they may have served as officers and enlisted men in computing their service for longevity pay. That act has never been considered as retroactive in the sense of going back 40 years to the act of 1838 and giving to an officer additional pay for services rendered prior to 1878. The act of June 18, 1878, provided that all service an officer had, whether as a commissioned officer or as an enlisted man prior to the date of the act, should be considered in computing the longevity pay he was entitled to have in futuro. If Congress had considered that service as an enlisted man was service in the Army within the meaning of the act of July 5, 1838, and the later act of July 15, 1870 (16 Stat., 320), which is section 1262, Revised Statutes, the provision in the act of June 18, 1878, relating to enlisted service in the Regular Army would have been superfluous and unnecessary, but it seems to me evident that Congress did not so consider it and were legislating with the thought distinctly in mind that service as an enlisted man was not service in the Army as contemplated by the acts of July 5, 1838, and July 15, 1870. "Upon a review and consideration of all these laws I am led irresistibly to the conclusion that there is much reason for the view that both the acts of March 2, 1867, and June 18, 1878, were a legislative recognition and sanction of the construction placed upon the act of 1838 by the accounting officers of the Government. The construction placed upon the act of 1838 to the effect that said act contemplated that only service as a commissioned officer should be counted was, for a period of nearly 50 years, down to the time (1886) that Watson brought his suit in the Court of Claims asking that service as a cadet at the Military Academy be counted in computing his longevity pay, acquiesced in by Congress and officers of the Army themselves, though many of the latter had large pecuniary interests and the Court of Claims was open to them to bring suit. Under such circumstances it is my judgment that if the class of claims represented by the auditor's present settlement is to continue to be allowed, it should be by the specific authorization and direction of Congress. There is too great doubt as to the scope of the act of 1838 and the decisions of the courts relied upon in support of the contention that service as an enlisted man is service in the Army within the meaning of it, to warrant a continuance of the practice established by Assistant Comptroller Mitchell's decision of June 30, 1910, in the Collins case, and accordingly said decision should be, and is hereby, overruled. The practice established by the decision of July 24, 1838, which was followed, with but the slight interruption noted above, from that date to June 30, 1910, is restored, and settlement of claims to which it is applicable will be made in accordance with it.' "Although the Comptroller in the Hendrickson case expressly states that the question whether cadet service is service in the Army, within the meaning of the act of July 5, 1838, is not involved in the auditor's settlement, upon which this decision is founded,' yet the two questions, that of cadet service and service as an enlisted man, are so interwoven, and the general conclusion of the Comptroller, that service as a commissioned officer only was intended to be counted under the act of July 5, 1838, is so comprehensive, that the query naturally arises whether the Brodie decision, supra, is still to be followed in cases where cadet service is involved, or whether its conclusions have been modified or overruled, by implication, at least, by the decision of Comptroller Downey, of April 8, 1914, in the Hendrick son case. "The correct interpretation of the Hendrickson decision, and the full effect to be given it, become matters of great importance when the military status of cadets at West Point is considered. If the conclusions in the Hendrickson case be correct, and it must be assumed that they are, the first point to be considered is the exact military status of the cadets. "It is evident that a cadet is not a commissioned officer, as that term is used in the Articles of War or in any act of Congress, nor are they to be regarded as officers of the Army in the fullest sense of the word. Section 1343, Revised Statutes, which includes the Articles of War, governing the armies of the United States, says that the word 'officer, as used therein, designates a commissioned officer, and that the word 'soldier' is to be understood as referring to all noncommissioned officers, musicians, artificers, privates, and other enlisted men. It is true that in a sense a cadet is probably one of the minor officers referred to in section 3, Article II, of the Constitution, which gives Congress the authority to vest by law the appointment of inferior officers in the President alone, in courts of law, or in the heads of departments. The appointment by the President of a cadet, under the authority of this constitutional provision, can not be said to make the cadet an officer of the Army. "It is worthy of note that section 28 of the act of July 5, 1838, section 15 of which provided for longevity rations, requires that cadets shall engage to serve for eight years, unless sooner discharged. This strongly indicates that at the time of the enactment of this law Congress regarded a cadet as being a portion of the enlisted branch of the Army, because the tenure of office of the commissioned branch was not limited at the time. "It would seem that the weight of authority justifies the conclusion expressed by Judge Advocate General Davis in an opinion addressed to the Secretary of War, under date of January 16, 1904, that 'cadets are not commissioned officers of the Army, but belong to a special class of enlisted men whose appointments, duties, and tenure of office are defined and established in appropriate enactments of Congress.' "In view of the foregoing, I am of opinion, and so decide, that the act of July 6, 1914 (Public, No. 125), in so far as it applies to any claim which may have been or may hereafter be filed, invoking its benefits, does not authorize the crediting of service as a cadet at the Military Academy at West Point to anyone who served as a commissioned officer in the United States Army prior to April 13, 1861, in computing the longevity pay or allowances which may be due him or his heirs by virtue of said act." So much of the auditor's decision as modifies an existing construction of section 15 of the act of July 15, 1838 (5 Stat., 258), is disapproved for reasons hereinafter stated. Although the Supreme Court of the United States, on March 25, 1895, in the case of Sweeny (157 U. S., 281), decided that service in a volunteer regiment is not service" in the Army of the United States" within the meaning of the fifteenth section of the act of July 5, 1838; and, on March 11, 1889, in the case of Watson (130 U. S., 80), decided that service as a cadet at the United States Military Academy should be counted for longevity under said section 15; yet it has never decided that service as an enlisted man in the Regular Army should or should not be counted for longevity under said section. The prior service as an enlisted man of Richard W. Tyler was not in the Regular Army, but was in the volunteer force. (See page 130, part 8, of Volunteer Army Register published in 1867.) In his case the Court of Claims (16 C. Cls., 223) did not count service as an enlisted man for longevity under the act of 1838, but did count such service under section 7 of the act of June 18, 1878 (20 Stat., 150), in computing longevity pay for service on and after June 18, 1878. The judgment of the Court of Claims in that case was affirmed by the Supreme Court in October, 1881 (105 U. S., 244). Under Second Comptroller Butler's decision of May 8, 1889, only three claims were allowed and paid and in each case the prior service was that of a cadet. From July 5, 1838, to June 30, 1910 (date of Assistant Comptroller Mitchell's decision in case of Collins, 16 Comp. Dec., 887), a period of over 70 years, the accounting officers of the Treasury, in the settlement of claims for longevity allowances arising under the act of 1838 and not affected by any special act of Congress, uniformly excluded service as an enlisted man in computing length of service under said act. A departure from a long-established decision is almost equivalent to retrospective judicial legislation which affects existing rights as well as future rights. When, as here shown, a decision has been seemingly acquiesced in and applied in very numerous cases during a period of more than half a century the doctrine of stare decisis requires that it be sustained by the accounting officers of the Treasury. The Supreme Court has never decided that service as an enlisted man should be counted for longevity under the act of 1838, but it has decided that the contemporaneous construction of a statute when it has long prevailed "should not be disregarded or overturned except for cogent reasons and unless it be clear that such construction is erroneous" (124 U. S., 253, and 189 U. S., 472). In accordance with this view of the matter on April 8, 1914, in the case of Hendrickson (20 Comp. Dec., 733), I overruled said decision of June 30, 1910, in the case of Collins, under which not exceeding 160 claims based on enlisted service had been allowed and paid. My decision of April 8, 1914, the principal part of which has been correctly quoted by the auditor, I believe embodies a correct view of the law. It is well settled that the cadets of the United States Military Academy are not commissioned officers nor enlisted men, but are students appointed and admitted (with an agreement that they shall serve in the Army of the United States eight years) with a view to become officers of the Army. (See Opinions of the Attorneys General, vol. 1, p. 469; vol. 2, p. 251; vol. 7, p. 323; vol. 16, p. 611.) On October 27, 1884, in the case of Morton, the Supreme Court decided (112 U. S., 1) that the time of service of a cadet in the United States Military Academy is to be regarded as "actual time of service in the Army" within the meaning of the act of February 24, 1881 (21 Stat., 346). The court said: * * * * "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.' * 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. By section 28 of the act of July 5, 1838 (5 Stat., 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.' * *. From this review of the statutes it can not 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; * The practical construction of the requirement of the act of 1838, that the cadet should engage to serve 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 1st of July, 1865, and the eight years ran from that time." * * On March 11, 1889, in the case of Watson (130 U. S., 83), the Supreme Court, after quoting extracts from above-mentioned decision in case of Morton, said: "More direct and emphatic language could not be used to support the contention of the claimant in this case. The words 'actual time of service in the Army,' as used in the act of February 24, 1881, are not more expressive of cadet service at West Point than are the words 'for every five years he may have served or shall serve in the Army of the United States,' as used in the act of July 5, 1838. They both mean the same kind of service; and we are of the opinion that such service should be reckoned in computing longevity pay prior, as well as subsequent, to the act of February 24, 1881. We also concur with the Court of Claims that in this case there can be no recovery for any part of the claim that accrued prior to February 24, 1880, the day when the bar of the statute of limitations took effect. (Rev. Stat., sec. 1069.) The claim sued on is valid as to that part of it which accrued after that date." The decision of Second Comptroller Butler, May 8, 1889, in the case of Grant, is worded in part as follows: "In the case of The United States v. Watson (decided Mar. 11, 1889), the question was for the first time directly presented, whether cadet service was service in the Army within the meaning of the act of 1838, and was decided in the affirmative. "The acts referred to and considered in the decision were the act of July 5, 1838, the Regular Army act of March 2, 1867, and the. acts of July 15, 1870, June 18, 1878, February 24, 1881, and June 30, 1882. Strangely enough the Volunteer Army act of March 2, 1867, seems to have been omitted entirely from the discussion by counsel, and from the consideration of the court. 66 The decision in the Watson case gives an interpretation of the phrase 'he may have served or shall serve in the Army of the United States,' and makes service at the Military Academy service in the Army, removing the limitation to service as a commissioned officer which had been imposed by the accounting officers. This interpretation is put by the court on the ground that the cadets are a part of the Army and not upon the ground that they are in any sense officers. The court quotes with approval from the decision in the Morton case, in which the point decided was that cadets were part of the Army. Service as an enlisted man is obviously service in the Army, and must, therefore, be included in the principle of the decision. 66 * * * In the present case, in view of the wider meaning which the decision in the Watson case compels me to attribute to the act of 1838, that portion of the first section of the Volunteer Army act of March 2, 1867, which was considered merely declaratory, becomes additional legislation, and that portion which appeared to have enlarged must now be taken to have restricted the operation of the act of 1838. * So much of the short-lived decision of May 8, 1889, as relates to the inclusion, under act of 1838, of service as enlisted men and commissioned officers of volunteers is shown to be erroneous by the Supreme Court decision of May 25, 1895, in the case of Sweeny (157 U. S., 281). The decision of Second Comptroller Gilkeson, June 20, 1890, is worded in part as follows: 66 ** ** It is contended that unless this class of claims are allowed the accounting officers are virtually overruling a solemn decision of the Supreme Court of the United States, binding alike upon the Government and every citizen, and before which decision the highest as well as the lowest must bow. I yield to no man in the respect I entertain for the deliverances of the great constitutional court of last resort, and I would be far, very far indeed, from setting up my opinion against such an authority; but it will not be pretended that the authority of the Supreme Court, great as it is, binds either the citizen or the Government in any matter unless within the jurisdiction of the court. It follows, therefore, if it can be shown that the claims now under consideration are not within the jurisdiction of the Supreme Court of the United States, then I think it will be admitted that the decision in the Watson case is not a binding authority upon the accounting officers. It must be remembered that the |