« ΠροηγούμενηΣυνέχεια »
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.
It is provided as follows by section 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 full time they had served as such enlisted mer, "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 act 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 engineers, 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 established 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 artillery, 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, be 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 is 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.
(112 U. S. 36)
DAVIES, Collector, etc., v. CORBIN and others.
(October 27, 1884.)
1. PRACTICE-ERROR TO THE SUPREME COURT-MANDAMUS-ORDER AWARDING WRIT TO FINAL JUDGMENT.
An order awarding a peremptory writ of mandamus is a final judgment in a civil action within the meaning of that term as used in the statute regulating writs of error to the United States supreme court.
2. SAME-COLLECTION OF TAXES-AMOUNT IN DISPUTE.
One of the expectant beneficiaries of a proposed tax has a right to a writ of error to the supreme court to enforce the collection of the tax, although the sum to which he would be entitled out of the whole amount collected should not reach $5,000. The value of the matter in dispute is measured by the whole amount of the tax, and not by the separate parts into which it is to be divided when collected.
In Error to the Circuit Court of the United States for the Eastern District of Arkansas. On motion to dismiss.
B. C. Brown, E. W. Kimball, and C. P. Redmond, in support of motion. A. H. Garland, in opposition.
WAITE, C. J. The facts on which this motion rests are these: Each of the defendants in error recovered a separate and distinct judgment in the circuit court of the United States for the Eastern district of Arkansas against the county of Chicot. The aggregate of all the judgments was much more than $5,000; but the amount due upon each is not stated. After the judgments were recovered, the several plaintiffs commenced proceedings in the circuit court to compel the county court of the county to levy a tax for the payment of the amounts due them respectively. The result of these proceedings was that after several writs of mandamus were issued, "by the consent of the relators, and by and with the approval and consent of the circuit court, it was agreed that if the county court * * * would levy a tax of ten mills upon the property of said county, and collect the same, said tax to be distrib
uted pro rata among the judgments so recovered by the relators and others against said county" in the circuit court, "that such levy, collection, and distribution would be accepted by the relators, and the other judgment creditors, as a sufficient compliance by said county court with the commands of the said writs of mandamus." The county court carried out this agreement and levied the tax, which was in due form of law extended on the tax-books, and placed in the hands of Davies, the collector of the taxes of the county, for collection with the other taxes for that year. After the tax-book was delivered to the collector, he undertook the collection thereof, as he was bound in law to do, and proceeded until, "on the twenty-ninth day of January, 1884, being the last day of the January term of the Chicot county court, there was filed in open court a complaint in equity, by one Alice R. Hamlet, against" him, "setting up, among other facts, that she was the owner of certain lands in Chicot county, assessed for the year 1883 at $400; that no valid assessment had been made of said lands for various reasons therein set forth; that the board of equalization for said county, which met on the nineteenth day of June, 1883, was illegally organized, and proceeded, in violation of law, to alter and change the assessments of real and personal property turned over to it by the clerk of said county, and avowing that assessments were not legally equalized, and that there is no valid assessment of property in said county for the year 1883, and that the taxes levied on said assessments cannot be legally enforced, by sale or otherwise, against the objection of the tax-payers of said county. The complaint further set forth "the various assessments or rates of taxes levied by the county court for different purposes for the year 1883, including ten mills to pay the judgments against said county" in the circuit court. Under this complaint "a temporary restraining order was made by the Hon. JOHN M. BRADLEY, judge of said court, forbidding" the collector "from collecting any portion of said ten-mill tax." In obedience to this injunction, the collector stopped the collection of the "ten-mill tax," though he went on with all the rest.
Thereupon all the relators united in an application to the circuit court for a rule on the collector to show cause why a peremptory writ of mandamus should not issue commanding him to proceed with the collection of the 10-mill tax. The collector appeared in obedience to the rule, and for cause showed that he had been enjoined by the state court from making the collection. The parties went to a hearing on the application of the relators and the return of the collector to the rule. The circuit court, after hearing, awarded the writ, and for the reversal of an order to that effect this writ of error was brought by the collector. *The relators now move to dismiss the writ, because (1) an order awarding a peremptory writ of mandamus is not a "final judgment;" and (2) the value of the matter in dispute does not exceed $5,000, inasmuch as no one of the relators will be "entitled to receive of the tax collected so much as five thousand dollars, and no single tax-payer will be required to pay that amount of tax." A motion to affirm, as allowed by section 5, rule 6, has not been united, as it very properly might have been, with this motion to dismiss.
As to the first objection, it is sufficient to say that the practice of the court has always been the other way. Our reports are full of cases in which jurisdiction of this kind has been entertained, and from 1867, when Riggs v. Johnson Co.*6 Wall. 166, was decided, until now, our power to review such orders as final judgments has passed substantially unchallenged. While the writ of mandamus, in cases like this, partakes of the nature of an execution to enforce the collection of a judgment, it can only be got by instituting an independent suit for that purpose. There must be-First, a showing by the relator in support of his right to the writ; and, second, process to bring in the adverse party, whose action is to be coerced, to show cause, if he can, against it. If he appears and presents a defense, the showings of the parties make up
the pleadings in the case, and any issue of law or fact that may be raised must be judicially determined by the court before the writ can go out. Such a determination is, under the circumstances, a judgment in a civil action brought to secure a right; that is to say, process to enforce a judgment. The proceeding may be likened to a creditors' bill in equity, which is resorted to in aid of execution. The writ which is wanted cannot be had on application to a ministerial officer. It can only issue after a judgment of the court to that effect in an independent adversary proceeding instituted for that special purpose. Such a judgment is, in our opinion, a final judgment in a civil action, within the meaning of that term as used in the statutes regulating writs of error to this court.
The second objection is, to our minds, equally untenable. The writ which has been ordered in this case is not like that in Hawley v. Fairbanks, 108 U. S. 543, S. C. 2 SUP. CT. REP. 846, to compel the levy of taxes to pay separate and distinct judgments in favor of several relators, who, for convenience and to save expense, united in one suit to enforce their respective lights, but to compel a tax collector to collect a single tax which has been levied for the joint benefit of all the relators, and in which they have a common and undivided interest. As in the cases of Shields v. Thomas, 17 How. 5, and The Connemara, 103 U. S. 754, all the relators claim under one and the same title, to-wit, the levy of a tax which has been made for their benefit. They have a common interest in the tax, and it is perfectly immaterial to the tax collector how it is divided among them. He has no controversy with them on that point; and if there is any difficulty as to the proportions in which they are to share the proceeds of his collections, the dispute will be among themselves, and not with him. He cannot act upon separate instructions from the several creditors. His duty is to collect the tax for the benefit of all alike. A payment of the judgment of one creditor would not relieve him from his obligation to collect the whole tax. The object of the proceeding is not to raise the sums due the relators, but to raise the whole tax of 10 mills on the dollar. As the matter stands each relator has the right to have the whole tax collected for the purpose of distribution among all the creditors. It is apparent, therefore, that the dispute is between the tax collector on one side and all the creditors on the other, as to his duty to collect the tax as a whole for division among them, after the collection is made, according to their several shares. The value of the matter in dispute is measured by the whole amount of the tax, and not by the separate parts into which it is to be divided when collected. It is conceded that the amount of the tax is more than $5,000.
The motion to dismiss is overruled.
(112 U. S. 8)
WOODWORTH v. BLAIR and others.
(October 27, 1884.)
RAILROAD MORTGAGE-Foreclosure-RECEIVER-PRIOR MORTGAGE-PAYMENT.
Appeal from the Circuit Court of the United States for the Northern District of Illinois.
Henry Crawford, for appellant. E. Walker, for appellee.
GRAY, J. This is an appeal by a prior mortgagee of a tract of land occupied by the Chicago & Pacific Railroad Company, from decrees in a suit in