
    SPENCER N. PHILLIPS v. THE UNITED STATES.
    [No. 30693.
    Decided February 19, 1912.]
    
      On the Proofs.
    
    This case differs from tile preceding one, Brady’s, in this, that there an enlisted man was detailed for special duty as troop clerk by the commanding officer of the froop, while here he was detailed on general recruiting duty under a regular recruiting warrant issued by the brigadier general, commandant of the Marine Corps. The question in the two eases is the same; whether the claimant was entitled to “ extra-duty ” pay under the Revised Statutes (§ 1287) and the amendatory acts.
    I.An enlisted man in .the Marine Corps detached from his company and placed upon recruiting duty under the authority of the Act 2d February, 1901 (31 Stat. Tj., p. 7'56), is not entitled to “extra-duty” pay under Revised Statutes (§ 1287) and acts amendatory thereof. The statutes relating to the recruiting service reviewed.
    II.Section 1235 of the Revised Statutes is intended to prevent doubts and surmises by providing that working parties of soldiers shall he detached “ only upon the written order of a commanding officer and when sueh duty is for ten or more days.” The fact that an order detailing an enlisted man for recruiting duty is in writing can not be considered a detail detaching Mm for employment as a clerk within the intent of the statute.
    III.The unvarying custom of both the Army and the Marine Corps in not allowing extra-duty pay for privates detailed for the recruiting service must be regarded as a departmental construction which should not be overruled by the court except for the most cogent reasons.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. Claimant is a citizen of the United States, and on October 19,1903, enlisted in the United States Marine Corps as a private, and has continued in such service until the present time.
    II. He was detailed by regular recruiting warrant on recruiting duty during the following periods (Sundays included) : August 9, 1905, to December 23, 1906; December 31, 1906, to April 1, 1901; April 3, 1907, to May 29, 1907; a total of 651 clays.
    III. Section 985 of the Navy Regulations (1905) provides that—
    “(1) The regulations for the recruiting service of the Army shall be applied to the recruiting service of the Marine Corps as far as practicable.”
    The Army Regulations of 1904, with reference to recruiting service, provides as follows:
    “ 852. The recruiting officer in charge of each city station of the recruiting service, having first satisfied himself of the soldier’s fitness for the positions, will announce in orders from his station, and muster from the date of such announcement, one member of his recruiting party as sergeant and one as corporal 4 of the arm of the service to which they respectively belong.’ Such orders will be entered in the records of the recruiting station and a copy of each order will be forwarded to The Military Secretary’s office (recruiting division) ; a copy ivill also be furnished to each soldier concerned.
    44 854. Members of recruiting parties announced and mustered as sergeants or corporals will not be renduoed while performing such duty without the approval of The Military Secretary of the Army. Their appointments as sergeants or corporals will, however, terminate whenever they are relieved from recruiting duty, or when the stations at which they are serving are discontinued, unless they shall be assigned to other recruiting stations at which there are vacancies in their respective grades. The recruiting officer will in every case announce in orders the date of the termination of an appointment as sergeant or corporal and furnish copies of each order, as indicated in paragraph 852.
    44 855. All transfers of enlisted men to the recruiting service for duty on recruiting parties ivill be as privates, the question of their promotion as sergeants or corporals being for determination after'their fitn'ess and capacity shall have been demonstrated. Individual applications for such transfers will be forwarded, whenever practicable, through the proper commanding officers, who will indorse thereon their recommendations, based upon service and merit, and also a statement of the soldiers’ fitness for recruiting duty, especially as regards clerical ability and knowledge of Army papers. The transfers will be made from time to time, as the interests of the service require, in orders from the War Department.”
    The two following sections from the Regulations of the Marine Corps, which were approved by the Secretary of the Navy March 31, 1904, read:
    44 446. Enlisted men detailed by name on extra duty under the written authority of the commandant of the corps, at constant labor for not less than 10 days are entitled, in time of peace, to receive extra-duty pay at the following rates: For services as mechanics, artisans, and school-teachers, 50 cents per day; as overseers, .teamsters, laborers, and all other extra-duty services, 35 cents a day. * * *
    44 447. Soldiers on extra duty will be paid the extra rates of pay allowed by law for the duty performed and for the exact number of days employed; and no greater number of men will be employed on extra duty at any time than can be paid the full legal rates for the time employed from the funds provided. Payments made in violation of the above rules will be charged against the officers who ordered the details.”
    Under the aboise paragraphs, to entitle an enlisted man of the Marine Corps to extra-duty pay he must be detailed on extra duty under the written authority of the commandant of the corps.
    
    By section 31 of the act of February 2, 1901 (31 Stat. L., 756), it was provided:
    “That the Secretary of War is authorized to detach from the Army at large such number of enlisted men as may be necessary to perform duty at the various recruiting stations, and while performing such duty one member of each party shall have the rank, pay, and allowances of sergeant and one the rank, pay, and allowances of corporal of the arm of the service to which they respectively belong.”
    Section 1235 of the Revised Statutes provides that—
    “ Working parties of soldiers shall be detailed for employment as artificers or laborers, in the construction of permanent military works or public roads, or in other constant labor, only upon the written order of a commanding officer, when such detail is for 10 or more days.”
    IV. Pursuant to the said act and regulations claimant was detailed to recruiting duty under a regular recruiting warrant issued by the brigadier general commandant, dated. January 10, 1906, and thereupon promoted to the rank and pay of corporal; his first duty under recruiting detail was by a regular written order by the commanding officer at Philadelphia, Pa., dated August 8, 1905, issued to Sergt. John Shepherd, under which written order claimant proceeded to the recruiting station at Cincinnati, Ohio, and reported to the lieutenant in charge; his name was carried upon the muster rolls as “ on duty ” at the recruiting stations at Cincinnati and Atlanta during the time for which claim is made; on April 3, 1907, he was promoted to the rank and pay of sergeant while on recruiting duty at Atlanta.
    
      V.-While stationed in the barracks at Philadelphia, claimant was sent to the recruiting office at Cincinnati, where he reported to First Lieut. D. W. Blake, who, alter satisfying himself as to claimant’s ability as a clerk, assigned him by oral order to the following duties, which claimant performed: Preparing pay rolls, muster rolls, medical abstracts, vouchers, transportation requests, preparing letters for the signature of the recruiting officer both to the headquarters of the Marine Corps and to the different substations, making out enlistment papers, descriptive books, contracts for rent, laundry service, board and lodging of recruits, reports on public property, opening letters received, preparing clothing-account rolls, etc.
    YI. Section 853 of the Army Regulations of 1904 provides that:
    “Members of recruiting parties will be regarded as belonging to the arm of the service for which they last enlisted or from which they were transferred to the general recruiting service. Any member of a party who may have been enlisted for the general service without choice or designation of a particular arm of the service, will be mustered as an infantry soldier if enlisted for the foot service or as a cavalry soldier if enlisted for the mounted service.”
    While serving at the aforesaid recruiting stations claimant was on detached duty and had no military equipment other than the regulation uniform; all recruits mustered in at the recruiting stations to which claimant was detailed were for the military service generally, and the duties performed by claimant were for the' benefit of the service at large.
    VII. The duties performed by claimant incident to his detail to the recruiting service were of a strictly military character and the consideration, if such was necessary on account of the peculiar nature of the work performed, was to be found in the relief from the ordinary military duties as well as a promotion in grade and increased pay received in consequence of his detail to the recruiting service.
    VIII. The Adjutant General of the Army, in a letter to the Auditor for the Navy Department, under date of September 29, 1910, states that “ * * * I have the honor to inform, you that no enlisted men of the Army receive any extra-duty pay for duty with recruiting parties at general recruiting stations.”
    
      Mr. Harry F. Lereh for the claimant.
    
      Mr. P. M. Gota (with whom was Mr. Assistant Attorney General Thompson) for the defendants.
   AteiNsoN, J.,

delivered the .opinion of the court.

This is a suit for $227.86 brought by Spencer N. Phillips, who during the time mentioned in his petition was a private in the United States Marine Corps. It is claimed by plaintiff that for 651 days, between August 9, 1805, and May 29, 1907, he served as a clerk while on recruiting service for the Marine Corps, and because of such service with recruiting parties he is entitled to 35 cents per day extra compensation.

Reliance is placed upon section 1287 of the Revised Statutes and the act of July 5, 1884 (23 Stats., 110), to sustain the claim of plaintiff. Said section reads as follows:

“When soldiers are detailed for employment as artificers or laborers in the construction of permanent military works, public roads, or other constant labor of not less than 10 days’ duration, they shall receive, in addition to their regular pay, the following compensation: Privates working as artificers, and noncommissioned officers employed as overseers of such work, not exceeding 1 overseer for 20 men, 35 cents per day, and privates employed as laborers, 20 cents per day. This allowance of extra pay shall not apply to the troops of the Ordnance Department.”

The act of July 5, 1884, supra, is in the following lan-gauge:

“ That $250,000 of this sum, or as much of it as shall be necessary, shall be set aside for the payment of enlisted men on extra duty at constant labor of not less than 10 days, and such extra-duty pay hereafter shall be at the rate of 50 cents per day for mechanics, artisans, school teachers, and clerks at Army, division, and department headquarters, and 35 cents per day for other clerks, teamsters, laborers, and others.”

Section 1612 of the Revised Statutes reads:

(Pay of Marine Corps.) “The officers of the Marine Corps shall be entitled to receive same pay and allowances, and the enlisted men shall be entitled to receive the same pay and bounty for reenlisting as are or may be provided by or in pursuance of law for the officers and enlisted men of the grades in the Infantry of the Army.”

Section 1285 of the Revised Statutes provides that:

“ Working parties of soldiers shall be detailed for employment as artificers or laborers, in the construction of permanent military works or public roads, or in other constant labor only upon the written order of a commanding officer, when such detail is for 10 or more days.”

The question to be determined is, Was the plaintiff detailed as a “clerk” within the meaning of the law? It is shown that he was detached from his company and placed upon recruiting service by proper procedure under the authority of the act of February 2, 1901 (31 Stats., 156), which reads:

“That the Secretary of War is authorized to detach from the Army at large such number of enlisted men as may be necessary to perform duty at the various recruiting stations, and while performing such duty one member of each party shall have the rank, pay, and allowances of sergeant and one the rank, pay, and allowances of- corporal of the arm of the service to which they respectively belong.”

This act organizing the recruiting service makes no mention of extra-duty pay other than that of the promotion of two of the members of each party to the noncommissioned rank of sergeant and corporal. The custom of the service (Finding VIII) has invariably been not to pay any member of a recruiting party any additional compensation.

Recruiting duty is an agreeable and attractive assignment, and the requisite qualifications are placed upon a high plane, so that only the most intelligent and those of soldierly bearing may secure such designation. That this service is purely military must be conceded. It is the recruiting parties that keep the military organization to which they belong intact and cause it to be maintained on a high standard of efficiency by securing young men to enlist in the military service. It can not be said that this effort to bring to the Army the youth of the Nation is less “ military” than is the necessary but less martial position of company cook or regimental baker. All of these functions are essential to the maintenance and welfare of an army.

The Congress, in its supervision of the Nation’s Treasury, has aimed to be just in its allowances to the military arms of the Government. It demands of the soldiers a willing discharge of their military duties without additional reward other than their prescribed compensations. In its fairness to the Army and Navy it has authorized additional or extra-duty pay for services of extraordinary or nonmilitary character. It provides in the laws governing such bodies that when soldiers are detailed for extra duty as clerks, teamsters, laborers, etc., they shall be paid an additional wage of 35 cents per day. But while so doing the Congress carefully protects the Treasury of the Nation by prescribing specifically the method to be pursued to bring the soldier within the zone of extra-duty pay. Not every soldier who renders a service slightly nonmilitary is within the reach of extra-duty pay. In such a vast organization as the country’s military there would be constant turmoil over determinations of character of duties had not the Congress anticipated it by distinctive legislation; and this, in our judgment, has been done by the enactment of section 1235 of the Revised Statutes, which clearly wipes away surmises that might arise from indefinite designation when it says:

“Working parties of soldiers shall be detached for employment as artificers or laborers, in the construction of permanent military works or public roads, or in other constant labor only upon written order of a commanding officer when such duty is for 10 or more days.”

The safeguard is here seen and the fixing of responsibility therefor is specific.

In the case at bar it does not appear that the plaintiff was ever giyen any written order from any commanding officer having authority under the law so to do assigning him to extra duty as a clerk, and the muster roll of his company does not show any assignment as on extra duty as clerk, but it does show him as on duty at recruiting offices in Cincinnati, Ohio, and Augusta, Ga.

In the act of April 19, 1910 (36 Stats., 312, 324), it is specifically provided that in all cases thereafter arising, per-taming to the dates of the enlistments of the volunteer forces, the decisions of the War Department shall be conclusive.

While the above act relates only to the War Department and binds the courts to accept its official records as final as to the dates of the enlistments of volunteers, yet it is persuasive, although not binding, that the records of the Marine Corps should likewise be regarded as conclusive. But this is not all. The findings show that it has been the unvarying custom of both the Army and the Marine Corps to not allow extra-duty pay for privates detailed for the recruiting service. As we have hitherto stated, the only additional compensation allowed to them is the increased pay of corporals and sergeants, which ranks are given them by the act of 1901, supra, while on recruiting service, and this act is not superseded by the acts granting extra pay for extra duty. Both this court and the Supreme Court have frequently decided that departmental constructions of long standing should not be overruled by the courts except for the most cogent reasons. (Sweet v. United States, 34 C. Cls., 377, 387; United States v. Johnson, 124 U. S., 377, 387, and cases there cited.) In the case we are considering it is not shown that plaintiff was assigned to extra duty as a clerk, nor is it shown by the muster rolls of his company that he, during his absence from his regular command, was assigned to or engaged in clerical work at recruiting stations. It is not denied, however, that he did clerical work while absent from his command, but it is denied that he was assigned by a written order to such duty, which fact is established by the records of the Marine Corps and the muster rolls of his company. He, therefore, does not come within the provisions of the act of July 5, 1884, the act of February 2, 1901, supra, or section 1287 of the Bevised Statutes.

Much stress is laid by jilaintiff upon the fact that the order detailing him for recruiting service was in writing. While tlris is true, yet it is shown by Finding IY that this written order was a regular form of detail for recruiting service only and not one designating him as a clerk. Under said written order he proceeded from Philadelphia to Cincinnati, and after he had reported to the recruiting officer, as shown in Finding V, he was examined by this officer as to his qualifications for clerical duties in the recruiting service. Subsequent to this examination he was assigned to clerical work, but no claim is made that the assignment was in writing, as required by the statute and the Army and Marine Corps regulations, but, on the contrary, it is shown by the findings that the order was a mere oral direction or command. We do not raise the question as to the authority of the recruiting officer to make the written order required by statute, because it does not appear that plaintiff claims that this officer made such an order.

In the case of Holthaus v. United States, decided May 6, 1907, the court held that where a private of the Marine Corps was detailed orally by an authorized commanding officer to act as clerk and was carried on the muster roll as “ clerk,” which roll the detailing officer was required by law to examine and certify, and which he did examine and approve, he was entitled to receive the extra-duty pay provided by statute for soldiers acting as clerks upon written orders from the commanding officers. It is clearly shown, therefore, that the court in that case considered the question whether or not the claimant was acting under a written order as a clerk, as shown by the muster rolls of his company, and, deciding that he was, granted him extra pay.

In this case, however, we find that the plaintiff was not acting as “ clerk ” upon any proper written authority, and are sustained in this conclusion by an official letter of the Adjutant General of the Army addressed to the Auditor for the Navy Department (Finding VIII) under date of September 29, 1910, wherein he says that * * * “no enlisted men of the Army receive any extra-duty pay for duty with recruiting parties at general recruiting stations.”

From what we have stated above we are of the opinion that the Congress intended only to grant extra-duty pay in exceptional cases and clearly prescribed the procedure to be followed in placing soldiers within the restricted sphere of extra compensation for services rendered by them to the Nation.

Our conclusion is that the plaintiff can not recover, and his petition is accordingly dismissed.  