This record shows that on the fourteenth of September, 1882, Benjamin P. Runkle filed in the office of the second auditor of the treasury department a claim based on the decision of this court in U.S. v. Tyler, 105 U.S. 244, for longevity pay as an officer in the army of the United States, 'retired from active service;' and that on the twenty-seventh of June, 1883, the secretary of the treasury referred it to the court of claims, under section 2 of the act of March 3, 1883, (chapter 116, 22 St. 485,) for an opinion upon the following questions: '(1) Was the court-martial that tried Benjamin P. Runkle duly and regularly organized, and had it jurisdiction of the person of said Runkle, and of the charges upon which he was tried? (2) Were the proceedings and findings of said court-martial regular, and the sentence duly approved in part by the president of the United States, as required by law? (3) Was Benjamin P. Runkle legally cashiered and dismissed from the army of the United States in pursuance of said court-martial and subsequent proceedings? (4) Was the president of the United States authorized and empowered by executive orde to restore said Runkle to the army, as it is claimed he was restored by the order of August 4, 1877? (5) Is Benjamin P. Runkle now a retired army officer, with the rank of major, and, as such officer, entitled to longevity pay under what is known as the Tyler decision?' Runkle thereupon filed his petition in the court of claims, in accordance with the rules of practice in that court applicable to such cases, and the United States put in a counter-claim for '$23,585.62, moneys paid to the said claimant by the paymaster general and his subordinates without authority of law; being the pay and allowances of a major in the army upon the retired list from the fourth day of August, 1877, to January 1, 1884, during which period the said claimant was not a major in the army, nor in any way authorized to draw pay and allowances as aforesaid.'
The facts as found by the court of claims are as follows:
(1) April 22, 1861, the claimant was mustered in as a captain of Thirteenth Ohio volunteer infantry, and served as such till November 8, 1861, when he was mustered in as major. August 18, 1862, he was honorably mustered out. August 19, 1862, he was mustered in as colonel of Forty-fifth Ohio volunteer infantry, and honorably mustered out July 21, 1864. August 29, 1864, he accepted appointment as lieutenant colonel of Veteran Reserve Corps, and was honorably mustered out October 5, 1866. October 6, 1866, he accepted appointment as major of Forty-fifth United States infantry, became unassigned, March 15, 1869, and was placed on the retired list as major United States army, December 15, 1870.
(2) At the time he was so placed on the retired list he was on duty as a disbursing officer of the bureau of refugees, freedmen, and abandoned lands for the state of Kentucky, and had been on that duty from Aprill 11, 1867; and continued on it, without any new assignment to it, until he was arrested for trial before a court-martial, as hereinafter shown.