United States v. Kingsley (138 U.S. 87)/Opinion of the Court

1. Claimant's right to retained pay depends upon Rev. St. § 1281, which reads as follows: 'To the rates of pay stated in the preceding section one dollar per month shall be added for the third year of enlistment, one dollar more per month for the fourth year, and one dollar more per month for the fifth year, making in all three dollars increase per month for the last year of the first enlistment of each enlisted man named in said section. But this increase shall be considered as retained pay, and shall not be paid to the soldier until his discharge from the service, and shall be forfeited unless he serves honestly and faithfully to the date of discharge.'

To entitle the soldier to this retained pay it is therefore necessary to show,-First, his discharge from the service; second, an honest and faithful service to the date of discharge. It was held by the court of claims, however, that to deny his right to retained pay a forfeiture must have been considered and declared by a court-martial or other military authority having jurisdiction in the premises, and that the question of honest and faithful service, required by the section, was not one that could be tried in a collateral proceeding. We are unable to concur in this opinion. By his enlistment the soldier contracts for honest and faithful service, and the rendition of such service is a condition precedent to his right to recover his retained pay. The fact that he has not rendered such service may be shown as well by his military record as by the judgment of a court-martial. It is true the word 'forfeited' is used in the statute, but we think it is not used in the technical sense of a punishment after judgment, but rather in the sense of a disability incurred by the non-performance of a contract. A similar meaning is attached to the word when used in connection with the claim of a mariner for his wages. By his contract of shipment the seaman also bargains for honest and faithful service, and obedience to the lawful commands of the master and other officers of his vessel, and, in case of desertion or gross misconduct, it is the constant practice of courts of admiralty to forfeit the whole or a part of his wages, irrespective of the actual damage suffered by the owner or master of the vessel. The Balize, Brown's Adm. 424. In an action at common law, however, such wages are not subject to forfeiture, but a deduction is made therefrom commensurate with the damages actually sustained. The statute under consideration imposes a like forfeiture for a breach of the soldier's contract of enlistment, irrespective of any actual damages occasioned by his misconduct, and such forfeiture may be declared by the court in which he brings his action, as well as by the judgment of a court-martial. Indeed, the word in this connection means nothing more than an incapacity to recover, by reason of misconduct, irrespective of any actual damages; or, as defined by Worcester, 'to lose by some breach of condition; to lose by some offense.'

We are confirmed in this view by an examination of U.S. v. Landers, 92 U.S. 77, which was an action for bounty and pay, wherein Mr. Justice FIELD, speaking for the court,say s: 'Forfeiture of pay and allowances up to the time of desertion follows from the conditions of the contract of enlistment, which is for faithful services. The contract is an entirety; and, if service for any portion of the time is criminally omitted, the pay and allowances for faithful service are not earned. And, for the purpose of determining the rights of the soldier to receive pay and allowances for past services, the fact of desertion need not be established by the findings of a court-martial; it is sufficient to justify a withholding of the moneys that the fact appears upon the muster-rolls of his company. If the entry of desertion has been improperly made, its cancellation can be obtained by application to the war department. But forfeiture of pay and allowances for future services, as a condition of restoration to duty, can only be imposed by a court-martial.'

That the accounting officers of the treasury were justified in withholding the pay of the claimant in this case, is manifest by the numerous offenses of which he appears, from the report of his commanding officer, to have been guilty. This record furnishes a clear case of failure to furnish the honest and faithful service demanded by the statute.

2. Different considerations apply to his claim for transportation and subsistence from the place of discharge to the place of enlistment. The right to this depends upon section 1290:

'When a soldier is discharged from the service, except by way of punishment for an offense, he shall be allowed transportation and subsistence from the place of his discharge to the place of his enlistment, enrollment, or original muster into the service. The government may furnish the same in kind; but, in case it shall not do so, he shall be allowed travel pay and commutation of subsistence for such time as may be sufficient for him to travel from the place of discharge to the place of his enlistment, enrollment, or original muster into the service, computed at the rate of one day for every twenty miles.'

We think this statute contemplates a discharge as a punishment inflicted by the judgment of a court-martial or other military authority for a specific offense, and not such a discharge as was issued in this case, for unfitness for service and general bad character. While this may justify the proper authorities in ordering the discharge of the soldier as a worthless member of the service, we cannot consider such a discharge as 'a punishment for an offense' within the meaning of the statute. The question whether such punishment must necessarily be awarded by the judgment of a court-martial is not presented by the record, and we express no opinion upon the point.

The judgment of the court of claims must, therefore, be reversed, and the case remanded, with directions to set aside the judgment already rendered, and to enter a new judgment in favor of the claimant for $8.10, for his transportation and subsistence.