United States v. Kingsley (138 U.S. 87)

This was an appeal by the United States from a judgment of the court of claims, (24 Ct. Cl. 219,) awarding to the petitioner, Joseph F. Kingsley, $73.30 for 'retained pay,' and for transportation and subsistence from the place of his discharge to that of his enlistment. The finding of the court of claims was as follows:

'FINDINGS OF FACT.

'This case having been heard before the court of claims, the court, upon the evidence, finds the facts to be as follows: '(1) August 12, 1882, the claimant enlisted as a private in the marine corps of the United States at Brooklyn, N. Y. October 3, 1884, he was promoted to a corporal. September 4, 1885, he was reduced to a private. June 4, 1887, he was discharged from the marine corps at the Marine barracks, navy-yard, Washington, D. C.

'(2) The cause of discharge appears in the following correspondence and order:

"Marine Barracks, Navy-Yard, Washington, D. C., May 28, 1887 Sir: I have to respectfully request that private Joseph F. Kingsley, of this command, may be discharged from the service, as he is utterly worthless, and his character is bad; he is also a very disturbing element in the garrison. I inclose herewith his staff returns, also a list of his offenses. Very respectfully, your obedient servant, P. C. POPE, Captain U.S. Marine Corps, Commanding Marines. C. G. McCauley, Colonel Commandant.

"LIST OF OFFENSES:

"October 11, 1886. Twenty-four hours' over leave. October 21, 1886. Creating disturbance in quarters. December 3, 1886. Drunk in garrison. December 24, 1886. Insubordination and disrespect to sergeant of the guard, tried by summary courtmartial, sentenced thirty days P. I., solitary confinement. February 23, 1887. Over leave. April 5, 1887. Improper conduct at target practice. May 20, 1887. Absent without leave. May 26, 1887. Insubordination and disrespect to the officer of the day.'

'These reports were forwarded through the official channels to the secretary of the navy, and thereafter the following order was issued: "Head-Quarters U.S. Marine Corps, Washington, D. C., May 31, 1887-Sir: Be pleased to discharge 'by order of the secretary of the navy, as unfit for service, character bad,' * * * private Joseph F. Kingsley, at the Marine barracks, navy-yard, Washington, D. C., (upon the report of his commanding officer, dated the 28th instant.) Very respectfully, C. G. MCCAULEY, Colonel Commandant, U.S. Marine Corps. The Adjutant and Inspector, U.S. Marine Corps Head-Quarters.'

'June 4, 1887, in pursuance of this order the claimant was discharged.

'(3) It does not appear that he demanded to be tried by court-martial, or protested against his discharge.

'(4) He has not received any 'retained pay' under section 1281 of the Revised Statutes, nor transportation and subsistence from the place of discharge to the place of enlistment under section 1290. He has, however, receivedall other pay and allowances. The distance from Washington navy-yard to Brooklyn is 228 miles.

'(5) Under the practice of the accounting officers of the treasury department enlisted men of the marine corps have been held to be entitled to all the benefits of sections 1281 and 1290 of the Revised Statutes.

'CONCLUSIONS OF LAW.

'Upon the foregoing findings of facts the court decides, as conclusions of law, that the claimant is entitled to recover for 'retained pay' under section 1281 of the Revised Statutes, $65.20; and for transportation and subsistence, under section 1290, $8.10.'

From the judgment entered upon this finding the defendant appealed to this court.

Asst. Atty. Gen. Maury, for appellant.

Mr. Justice BROWN, after stating the facts as above, delivered the opinion of the court.