United States v. Hunt (81 U.S. 550)

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

The third section of the act of March 3d, 1865, enacts:

'That from and after the first day of March, 1865, and during the continuance of the present rebellion, the commutation price of officers' subsistence shall be fifty cents per ration: Provided, That said increase shall not apply to the commutation price of the rations of any officer above the rank of brevet brigadier-general, or of any officer entitled to commutation for fuel or quarters.'

Under this enactment, Hunt, a brigadier-general of volunteers, filed a petition in the Court of Claims claiming commutation pay. The United States demurred; thus admitting, of course, that the petitioner was a brigadier-general during the recent civil war, and was not entitled to commutation for fuel and quarters. He was then entitled to the increased commutation for subsistence if his rank of brigadier was not above the rank of brevet brigadier. The question was, was it such?

The Court of Claims gave judgment in favor of the petitioner, and the United States appealed, assigning as error that a brigadier-general is above the rank of a brevet brigadier-general, and therefore not entitled to the benefit of this provision.

Mr. T. J. D. Fuller, in support of the ruling below:

The solution of the question turns upon the word 'rank,' as used in the proviso, and the equality of rank of a brigadier with a brigadier by brevet. The Court of Claims held that the rank of each is the same, and consequently that the one is not above or below the other. Its construction of the act was that the proviso should be read as though the word brevet were not there.

Now we submit that in rank there is no difference between a brevet brigadier, or, more accurately speaking, a brigadier-general by brevet and a brigadier-general without a brevet; that the one may command the other, by virtue of the priority of the date of their respective commissions when thrown together, under circumstances contemplated by the usage of the service and the Articles of War. What is rank in the army? The grades of rank in the army, as known and recognized by law at the present time, are—

1. General.

2. Lieutenant-general.

3. Major-general.

4. Brigadier-general.

5. Colonel.

6. Lieutenant-colonel.

7. Major.

8. Captain.

9. Lieutenants-first and second.

The law knows no intermediate rank, or grade of rank, between the enumerated grades or ranks. There is but one rank of brigadier-generals. There are not two ranks of brigadier-generals, the one inferior or the other superior; but one grade, one rank. There are two kinds of rank in tenure, but nevertheless equal. 'Rank' by brevet is rank in the army generally, as contradistinguished from rank in some one of the divisions of the army. Campbell's Dictionary of Military Science defines brevet to be 'a rank in the army higher than the regimental commission held by an officer. In garrison and brigade duties it confers precedence according to seniority.'

Mr. C. H. Hill, Assistant Attorney-General, contra.

The CHIEF JUSTICE delivered the opinion of the court.