United States v. La Tourrette

Statement by Mr. Justice GRAY:

This was a petition filed in the court of claims by James A. M. La Tourrette, and prosecuted after his death by his executrix, to recover the sum of $333.75, for longevity pay as a chaplain in the army from February 7, 1885, to April 26, 1887, inclusive. The facts found by the court of claims were in substance as follows:

On February 6, 1865, the claimant was elected and appointed chaplain for the post of Ft. Columbus, New York harbor, by the council of administration at the post, under the provisions of the act of July 5, 1838, c. 162, § 18, and of the supplementary acts of July 7, 1838, c. 194, § 2, March 2, 1849, c. 83, § 3, and February 21, 1857, c. 55, § 2, (5 Stat. 259, 308; 9 Stat. 351; ,11 Stat. 163.)

The action of the post council was approved by the secretary of war, and the claimant's appointment of employment as post chaplain was subsequently announced in a special order of the war department of May 19, 1866, as follows: 'Fort Columbus, New York harbor, is announced as a chaplain post, to date from February 6, 1865, in place of Fort Wood, New York harbor, discontinued as such from that date. The Reverend James A. M. La Tourrette is announced as post chaplain to Fort Columbus, New York harbor, from February 6, 1865. He will, in connection with his present duties at Fort Columbus, perform also those of Fort Wood, as heretofore.' Under that appointment, he served until April 6, 1867, but received no commission. It did not appear that he was required to take an oath of office. his employment was not for any fixed or definite time, and he was paid for services on the certificate of the post commander.

Under the provisions of the act of March 2, 1867, c. 145, § 7, (14 Stat. 423,) he was nominated by the president to the senate for appointment as post chaplain March 18, confirmed by the senate April 3, commissioned accordingly by the president April 6, to rank from April 3, and formally accepted the appointment April 27, 1867. On March 23, 1890, he was retired from active service as post chaplain, under the act of June 30, 1882, c. 254, (22 Stat. 118.)

His service as chaplain under the act of July 5, 1838, together with his service as post chaplain under the act of March 2, 1867, was continuous and uninterrupted from February 6, 1865, to March 23, 1890.

He was not borne on the army register before 1867. In the registers from 1867 to 1878, inclusive, his name appears, with the date of 'original entry into service,' April 3, 1867. The registers from 1879 to 1881, inclusive, refer to that date as 'date of commission;' and these registers, as well as those for 1882 and since, record the beginning of his service as chaplain of a post February 6, 1865, and as post chaplain, April 3, 1867, accepted April 27, 1867.

From April 27, 1867, to March 23, 1890, he was paid his salary with longevity pay, computed for the most part by crediting him with his service from February 6, 1865, but since February 6, 1885, with his service from April 27, 1867, only. If he is to receive credit for the time from February 6, 1865, to April 26, 1867, the longevity pay due him is the sum of $333.75 more than he has received.

On these facts the court of claims decided, as a conclusion of law, 'that the decedent, during his service from February 6, 1865, to April 26, 1867, was in the army of the United States, within the meaning of the law,' and therefore entitled to recover the sum claimed, and gave judgment accordingly. The United States appealed to this court.

Asst. Atty. Gen. Dodge and Charles C. Binney, for the United states.

Joseph W. Stryker, for appellee.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.