THIS case came up on a certificate of division, from the Circuit Court of the United States for the district of Massachusetts. It was to test the right of the defendant in error, who was also the defendant below, to certain pay, allowances, and emoluments, which he claimed, as being an officer of the marine corps. The questions which were certified to this court were the following:––
'1. Whether a brevet field-officer of the marine corps is by law entitled to receive the pay and rations of his brevet rank by reason of his commanding a separate post or station, although the force under his command should not be such as would by law, or by such regulations as have in this respect and for the time the force of law, entitle a brevet field-officer of infantry of a similar grade to brevet pay and rations?
'2. Whether the provision respecting brevet pay and rations in the third section of the act of 1818, chap. 117, is repealed by the act of 1834, chap. 132?
'3. Whether by force of the act of 1834, chap. 132, the joint resolution of the two houses of Congress of the 25th of May, 1832, respecting the pay and emoluments of the marine corps, is repealed?
'4. Whether by force of the army regulation, numbered 1125, authorizing the issues of double rations to officers commanding departments, posts, and arsenals, a brevet field-officer of marines, commanding a separate post or station, is entitled to double rations?
'5. Whether the additional fact of appropriations having been made by Congress for such double rations, entitles such marine officer to receive the same for the years for which such appropriations are made?
'6. Whether a brevet field-officer of the marine corps, commanding a separate post, and receiving his brevet pay and emoluments, but being a captain in the line, is entitled to the ten dollars a month additional compensation for responsibility of clothing, &c., under the act of 1834, chap. ___, applying to the marine corps the act of 1827, chap. 199?'
There was a statement of facts agreed upon in the court below, the only parts of which that bear upon the certified questions are the following:––
'It is further agreed that Colonel Freeman was commissioned a captain in the line of the marine corps on the 17th of July, 1821, and on that lineal rank he was commissioned a lieutenant-colonel by brevet on the 17th of July, 1831, and on the 30th of June, 1834, he was commissioned a major in the line of the marine corps.
'Colonel Freeman files an account, in set-off against the United States, of $1,013.93, for brevet pay and rations while in command on the Boston station, the same being a separate station or detachment, under the provision of the 3d section of an act of Congress of 16th April, 1814, for the augmentation of the marine corps. Said amount extends from the 30th of June, 1834, to the 1st of April, 1842, and has been presented to and disallowed by the fourth auditor.
'Said Freeman files an account also of $1,669 for double rations while in command on the Boston station, between the 30th of June, 1834, and the 1st of April, 1842, under a joint resolution of Congress of 25th May, 1832; which account has also been presented to and disallowed by the fourth auditor.
'Said Freeman files also an account of $354.69 for the responsibilities of clothing, &c., while a captain in the line of the marine corps, and in command of the marines on the Boston station, from the 17th of July, 1831, to the 30th of June, 1834, under an act of Congress of 30th June, 1834, making certain allowances, &c., to the captains and subalterns of the marine corps, as to officers of similar grades in the army, under an act of 2d March, 1827; which account has likewise been presented to and disallowed by the fourth auditor of the Treasury, on the ground that the defendant received the pay of a grade higher than that of captain.
'It is further agreed that double rations have been paid heretofore and up to the 30th of June, 1834, to the officers of the marine corps, in the manner and as stated in the letter of the fourth auditor of date 27th of April, 1842, and marked B, and annexed; also, that estimates and appropriations were made, as stated in said letter, since 1834.
'Upon the foregoing facts, the case is submitted to the court; the accounts of the said several claims of the said Freeman to be adjusted hereafter by the officers of the Treasury, if the same, or any portion of them, are found by the court to be legally due.
'FRANKLIN DEXTER, U. S. Dis. Att'y.
'W. H. FREEMAN.' The laws will be stated which bear upon each of the three items into which the account is divided, viz.: 1, Pay; 2, Rations; 3, Clothing.
On the 6th of July, 1812, (2 Story, 1278,) Congress passed an 'Act entitled an act making further provision for the army of the United States, and for other purposes,' the 4th section of which was as follows:––
'That the President is hereby 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: Provided, That nothing herein contained shall be so construed as to entitle officers so breveted to any additional pay or emoluments, except when commanding separate posts, districts, or detachments, when they shall be entitled to and receive the same pay and emoluments to which officers of the same grade are now, or hereafter may be, allowed by law.'
On the 16th of April, 1814, Congress passed an act (2 Story, 1414,) 'authorizing an augmentation of the marine corps and for other purposes,' the 3d section of which was exactly similar to the above, except that 'officers of the marine corps' were substituted for 'officers of the army,' and that in the proviso the words 'commanding separate stations or detachments' were substituted for 'commanding separate posts, districts, or detachments.'
On the 16th of April, 1818, an act was passed (3 Story, 1672,) 'regulating the pay and emoluments of brevet officers,' the 1st section of which was as follows:
'Be it enacted, &c., 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.'
In 1825, regulations for the army were issued; the 1124th section was as follows:
'Brevet officers shall receive the pay and emoluments of their brevet commissions, when they exercise command equal to their brevet rank; for example–a brevet captain must command a company; a brevet major and a brevet lieutenant-colonel, a battalion; a brevet colonel, a regiment; a ...