United States v. Morton

''Sol. Gen. Phillips'', for appellant.

S. S. Henkle and W. J. Moberly, for appellee.

Charles Morton was appointed a conditional cadet in the service of the United States on March 6, 1865, and was admitted as a conditional cadet on July 1, 1865, into the United States military academy at West Point, and received his warrant as a cadet, signed by the secretary of war, in January, 1866, stating that he had been appointed by the president a cadet of the United States military academy, to rank as such from July 1, 1865. On the first of July, 1865, when he was so admitted as a conditional cadet, he entered into an agreement, as required by law, bearing that date, and subscribed and sworn to by him, which stated that, 'having been selected for an appointment as cadet in the military academy of the United States,' he engaged, with the consent of his father, in the event of his receiving such appointment, that he would 'serve in the army of the United States' for eight years, unless sooner discharged by competent authority. The instrument embodied also the oath required by the act of July 2, 1862, (12 St. 502), to be the thereafter taken and subscribed by every person 'elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the president of the United States,' 'before entering upon the duties of such office, and before being entitled to any of the salary of other emoluments thereof.' Part of the oath was, 'that I will well and faithfully discharge the duties of the office on which I am about to enter.' He remained at the academy from July 1, 1865, until June 15, 1869, when he was duly graduated therefrom. He was commissioned as a second lieutenant in the third regiment of cavalry, to date from June 15, 1869, and thereafter as a first lieutenant in the same regiment, to take effect from September 25, 1876. He held the latter position down to March 31, 1883. He faithfully discharged the duties imposed on him by these various appointments, being continuously in the service of the United States, in a military capacity, from July 1, 1865, to March 31, 1883. In computing his service pay, he was not allowed credit for the time he was a cadet at West Point as part of his time of service in the army. He brought suit in the court of claims, against the United States, in July, 1883, to recover $169.07, as withheld from him in respect of time between February 24, 1881, and March 31, 1883, and, on the foregoing facts, that court rendered a judgment in his favor for that amount, from which the United States have appealed.

[Argument of Counsel from pages 2-3 intentionally omitted]

Mr. S. S. Henkle for appellee.

BLATCHFORD, J.