United States v. Mitchell, 205 U.S. 161 (1907)
United States v. Mitchell
No. 180
Argued January 25, 1907
Decided March 18, 1907
205 U.S. 161
APPEAL FROM THE COURT OF CLAIMS
Syllabus
Section 7 of the Act of April 26, 1898, 30 Stat. 364, 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 the assignment under orders of competent authority must be necessary and nongratuitous.
A second lieutenant of the United States Army who, in the absence of the captain and first lieutenant, assumes command of the company in regular course under § 253 of the Army Regulations of 1895, is not exercising under assignment in orders issued by competent authority a command above that appertaining to his grade within the meaning of § 7 so as to obtain the benefit of the statute, even though a regimental special order may issue directing him to assume the command, and this action may be attempted to be ratified by special order of the commanding general where it is not apparent that any necessity for special direction existed.
Where the United States filed no set-off or counterclaim, the Court will not overhaul the allowance made to an officer of the army by the Auditor of the War Department. An overpayment erroneously made does not determine the legality of the claim.
41 Ct.Cl. 36 reversed.
The Court of Claims filed the following findings of fact and conclusions of law:
I. 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 October 23, 1898. His entire service was within the limits of the United States.
II. While on duty as second lieutenant of the First Ohio Volunteer Cavalry at Huntsville, Alabama, during the Spanish war, claimant received the following order:
Headquarters 1st Ohio Volunteer Cavalry
Camp Wheeler, Huntsville, Ala. August 24, 1898
Special Orders
No. 44.
I. 1st Lieut. William D. Forsyth, 1st Ohio Volunteer Cavalry, having been ordered before a board of examination for appointment as second lieutenant in the Regular Army, is hereby relieved of the command of Troop E. He will turn over the property, funds, and records of the troop to his successor.
II. 2d Lieut. Donn C. Mitchell, 1st Ohio Volunteer Cavalry, is hereby appointed to the command of Troop E. He will receipt to Lieut. Forsyth for the property and funds pertaining to the troop.
By order of Lieut. Col. Day.
(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:
Headquarters Fourth Army Corps
Camp Wheeler, Huntsville, Ala. September 2, 1898
Special Orders
No. 97.
* * * * *
II. It appearing from evidence that the following-named officers of the First Ohio Volunteer Cavalry have exercised the functions of commanders above that pertaining to the grades held by them from and after the dates set opposite their respective names, the assignment thereto contemplated by General Order No. 86, current series, Adjutant General’s Office, is confirmed, namely:
* * * *
2d Lieut. Donn C. Mitchell, as captain, from August 24th, 1898.
* * * *
By command of Major-General Coppinger:
(Signed) Clarence K. Edwards
Assistant Adjutant-General
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:
General Orders Headquarters of the Army
No. 86 Adjutant General’s Office
Washington, July 2, 1898
I. In § 7 of the act "For the Better Organization of the Line of the Army of the United States," approved April 26, 1898, it is provided "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 Attorney General has held that this clause "was intended to apply to all instances where the troops of the United States are assembled in separate bodies, such as regiments, brigades, divisions, or corps, for the purpose of carrying on and bringing to a conclusion the war with Spain," but that "all service in the Army at the present time is not to be considered as operating against an enemy," Troops and their officers on the western frontiers, performing the same service as garrisons which is requisite in time of peace, and in no wise considered a part of the Army assembled to carry on the war with Spain, would not be within the meaning of the act.
To entitle an officer to the pay of a grade above that actually held by him the assignment in orders under the clause cited must be by the written order of the commanding general in the field or the Secretary of War, and no pay or allowances of a higher grade than that actually held by an officer will be paid under this provision except when a certified copy, in duplicate, of such order, with statement of service, is filed with the paymaster. . . .
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:
To entitle an officer to the pay of a grade above that actually held by him under § 7 of the Act of Congress approved April 26, 1898, he must be assigned in orders issued by competent authority to a command appropriate to such higher grade of troops operating against the enemy.
Circ. No. 39, A.G.O., Sept. 27, 1898.
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.
III. 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, October 30, 1899, the pay of a captain for the entire period from August 26, 1898, to October 23, 1898.
IV. 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.
V. 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 at the rate due a second lieutenant, mounted, the amount due is $125.
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.