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UNITED STATES V. SWEENY, 157 U. S. 281 (1895)

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U.S. Supreme Court

United States v. Sweeny, 157 U.S. 281 (1895)

United States v. Sweeny

No. 889

Submitted March 5, 1895

Decided March 25, 1895

157 U.S. 281


In computing the time of service which entitles an officer in the army to longevity pay, service in a volunteer regiment is not service "in the army of the United States" within the meaning of the 15th section of the Act of July 5, 1838, c. 162, 5 Stat. 256.

This was a petition originally filed by Thomas W. Sweeny, brigadier general on the retired list of the army, to recover the sum of $182.05, charge against him by the United States, as to which amount he was claimed to be in arrears and paid by him under protest. The petitioner having died after the commencement of the action, the appellee was admitted to prosecute the claim as administratrix.

The case was argued and submitted in May, 1893, and the petition dismissed. Claimant applied for a rehearing, which was granted, and the case again submitted, and decided by a majority of the court in her favor. Judgment was thereupon entered in the sum of $182.05, and the court made a finding of facts, of which the following is a summary:

On December 3, 1846, Thomas W. Sweeny, appellee's intestate, being at that time a lieutenant in the Second New York Volunteers, was mustered into the military service of the United States, under the Act of May 13, 1846, authorizing the President to accept the services of 50,000 volunteers for the prosecution of the existing war between the United States chanroblesvirtualawlibrary

Page 157 U. S. 282

and Mexico. He served in this capacity until March 17, 1848, when, having received a commission as second lieutenant in the second United States infantry, he was mustered into the regular service of the United States. Sometime after March 3, 1853, five years from the date of his commission in the regular army, he charged for and was paid his first longevity ration for five years' prior service, under the Act of July 5, 1838. In September, 1855, he charged in his voucher for pay one longevity ration for the period from December 4, 1851 (five years from his muster into the service as a volunteer), to March 3, 1853, and was paid this item by the paymaster, October 15, 1855. The disbursement of this longevity ration from December 4, 1851, to March 3, 1853, was never approved or allowed by the accounting officers, but was disallowed by them upon the first examination of the paymaster's voucher. The matter was reported by the Secretary of War to the Second Comptroller, who, on July 4, 1856, filed a written opinion to the effect that the time spent in the military service as a volunteer under the Act of May 13, 1846, could not be counted in the longevity rations under the Act of July 5, 1838. In accordance with this decision, the voucher was disapproved by the Second Auditor and by the second Comptroller, and the amount charged against Lieut. Sweeny.

On August 31, 1857, he was paid the amount of the second longevity ration from December 3, 1856, to August 31, 1857, and after that date he was successively paid his second ration for the respective months down to February, 1858. But these payments were disallowed in due course by the accounting officers, and the appellee's intestate was again required to refund.

In 1892, he was informed that he was in arrears to the United States in the sum of $182.05, which he paid under protest, and subsequently began this suit to recover the amount so paid, upon the ground that he ought to have been credited with longevity rations due on account of his service as a volunteer in the Mexican War, the first two of which rations he had been required to refund, while the last two had never been paid to him. chanroblesvirtualawlibrary

Page 157 U. S. 283

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