United States v. Morton/Opinion of the Court

tion 1262 of the Revised Statutes: 'There shall be allowed and paid to each commissioned officer below the rank of brigadier general * *  * ten per centum of their current yearly pay for each term of five years of service.' In the acts of February 24, 1881, and June 30, 1882, making appropriations for the support of the army, (21 St. 346; 22 St. 118,) under the head, 'For pay of the army,' gross sums are appropriated for, among other things, this purpose: 'Additional pay to officers for length of service, to be paid with their current monthly pay, and the actual time of service in the army or navy, or both, shall be allowed all officers in computing their pay.' The only question for decision is whether the time of service as a cadet is to be regarded as 'actual time of service in the army.' The view acted on by the accounting officers of the government in dealing with the officer under section 1262 of the Revised Statutes, and section 24 of the act of July 15, 1870, (16 St. 320,) of which section 1262 was a re-enactment, was to allow only for length of service as a commissioned officer in the regular army. By section 7 of the act of June 18, 1878, (20 St. 150,) it was provided that officers of the army who had served 'as enlisted men in the armies of the United States, regular or volunteer,' should be credited with the fully time they had served as such enlisted men, 'in computing their service for longevity pay.' Under this statute the practice was not to regard an officer who had served as a cadet as having thereby served as an enlisted man in the army, (16 Op. Attys. Gen. 611;) and the court of claims, in Babbitt v. U.S. 16 Ct. Cl. 202, supported that view. After the passage of the act of February 24, 1881, the accounting officers of the government administered it as not requiring that the time of service as a cadet should be allowed as 'actual time of service in the army.' This was done in pursuance of the advice of Atty. Gen. McVeagh.

But an examination of the legislation of congress shows that the cadets at West Point were always a part of the army, and that service as a cadet was always actual service in the army. Cadets are first mentioned in the act of May 9, 1794, (1 St. 366,) which provided for organizing, by voluntary enlistment, a corps of artillerists and engineers, of which a part was to be 32 cadets, ranking as sergeants, but spoken of as officers. These were part of the army. By section 6 of the of July 16, 1798, (1 St. 605,) cadets are called non-commissioned officers in the army of the United States, and their pay is fixed at $10 per month and two rations per day.

By the act of March 16, 1802, entitled 'An act fixing the military peace establishment of the United States,' (2 St. 132,) it was provided (section 1) that the military peace establishment of the United States should embrace a regiment of artillerists, of which a part should be 40 cadets. By sections 4 and 5 the pay and rations of the cadets were fixed. By section 26 provision was made for organizing a corps of emgineers, consisting of officers and 10 cadets, whose pay was fixed; and by section 27 the corps was to be stationed at West Point, New York, and to constitute 'a military academy,' and the officers and cadets were to be 'subject at all times to do duty in such places and on such service' as the president should direct. Clearly, all these cadets were a part of the army.

By sections 1 and 2 of the act of April 12, 1808, (2 St. 481,) additional military forces were to be raised, comprising, in infantry, riflemen, artillery, and dragoons, 156 cadets, the cadets (section 4) to receive the like pay, etc., with the cadets of the then existing military establishment, and being classed by themselves, and not as either officers or non-commissioned officers, and (section 5) to be subject, with the then existing cadets, to the rules and articles of war which had been establish or might thereafter, by law, be established.

By section 2 of the act of April 29, 1812, (2 St. 720,) entitled 'An act making further provision for the corps of engineers,' it was provided that the military academy should consist of the corps of engineers and certain professors. By section 3 it was enacted that the cadets theretofore 'appointed in the service of the United States, whether of artillerly, cavalry, riflemen, or infantry,' or that might in future be appointed, as thereinafter provided, should not exceed 250, and might be attached by the president, as students, to the military academy, and be subject to the established regulations thereof; 'that they shall be arranged into companies of non-commissioned officers and privates, according to the directions of the commandant of engineers, and be officered from the said corps, for the purposes of military instruction; that there shall be added to each company of cadets four musicians; and the said corps shall be trained and taught all the duties of a private, non-commissioned officer, and officer, by encamped at least three months of each year, and taught all the duties incident to a regular camp; that the candidates for cadets be not under the age of 14 nor above the age of 21 years; that each cadet * *  * shall sign articles, with the consent of his parent or guardian, by which he shall engage to serve five years, unless sooner discharged; and all such cadets shall be entitled to and receive the pay and emoluments now allowed by law to cadets in the corps of engineers.' This was the organization of the military academy, substantially, as it has since continued.

By section 1 of the act of March 3, 1815, (3 St. 224), entitled, 'An act fixing the military peace establishment of the United States,' it is directed that the corps of engineers, as then established, be retained; by section 4 that the compensation, etc., of the cadets and others 'composing the military peace establishment' should be the same as prescribed by the before-mentioned acts of 1802 and 1808; and, by section 7, that the several corps authorized by the act 'shall be subject to the rules and articles of war.'

By section 28 of the act of July 5, 1838, (5 St. 260,) it was enacted that 'the term for which cadets hereafter admitted into the military academy at West Point shall engage to serve, be, and the same is hereby, increased to eight years, unless sooner discharged.'

By section 1 of the act of July 28, 1866, (14 St. 332,) it was provided that the military peace establishment of the United States should thereafter consist of so many regiments of artillery, of cavalry, and of infantry, 'the professors and corps of cadets of the United States military academy,' and such other forces as should be provided for by that act, 'to be known as the army of the United States.' This enactment remained in force, and is reproduced in section 1094 of the Revised Statutes, which says that 'the army of the United States shall consist of,' with other constituents, 'the professors and corps of cadets of the United States military academy.' From this review of the statutes, it cannot be doubted that, before the passage of the act of July 28, 1866, as well as afterwards, the corps of cadets of the military academy was a part of the army of the United States, and a person serving as a cadet was serving in the army; and that the time during which the plaintiff in the present case was serving as a cadet was, therefore, actual time of service by him in the army. The practical construction of the requirement of the act of 1838, that the cadet should engage to serve for eight years, shown by the fact that the form of the engagement in this case was to 'serve in the army of the United States for eight years,' is a circumstance of weight to show that the government, from the beginning, treated the plaintiff as serving in the army. The service for which he engaged began on the first of July, 1865, and the eight years ran from that time. That being his status, the acts of 1881 and 1882, in speaking of 'actual time of service in the army,' cover the time of his service as a cadet.

In U.S. v. Tyler, 105 U.S. 244, it was held that an officer retired from active service who was declared by statute to be a part of the army, who could wear its uniform, whose name was required to be borne on its register, who might be detailed by his superior officers to perform specified duties, and who was subject to the rules and articles of war, was in the military service; and that the increase of pay given for each term of five years of service, by section 1262 of the Revised Statutes, and by section 24 of the act of July 15, 1870, (16 St. 320,) from which that section was taken, applied to the years so passed in the service after as well as before retirement. Under the statutes involved in the present case, a cadet at West Point in serving in the army as fully as an officer retired from active service is serving in the army, under the statutes which apply to him, so far as the question of longevity pay is concerned.

The judgment of the court of claims is affirmed.