United States v. Engard, 196 U.S. 511 (1905)

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United States v. Engard

No. 136

Argued January 18, 1905
Decided February 20, 1905
196 U.S. 511

APPEAL FROM THE COURT OF CLAIMS

Syllabus

The Navy Department has no power to disregard the provisions of Rev.Stat. §§ 1556, 1571, and Pars. 1154, 1168, naval regulations and either deprive an officer of sea pay by assigning him to a duty mistakenly qualified as shore duty but which is in law sea duty, or to entitle him to receive sea pay by assigning him to duty which is essentially shore duty and mistakenly qualifying it as sea duty.

Where, however, the assignment of an officer to duty by the Navy Department expressly imposes upon him the continued discharge of his sea duties and qualifies the shore duty as merely temporary and ancillary to the regular sea duty, the presumption is that the shore duty is temporary, and does not operate to interfere with or discharge the officer from

the responsibilities of the sea duties to which he is regularly assigned, and he is entitled to sea pay during the time of such temporary shore duty.

Somewhat condensing the facts below found, they are as follows: in February, 1897, Chief Engineer Albert C. Engard was performing duty as the chief engineer of the United States receiving ship Richmond at League Island, Pennsylvania. On the eleventh of February, he received the following order from the Navy Department:

NAVY DEPARTMENT

Washington, February 11, 1897

Sir: Report by letter to the president of the Steel Inspection Board, Navy Yard, Washington, D.C., for temporary duty in connection with the inspection of steel tubes for the boilers of torpedo boat No. 11 at Findlay, Ohio, and at Shelby, Ohio.

You are authorized to perform such travel between League Island, Pa. and Findlay, Ohio, and between League Island, Pa. and Shelby, Ohio, as may be necessary in the performance of this duty.

Keep a memorandum of the travel so performed by you, certifying to its necessity, and submit the same to the Department, from time to time, for its approval.

This duty is in addition to your present duties.

Very respectfully,

W. McAdoo, Acting Secretary

Chief Engineer Albert C. Engard, U.S. Navy

U.S.R.S. Richmond, Navy Yard, League Island, Pa.

Complying with this order, Chief Engineer Engard made two round trips between League Island and Ohio in order to discharge the additional duty referred to in the order. The total number of days in which he was engaged in this work between February 24, 1897, and August 14, 1897, was 122. On the application to be allowed mileage for the trips amounting to $172.80, the auditor of the Navy Department deducted from the claim $133.70, and allowed only $39.10. The sum disallowed was deducted on the theory that the chief engineer was only entitled to be paid for shore duty, instead of for sea service, during the time referred to. This suit was brought to recover the amount of the deduction, and the right to so recover was sustained by the Court of Claims. 38 Ct.Cl. 712.