
    HENRY H. HUMPHREYS v. THE UNITED STATES.
    [No. 22789.
    Decided May 25, 1903.]
    
      On the Proofs.
    
    During the war with Spain a major is in command of the First Battalion of his regiment, the lieutenant-colonel being in command of the regiment. While so commanding the First Battalion he is assigned to command it by the corps commander.
    I.The Act 26th April, 1898 ( 30 Stat. L., p. 364, § 7), provides: “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 exercised.” This provision extends only to cases where such an order is necessary to impose the burden of the higher command upon the officer, and not to cases where a command temporarily devolves upon an officer without an order of assignment.
    II.The term “command” in the statute refers not to the commander, but to the commanded — to the body of troops which constitutes a command.
    III.It is the intent of the statute that the commanding officer shall assign officers to higher command only for the good of the service and the vigorous prosecution of the war. An assignment made merely to increase an officer’s pay is unauthorized.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Henry Ii. Humphreys, was on June 14, 1898, a major in the United States infantiy, having been in the service for more than twenty years, and was in said grade until his promotion to the grade of lieutenant-colonel on December 23, 1898.
    II. On June 14,1898, claimant was verbally assigned to the command of lieutenant-colonel of the Twelfth United States Infantry. Said verbal order was on August 4, 1898, confirmed by written orders as follows:
    “ Headquarters 3d Brigade, 2d Division,
    ‘ ‘ 5th Army Corps,
    
      “Near Santiago de Cuba, August fy, 1898.
    
    “ Special Orders, No. 14.
    “Pursuant to authority of the corps commander in indorsement dated July 18, 1898, the, following-named officers are assigned to the increased command indicated, and as of the dates opposite their respective names, viz:
    * . * * • # « *
    “Major H. H. Humphreys, 12th Infantry, command of lieut. col., commanding 1st Battalion: 12th Infantry since J une 14, 1898.
    -X- -X- -X- -X- -X- =¡: *
    “By command of Major-General Chaffee.
    “(Signed) , , J. T. ICerr,
    
      “1st Lieutenant, 17th Infantry, A. A. A. CL
    
    Under this order claimant exercised the command of lieutenant-colonel from June 14, 1898, to August 13, 1898, and was on August 13, 1898, assigned to the command of the Twelfth United States Infantry by Special Orders, No. 96, headquarters Fifth Army Corps, dated September 19, 1898.
    From July 14,1898, to August 13,1898, Lieut. Col. Richard Comba was in command of said regiment, and the duties of lieutenant-colonel were performed entirely by claimant during that time.
    III. Claimant was paid as a lieutenant-colonel for the period from June 14, 1898, to August 31, 1898, by a readjusted account in which he received the difference between the paj^ of major and the pay of a lieutenant-colonel, amounting, for the period from June 14 to August 31, 1898, to $106.94. From August 13, 1898, he was in command of the regiment, and upon a second readjustment he was paid the difference between the pay of a major and the pay of colonel from August 13 to August 31, 1898, effecting a double payment for the last-named period. Subsequently lie was compelled to refund the sum of $106.94 paid him as aforesaid.
    The difference between the pay of major and lieutenant-colonel for the period from June 14, 1898, to August 12, 1898. is $81.97, which is a portion of the amount refunded.
    
      Mr. GlarJe MoKercher for the claimant. Messrs. Geo. A. and William B. King were on the brief.
    
      Air. George AL Anderson (with whom was Air. Assistant Attorney-General Bradt) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

During the stormy vicissitudes of the civil war and in consequence of many hard-fought battles and appalling casualties it frequently happened that officers had to be assigned to commands above their rank. Such necessities of command may occur in any war. Early in the war with Spain Congress, by the Act 26th April, 1898 (30 Stat. L., p. 364, sec. 7), made this enactment:

“That in time of war every officer serving with troops operating against an enemy who shall exercise, under assign- • ment 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 exercised: Provided, That a rate of pay exceeding that of a brigadier-general shall not be paid in any case by reason of such assignment.”

This is a statute which must be interpreted by referring to the facts and circumstances which have existed in preceding “times of war,” and to the military usages which, unchanged, will continue to exist in subsequent wars. There always have been exigencies, such as battles and unexpected combinations, in which a body of troops is left or assembled without a designated commanding officer. In such cases the command devolves upon the officer highest in rank or senior in commission. It is his duty eo instanti to assume command. Such commands are temporary in their nature, continuing only as long as the circumstances may require. They do not need an order “ by competent authority” to create them or to dissolve them.

There are also in every army permanent organizations, such as regiments and companies. A regiment is the unit of an army, and a company is the unit of a regiment. Within these units the same principle prevails. If a colonel is wounded or assigned to other duty, the lieutenant-colonel assumes command; if the lieutenant-colonel is incapacitated, the senior major takes his place; if a captain is absent, his first lieutenant becomes commanding officer of the company; if the first lieutenant can not act, the second lieutenant assumes command. Conversely, when the colonel returns to the regiment the lieutenant-colonel ceases to command; when the captain is again present for duty the lieutenant no longer acts as captain. Moreover, the duties of these officers extend beyond the assemblage of troops for battle or drill or parade to the business of the army — to the procurement and distribution of subsistence, of clothing, of pay, of camp equipage, of arms, ammunition, and hospital supplies, of horses, forage, and transportation. But in none of these cases is an “ assignment in order’s issued by competent authority ” necessary. These additional duties are neither honors nor burdens placed upon the officers b3r competent authority; they are the ordinary incidental duties of military official life which go with each officer’s commission.

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 necessaiy to impose the burden of the higher command upon an officer. Where a colonel is assigned to the command-of a brigade, or where a lieutenant-colonel is assigned to the command of another regiment than his own, there will be a case coming within the intent of the statute.

It is also to be said that the term “command” in the statute refers not to the commander but to the commanded — not to rank or grade or the giving of orders, but to organized bodies of troops whose commanding- officers have a certain rate of pay regulated by law. The command of a brigadier is his brigade; the command of a colonel is his regiment; the command of a captain is his company. A lieutenant-colonel has no command; that is to say, he commands no integral part of a regiment. The commanders of companies do not report to the commanders of battalions, but direct to the regimental headquarters. The term “battalion” is merely tactical, and the assignment of command to field officers is merely to designate their places in the field. When a regiment is not in line of battle a lieutenant-colonel or major has neither command nor designated official duties as such.

It seems manifest to the court that the order of the corps commander, which is the basis of this case, was not issued for the purpose of assigning the claimant to the command of the designated battalion of his regiment, but for the purpose of securing to him the pay of a lieutenant-colonel. When the order was issued, in August, 1898, the claimant had been for some time in command of the battalion. This action of the commanding general was unauthorized by law. It was not within the province of his duties and responsibilities to put up one officer’s pay or to keep another’s down. What the law contemplated his doing was to make necessary and not gratuitous assignments, and only such as would be for the good of the service and the vigorous prosecution of the war, leaving the matter of pay — which was.but an incident of an assignment — to those officers of the Government to whose charge and responsibility it is committed by law.

The judgment of the court is that the petition be dismissed.  