UNITED STATES v. VINTON, 28 F. Cas. 379

STORY, Circuit Justice. The defendant, Captain Vinton, appears, by the statement of facts, to have been commissioned as a lieutenant in the army on the 30th of September, 1819; and he served under that commission until the 30th of June, 1834, when he was commissioned by the president, by and with the advice and consent of the senate, as a captain by brevet, to take rank from the 30th of September, 1829, the time when his ten years’ service expired.

He claims, and has received, the additional pay of ten dollars per month, as captain by brevet, for different periods of time between September, 1830, and July, 1832, during which periods he had the command of a captain by brevet The United States insist, that this additional pay has been received and retained against law. And the question now is, whether Captain Vinton has rightfully received it, and can rightfully retain It, according to the existing laws on this subject.

The act of July 6, 1812 (chapter 37), provides that the president shaE be authorized “to confer brevet rank on such officers of the army as shall distinguish themselves by gallant actions, or meritorious conduct, or who shall have served ten years in any one grade.” The act of April 16, 1818 (chapter 64), provides “that the officers of the army, who have brevet commissions, shall be entitled to and receive the pay and emoluments of their brevet rank, when on duty, and having a command according to their brevet rank; and at no other time;’.’ It is plain that the additional pay and emoluments of brevet rank cannot be claimed, until the party has received his brévet commission, and is properly qualified to- act under it.

And if there were nothing more in the present case, there would be no room for doubt or controversy.

But the true question here is, not whether the party must have a brevet commission (for Captain Vinton has that); but whether his commission takes effect only from its actual date; or, by relation back, takes effect at and from the 30th day of September, 1829, from the terms in the commission, that he is thereby “to take rank irom the 30th of September, 1829.” If it is to'take‘effect from this last period as to rank, it is difficult to perceive, why the pay and emoluments of the rank do not follow the rank itself, according to the provisions of the act of 1818 (chapter 64).

It has not been denied, and, indeed, it is tacitly admitted by the argument, that the president, by the advice and consent of the senate, has authority to confer brevet rank from a period antecedent to the actual appointment and commission. That point, therefore, is: fairly out of the case; and, indeed, we must admit, that Captain Vinton was regularly and honorably entitled to the rank from such antecedent period, since it was actually conferred upon him by the proper authority.

It appears to me. that the commission does; not take effect solely from and after its date;but in this instance retroactively, it has effect from and relation to the 30th of September, 1829. I hold this to be the natural, nayj the-necessary construction of the words of the commission. Unless this construction is given to the instrument, .we in fact strike out of it the words, “to take rank from the 20th of September, 1829,” a liberty, which no court of justice can be justified in assuming. If the words, then, are to have any meaning, they confer on Captain Vinton the brevet rank of captain from that time.

If they confer on him that rank from that time, then they confer on him also the pay and emoluments of that rank, . when he is on duty, and has a .command according to that rank, from and after that time. It seems to me, that the pay and emoluments.are necessarily attached to the rank; and that if the rank existed from September, 1829, and-the duty and command also existed, then the pay and emoluments followed of course.

It is admitted, that, in equity, he ought to receive the pay and emoluments; and I think, he' is. equally so entitled at law, upon the plain intent of the commission, and of the act of congress regulating the pay and emoluments. The whole argument, on behalf of the United1 States, rests upon the ground, that the commission can operate only from and after its date, to confer brevet rank and pay in futuro. But the very terms of the commission contradict that, as to rank; and if so, where is the ground for a distinction between the rank, and the pay arid emoluments? The act of congress, states none.

The commission states none. I confess myself unable to find any. If we-construe the commission as a commission creating Captain Vinton a captain by brevet from the 30th of September, 1829, the whole difficulty in the case vanishes. If we adopt any different construction, we reject the words of' the instrument, or we deny them any meaning; They become, vox et prseterea nihil. Having said .thus much, the subject is, with me, exhausted. My judgment is, that the United States ought to take nothing by their suit, and that judgment ought to be entered for the defendant.

The district judge concurs in this opinion;- and therefore let judgment be entered accordingly.