The court of claims filed the following findings of fact and conclusions of law:
1. The claimant, Donn C. Mitchell, was enrolled in the Volunteer Army, during the Spanish war, as second lieutenant of Troop E. Frist Ohio Volunteer Cavalry, on the 3d day of May, 1898. He served in the grade of second lieutenant until promoted to first lieutenant October 20, 1898. He was mustered out as first lieutenant Obtober 23, 1898. His entire service was within the limits of the United States.
2. While on duty as second lieutenant of the First Ohio [205 U.S. 161, 162] Volunteer Cavalry, at Huntsville, Alabama, during the Spanish war, claimant received the following order:
(Signed) A. C. Rogers,
Captain and Regtl. Adj. 1st Ohio Vol. Cav.'
This order was approved by the commanding general in the field in the following orders:
... * *
... * * [205 U.S. 161, 163]
... * *
(Signed) Clarence K. Edwards,
Under these orders claimant exercised command of Troop E from August 26, 1898, to October 23, 1898, when he was mustered out with his regiment.
So much of G. O. No. 86, A. G. O. of 1898, as relates to the matter of pay for exercising a higher command, is as follows:
Adjutant General's Office,
Washington, July 2, 1898.
General Orders No. 86 was amended by General Orders No. 155, dated September 27, 1898, by striking out the above portion of the order, and, on the same date, Circular No. 18, promulgating this order, was amended by striking out the portion above quoted and inserting in lieu thereof the following language, to wit:
At the time that he assumed, and during the time that he exercised, command of troop E, he was the senior officer present with the troop.
The Treasury Department, from the decision of the Comptroller of March 31, 1899 (5 Comp. Dec. 641), to the decision of the court in Humphreys v. United States, 38 Ct. Cl. 689, on May 25, 1903 (pp. 15-16), recognized this sort of orders, so subsequently confirmed, as sufficient authority for the higher pay. Under similar orders, subsequently affirmed, all officers were paid either by the Pay Department or by the Treasury Department in claims presented after the war.
3. From August 26, 1898, to October 19, 1898, claimant was originally paid the rate due a second lieutenant of cavalry, and from October 20 to October 23, 1898, he originally received the pay of a first lieutenant of cavalry. He subsequently filed a claim for additional pay for command of the troop and was paid by the auditor for the War Department, [205 U.S. 161, 165] October 30, 1899, the pay of a captain for the entire period from August 26, 1898, to October 23, 1898.
4. On the 14th day of September, 1898, a furlough of thirty days for said regiment was authorized under General Orders No. 130, A. G. O., 1898, and amendatory circulars. The above-named claimant did not receive such furlough. From the beginning of the furlough to September 26, 1898, the said claimant was sick in Mount Carmel Hospital, Columbus, Ohio. From September 26, 1898, to the end of the furlough period he was detained for duty and actually performed duty. During the whole furlough period he was at all times subject to the orders of his superior officers until final muster out. Claimant was first taken sick at Huntsville, Alabama, before the furlough, but accompanied his regiment to the home station at Columbus, Ohio, where he was placed in the hospital by officers of said regiment, the surgeon being absent. While at the hospital claimant performed some military service by directing a clerk employed by him for that purpose.
5. If claimant is entitled to retain the pay already received by him, the amount due him as extra pay at the rate due a captain, mounted, is $ 166.66.
If entitled to extra pay, and not entitled to retain the pay of a captain as stated in finding 3, there should be deducted from the extra pay allowed the sum of $79.44.
The court rendered judgment for the claimant in the sum of $166.66. 41 Ct. Cl. 36.
Mr. Chief Justice Fuller delivered the opinion of the court:
It is conceded by the government that claimant is entitled to extra pay, so that the question is to what amount. Was he entitled to receive one month's extra pay of a captain of cavalry, mounted ($166.66), or one month's extra pay of a second lieutenant of cavalry, mounted ($125)?
We lay out of view the suggestion that if claimant were entitled to the extra pay of a second lieutenant of cavalry only, then that a certain sum or sums ought to be deducted as having been previously improvidently paid by the auditor for the War Department. The United States filed no setoff or counterclaim, and we think we cannot overhaul the allowance by the auditor for the War Department in the circumstances. Such payment, if made in error, did not determine the question before us within United States v. Hite, 204 U.S. 343 , 51 L. ed. 514, 27 Sup. Ct. Rep. 386. [205 U.S. 161, 166] The claim is made under 7 of the act of April 26, 1898 (30 Stat. at L. 364, 365, chap. 191, U. S. Comp. Stat. 1901, p. 895), reading as follows: 'That in time of war every officer serving with troops operating against an enemy who shall exercise, under assignment in orders issued by competent authority, a command above that pertaining to his grade, shall be entitled to receive the pay and allowances of the grade appropriate to the command so exercised.'
The main question is whether claimant exercised, 'under assignment in orders issued by competent authority, a command above that pertaining to his grade?' When he assumed command of his company. August 26, 1898, he was the senior officer present, the captain and the first lieutenant being absent. Section 253 of the Army Regulations of 1895, then in force, provided: 'In the absence of its captain, the command of a company devolves upon the subaltern next in rank who is serving with it, unless otherwise specially directed.'
Assistant Attorney General Van Orsdel and George M. Anderson for appellant.
George A. King, William B. King, and Clark McKercher for appellee.
Statement by Mr. Chief Justice Fuller:
[205 U.S. 161, 169] This embodied the rule of succession by seniority prevailing in the ordinary course of military affairs, while, at the same time, it recognized that there might be exceptions, in respect of which special direction was required, and 7 of the act of April 26, 1898, applied to such cases.
The exceptions spring from necessity, and where it is apparent that that does not exist, orders relied on as the basis for increased pay under 7 are ineffectual for that purpose.
In Humphreys v. United States, 38 Ct. Cl. 689, the court of claims held that what the law contemplated was 'necessary, and not gratuitous, assignments, and only such as would be for the good of the service for the vigorous prosecution of the war.' Chief Justice Nott, speaking for the court, said: 'It seems to the court incontrovertible that the words 'under assignment in orders issued by competent authority' constitute the controlling limitation of the statute; and the limitation implies that the benefits of the statute extend only to cases where such an order is necessary to impose the burden of the higher command upon an officer.' We concur in that view, and, tested by it, Special Orders No. 44, dated August 24, 1898, whereby the lieutenant colonel of the First Ohio Volunteer Cavalry announced that First Lieutenant Forsyth was relieved of the command of troop E, and, as incident thereto, that Second Lieutenant Mitchell was appointed to the command, cannot be considered as an 'assignment in orders issued by competent authority,' within 7. That section was not enacted to give increased pay for the discharge of the ordinary duties of the service, but to give compensation for the greater risk and responsibility of active military command, and no assignment in orders when unnecessary to that end can make a case within the statute. Truitt v. United States, 38 Ct. Cl. 398, 406; Parker v. United States, 1 Pet. 293, 297, 7 L. ed. 150, 151. Here the additional duties discharged by Lieutenant Mitchell were 'the ordinary incidental duties of military official life which go with each officer's commission.' 38 Ct. Cl. 692. [205 U.S. 161, 170] The attempted confirmation by Special Orders No. 97 must fail of effect under 7 for like reasons.
Other questions argued at the bar need not be discussed.
Judgment reversed and cause remanded, with a direction to enter judgment in favor of claimant for $125.