the line, an * * * four rations."-(2 Stat. at Large, pp. 671, 672, ch. 14.) Th is a general law, prescribing the pay and rations of aids-de-camp major generals. But it is not complete in itself. In ascertaining th monthly pay of such an aid-de-camp, it is necessary to refer to tl act by which his pay in the line is allowed. To that extent su is a part of the sixth section of the act of 1812. ence is necessary: those two acts together constituted the entire la But no further n regard to his pay and rations. He, therefore, had no other pa