Assistant Attorney General Van Orsdel and Mr. John Q. Thompson for appellant. [204 U.S. 343, 344] Mr. Edward S. McCalmont for appellee.
Mr. Chief Justice Fuller delivered the opinion of the court:
This was a petition for the recovery of $116.66. The case having been heard by the court of claims, that court, upon the evidence, filed the following findings of fact and conclusion of law:
Findings of Fact.
1. The claimant, John M. Hite, was appointed assistant engineer in the United States Navy, with the relative rank of ensign, for temporary service during the late war with Spain, on May 14, 1898; he reported for duty on board the U. S. S. 'Massachusetts,' in obedience to orders of the Navy Department, on June 1, 1898, and served creditably as such officer on said ship until December 17, 1898, at which date he was detached and ordered to his home, and on December 22, 1898, was honorably discharged from the naval service. [204 U.S. 343, 345] The order referred to is in the words following:
2. The U. S. S. 'Massachusetts' was in commission and cruised beyond the limits of the United States (in Cuban waters) during the time of the claimant's service on board.
3. In settlement of claimant's claim for extra pay authorized by the act of March 3, 1899 [30 Stat. at L. 1214, chap. 427], he was allowed by the accounting officers of the Treasury Department two months' pay at the rate of pay of an assistant engineer in the Navy on waiting orders only, to wit, $166.66.
If entitled to two months' pay upon the basis of sea service the difference is $116.66.
Conclusion of Law.
Upon the foregoing findings of fact the court decides, as a conclusion of law, that the claimant is entitled to judgment in the sum of one hundred and sixteen dollars and sixty-six cents ($116.66).
The case is reported 41 Ct. Cl. 256.
The act of March 3, 1899 (30 Stat. at L. 1228, chap. 427), among other things, provides: [204 U.S. 343, 346] 'The officers and enlisted men comprising the temporary force of the Navy during the war with Spain, who served creditably beyond the limits of the United States, and who have been or may hereafter be discharged, shall be paid two months' extrapay; and all such officers and enlisted men of the Navy who have so served within the limits of the United States, and who have been or may hereafter be discharged, shall be paid one month's extra pay.'
Appellee's counsel say that the issue is correctly stated by counsel for the United States as follows:
Appellee was appointed an officer in the Navy, May 14, 1898, by authority of the act of Congress of May 4 of that year (30 Stat. at L. 369, chap. 234, U. S. Comp. Stat. 1901, p. 1056), which provided:
The war with Spain began April 21, 1898, and the treaty [204 U.S. 343, 347] of Paris was signed December 10, 1898. [30 Stat. at L. 1754.] Appellee served until December 17, 1898, at which time he was detached from the vessel on which he was serving and ordered home, where, on December 22, he was honorably discharged from the naval service. It seems to have been thought reasonable that the government should pay the expenses of the journey home and for the time in getting there.
The act of March 3, 1899, provided for extra pay for active service. Hite was detached because it became the Department's duty to discharge him under the proviso of the act of 1898, and the detachment was manifestly preliminary to his discharge. The order detaching him did not prescribe that on arrival home he was to hold himself 'on waiting orders' or for further assignment to duty. On the other hand, it required him to inform the Department of the status of his accounts, obviously in order that they might be settled on his leaving the service.
The two months' extra pay is given, as Chief Justice Peele, delivering the opinion of the court of claims, says, 'because of creditable service beyond the limits of the United States during the war with Spain, and, therefore, upon discharge such officers become entitled to the same pay they were receiving while so serving beyond the limits of the United States.' 'To hold, because the claimant war ordered to his home, where he was discharged five days later, instead of being discharged on the day he was detached, that therefore he is entitled only to the lesser pay, would be a construction too narrow to harmonize with the purpose of Congress as disclosed by the act.' Notwithstanding the considered dissenting opinion in the court below, we agree with the conclusion that, his engagement having ended, and he having been discharged, the two months' extra pay should have been given him upon the basis of the pay he was receiving when detached.
The contention of the government is that this case is governed by the ruling in United States v. North, 112 U.S. 510 , 28 L. ed. 808, 5 Sup. Ct. Rep. 285. In that case it was held that officers of the Navy and of the [204 U.S. 343, 348] regular Army, who were employed in the prosecution of the war with Mexico, were entitled to the three months' extra pay provided for by the act of Congress of July 19, 1848, chap. 104, 5, 9 Stat. at L. 248, and the act of February 19, 1879, chap. 90, 20 Stat. at L. 316.
The act of 1848 provided: 'That the officers, etc., engaged, etc., in the war with Mexico, and who served out the term of their engagement, or have been or may be honorably discharged, . . . shall be entitled to receive three months' extra pay.'
North was an officer in the Navy of the United States from May 29, 1829, to January 14, 1861, when he resigned. He served in the war with Mexico, as lieutenant, on board the frigate Potomac, from February 10, 1846, until July, 1847, when his vessel sailed for the United States. And Chief Justice Waite said:
In the present case, appellee was taken away from the ser- [204 U.S. 343, 349] vice when he was detached from his vessel, as he was appointed to serve 'only during the continuance of the exigency under which their services were required in the existing war,' and was entitled, in the circumstances of the case, to extra pay on the basis of that which he was receiving when detached, as we have said above.
Emory's Case was also considered by the court in the same opinion and the same conclusion reached, and reference was there made to that case as reported in 19 Ct. Cl. 254.
The judgment of the Court of Claims was right, and it is affirmed.
Mr. Justice Moody took no part in the disposition of this case.