OpenJurist

81 US 550 United States v. Hunt

81 U.S. 550

20 L.Ed. 739

14 Wall. 550

UNITED STATES
v.
HUNT.

December Term, 1871

APPEAL from the Court of Claims; the case being thus:

The third section of the act of March 3d, 1865,* enacts:

'That from and after the first day of March, 1865, and during the continuance of the present rebellion, the commutation price of officers' subsistence shall be fifty cents per ration: Provided, That said increase shall not apply to the commutation price of the rations of any officer above the rank of brevet brigadier-general, or of any officer entitled to commutation for fuel or quarters.'

Under this enactment, Hunt, a brigadier-general of volunteers, filed a petition in the Court of Claims claiming commutation pay. The United States demurred; thus admitting, of course, that the petitioner was a brigadier-general during the recent civil war, and was not entitled to commutation for fuel and quarters. He was then entitled to the increased commutation for subsistence if his rank of brigadier was not above the rank of brevet brigadier. The question was, was it such?

The Court of Claims gave judgment in favor of the petitioner, and the United States appealed, assigning as error that a brigadier-general is above the rank of a brevet brigadier-general, and therefore not entitled to the benefit of this provision.

Mr. T. J. D. Fuller, in support of the ruling below:

The solution of the question turns upon the word 'rank,' as used in the proviso, and the equality of rank of a brigadier with a brigadier by brevet. The Court of Claims held that the rank of each is the same, and consequently that the one is not above or below the other. Its construction of the act was that the proviso should be read as though the word 'brevet' were not there.

Now we submit that in rank there is no difference between a brevet brigadier, or, more accurately speaking, a brigadier-general by brevet and a brigadier-general without a brevet; that the one may command the other, by virtue of the priority of the date of their respective commissions when thrown together, under circumstances contemplated by the usage of the service and the Articles of War. What is rank in the army? The grades of rank in the army, as known and recognized by law at the present time, are——

1. General.

2. Lieutenant-general.

3. Major-general.

4. Brigadier-general.

5. Colonel.

6. Lieutenant-colonel.

7. Major.

8. Captain.

9. Lieutenants—first and second.

The law knows no intermediate rank, or grade of rank, between the enumerated grades or ranks. There is but one rank of brigadier-generals. There are not two ranks of brigadier-generals, the one inferior or the other superior; but one grade, one rank. There are two kinds of rank in tenure, but nevertheless equal. 'Rank' by brevet is rank in the army generally, as contradistinguished from rank in some one of the divisions of the army. Campbell's Dictionary of Military Science defines 'brevet' to be 'a rank in the army higher than the regimental commission held by an officer. In garrison and brigade duties it confers precedence according to seniority.'

Mr. C. H. Hill, Assistant Attorney-General, contra.

The CHIEF JUSTICE delivered the opinion of the court.

1

Our duty in construing acts of Congress is to give the meaning to words which Congress obviously intended. It may be that in the strict sense of the military term the rank of brigadier and brevet brigadier is the same, but it is well known that practically they are by no neans identical, and that the position of the former is, in many respects, better than that of the latter. Brevet rank is conferred, in theory at least, for special and meritorious services by commission from the President, udner authority of an act of Congress. It does not entitle the holder to corresponding pay or command, except under special circumstances defined by law. When an officer holding rank by brevet receives a regular commission of the same grade, he is said to be promoted and to become a full officer of that rank. These circumstances make it evident that there is a difference of military position between an officer by brevet and an officer by regular commission, and that the one is less eligible than the other. And Congress seems to have referred to this distinction of position rather than to technical rank in the provision under consideration. If they did not, why employ the word brevet at all? Why use the term brevet brigadier when it was so easy to say brigadier, and thus avoid all ambiguity? We think that Congress had in view the distinction between brevet rank and regular rank, to which we have referred, and regarded the latter as above the former. The practice of the Department of War, as we understand, and of the accounting officers, has been in accordance with this view, and seems to us correct.

2

JUDGMENT REVERSED.

*

13 Stat. at Large, 497.