
    WILLIAMSON’S CASE.
    (9 Court of Claims R., 503;
    — Wallace R., —.)
    Samuel C. Williamson, appellee, v. The United States, appellants.
    
      On the defendants1 Appeal.
    
    
      A general order for the consolidation of certain regiments allows my officer assigned to duty, i. e., retained in the service, to elect to he placed on waiting orders. A captain assigned to duty so elects. He is, “at his request, relieved from duty in this department, and will proceed to his home and await orders, reporting thence hy letter to the Adjutant-General,” &c. Subsequently he is mustered out of the service. While awaiting orders he is paid only “ half pay,” on the ground that he is “ absent from duty with leave,” within the meaning of the Act March 3, 1863, (12 St at. I*.,p. 731.) He brings his 
      
      suit for pay ‘Withheld. The court helow,for the purposes of an appeal, renders judgment pro forma in his favor. The defendants appeal.
    
    The Act March 3, 1863, (12 Stat. L., 731,) -which provides that “ any officer ■ absent from duty with leave, except from sichness or wounds, shall, during his absence, receive half of the pay and allowances prescribed by law, and no more,” does not extend to an officer ordered to proceed to his home and there await orders, though this order was issued at his own request. An officer “ absent with leave” is at liberty to go where he will; an officer ordered to a particular place, there to “ aioait orders,” must remain in that place and continue as much under orders as though assigned to any ordinary military duty.
    
      The Reporters’ statement of the case:
    No opinion whs read in the court below, and there being a large number of similar cases in which the Government had the exclusive right of appeal, a judgment pro forma was rendered in this, which was then carried up as a test case. The facts found below fully appear in the opinion of the Supreme Court.
    
      Mr. Attorney-General Williams and Mr. Assistant Attorney-General Goforth for the United States, appellants:
    The claimant, after the consolidation of the Forty-second Beg-iment with the Sixth, was regularly assigned captain of Company H, in the Sixth consolidated Begiment, and joined his company, and was afterward regularly transferred to Company A of the same regiment, thus having an opportunity to perform military service under the changes and consolidations of regiments made necessary by the Act March 3,1869. (15 Stat. L., 318.) He did not join Company A, but requested to be placed on waiting orders, in accordance with paragraph 3, General Order No. 17“But should any of the officers so assigned prefer to await orders.”
    The Adjutant-General responded that Captain Williamson “is, at his request, relieved from duty, * * * and will
    proceed to his home and await orders,” &c. It was therefore at his own request that the claimant was relieved from duty, i. e., from command of a company in the Sixth Begiment. of Infantry, and from that time was absent from duty, ceasing to perform any military service or to actively exercise the functions or authority of an officer of the Army of the United States up to December 31,1870, the date when he was mustered out of service. The Act March 3,1863, (12 Stat. L., 731,) provides “ that any officer absent from duty with leave, except for sickness or wounds, shall, during his absence, receive half of the pay and allowances prescribed by law, and no more.”
    Captain Williamson was absent from duty with leave, being neither sick nor wounded whether he technically asked for a leave of absence eo nomine, or whether within the spirit of the law he elected to be placed on waiting orders. The act itself merely says, u absent from duty with leave;” not necessarily by means of “a leave of absence/’ so called, but absent from duty with leave, howsoever that absence from duty had been accomplished, if according to law and the regulations. There can be but two classes of officers under th is head: those who are actively performing military duties, i. e., in charge of some military business, and those from whom all functions of a military character are withheld by the operation of absence from duty. There was an officer placed in command of a company of infantry, i. e., ordered to the performance of military service, who elects or asks to be placed on waiting orders, i. e., to be absent from all such duties, and then demands the same pay and allowances when'his request is acceded to thathe would havereceived when actually and actively on duty. The Act March 3,1863, says that he shall ree'eive “ but half of the pay and allowances prescribed by law and no more,” and, as he has received these, he has no further claim on the United States.
    
      Mr. Halbert J3. Paine for the claimant, appellee:
    No casehasbeen decided by the Supreme Court of the United States involving the question whether, by virtue of constitutional power, and,in the absence of statutory authority, the executive department could establish the rate of compensation of officers of the Army. Nor has this court decided a case involving the question whether, in the presence of and in opposition to provisions of the statute, the executive department can, by virtue of purely constitutional power, reduce the rate of compensation fixed by statute.
    In the case of Hliason v. The United States (16 Pet.,'291) the facts were these: The War Department had provided, in the regulations of 1825, which' were made in pursuance of the provisions of the Acts March 3, 1813, and April 24, 1816, already quoted, that officers should receive certain extra com-. pensation for extra services. By a regulation which was made in 1835, by virtue and in pursuance of the same provisions of the statutes of March 3,1813, and April 24, 1816, the War Department had abolished this extra compensation, for the alleged reason that it had been interdicted by a recent act of Congress.’ The representatives of Eliason claimed the extra allowance, and the questions were whether the act of Congress' did prohibit the extra compensation after the expiration of the session of Congress, and whether the War Department, under the Acts March 3, 1813, and April 24,1816, had authority to abolish an allowance which the War Department itself had established. This second question, which alone is material to the present case, was decided in the affirmative.
    The claim had been disallowed by the War Department, on the ground that the proviso of a certain harbor bill, approved March 3,1835, prohibited the allowance of extra compensation to officers of the Army, which prohibition had been construed by the Attorney-General to be general, covering all cases not provided for by law. A general order was made withholding such extra compensation in all cases. It was insisted, in answer, that the proviso was not of general application, but only applied to the disbursement of public moneys during the session of Congress in which the act was passed. To this it was replied that, whether the proviso was of general application or not, the new regulation or' order of the War Department of March 13,1835, refusing such extra compensation, was valid. And this latter position was sustained, on appeal, by the Supreme Court of the United States.
    No authority to withhold from the appellee in this case any part of the compensation fixed by the Acts March 16,1802, April 24, 1816, March 2, 1827, July 5,1838, and February 21, 1857, was conferred by the Act March 3,1863, relating to officers absent with leave, on which the decision of the Pay Department was based. Nor was such authority conferred by any other act of Congress.
    The order which required the appellee to proceed to his home and await orders and the “leave of absence” differ from each other in their essential qualities, at all stages, from their • inception to tbeir termination. They differ in respect of the power and duty of the superior officer to issue them and the course of procedure prescribed for him by law, and also in respect of the preliminary steps required of the inferior officer who receives them. While they remain in operation, they differ as to the rights, privileges, and duties of the subordinate officer; and they differ in respect of the authority, means, and methods by which they are terminated.
    The nature of the leave of absence is clearly defined and fixed by law. By the Act July 28,1866, the Army Regulations, published in 1863, were made the law of the land. They were the law of the land during the whole period of time which intervened between the day when the appellee was ordered to proceed to his home to await orders and the day when he was mustered out of the service of the United States. The characteristics of the leave of absence are fixed by article 21 (pp. 31, 32, 33) of the Army Regulations of 1863, in force as law in 1869 and at the present time. The mode of application for leave of absence is clearly marked out. The authority to grant leaves of absence in certain cases is distinctly vested in particular officers. The maximum duration of a leave of absence is clearly prescribed. The requisites for extension are clearly laid down. An end as well as .a beginning is made essential to the leave of absence. A department commander is forbidden to grant a leave of absence exceeding sixty days. Applications for leave of absence exceeding four months are required to be referred to the Adjutant-General for the decision of the Secretary of War. And even the War Department itself is prohibited from granting leaves of absence to officers on applications made out of the military channel.
    The order requiring an officer to proceed home and await orders is nowhere specifically defined or authorized by the reg- ■ ulations or by statute,’ nor is the status of an officer ordered to proceed to his home and await orders prescribed or defined, or his pay expressly fixed, anywhere in the statute or in the regulations, except in section 1265, chapter 3, title NIV, of the Revised Statutes of the United States, approved June 22,1874, after the appellee was mustered out of the Army, which section relates to the Army, and is in these words:
    “ Sec. 1265. Officers, when absent on account of sickness or wounds, or lawfully absent from duty and waiting orders, shall 
      
      receive full pay; when absent with leave, for other causes, full pay during such absence, not exceeding in the aggregate thirty days in one year, and half pay during such absence exceeding thirty days in one year. When absent without leave, they shall forfeit all pay during such absence, unless the absence is excused as unavoidable.”
    The right of the President and General of the Army to order officers to proceed to their homes to await orders is, like the right to issue most other orders, incident to their general authority over the Army. The General of the Army has the same legal right to order an officer to proceed to a designated point and await further orders which he has to order him to proceed to a designated point and await the enemy, or to proceed to a designated point and await some uncertain future event. The derivation of the right is the same in each case. It is the duty of the office to obey all lawful orders of his superior in command. On this ground, and on no other, rests his obligation to obey an order to proceed to his home and await orders. This duty is as obligatory as any other. It is properly said that the appropriate command for a captain is a company; for a colonel, a regiment; for a brigadier-general, two regiments. For all this is fixed by arti-1353 of the regulations of 1863, which is a part of the law of the codntry. But it cannot be said that the duty of a captain to command a company, or of a colonel to command a regiment, is of any stronger obligation than his duty to serve on a court-martial in obedience to orders, or on a flag of truce, or a commission of surrender, or to await an enemy in obedience to orders at one point, or a future event at another, or an order of his superior officer at another. And, so far as the duty of obedience is concerned, it is of course quite immaterial whether an inferior officer does or does not assent in advance to an order of his superior.
    There is a fundamental difference of nature between a leave of absence and an order to proceed home to await orders, which of itself would exclude the construction of the Pay Department, placing the appellee in the position of an officer virtually absent on leave. The leave of absence, from its inception, to the time when it expires by its own limitation, rests upon permission, not compulsion. Until such expiration, the control of the officer over the duration of his absence is altogether free andun-restrained. At the outset, having received his leave of absence, he goes from his post in the Army, or, surrendering his'leave of absence, remains at his post, as he sees fit; and having left his place, he remains absent until the expiration of his leave, or returns before its expiration, as he sees fit. But with the order to proceed home to await orders all this is essentially different. When the order is issued, whether with or without his consent, the officer is compelled to proceed to his home. He has no discretion in the case. He is not permitted, but commanded to go, So he is not permitted, but commanded to remain absent. He is not permitted to return at his pleasure, but he is compelled to remain absent until ordered to return.
    An order to proceed home to await orders may be lawfully issued with or without a previous consent or application of the officer so ordered. It is issued at the pleasure of the proper officer, by the same authority and in the same manner as other lawful orders are issued. But the leave of absence is issued on application only. In the nature of the case there can be no leave of absence without the consent of the officer concerned. The application for leave of absence must reach the commanding officer through clearly-defined military channels and in clearly-defined modes. But a.request to be ordered home to await orders, if made at all, must take the course of requests for orders of any other kind. The power to grant leaves of absénce in certain cases is specifically vested, by regulations having the force of law, in particular military officers and authorities. The power to issue an order commanding an officer to proceed to his home and await orders springs from the same grant in which originates the power to issue the great mass of orders to the Army. The officer who is absent on leave rests under no compulsion, except to return at its expiration. His absence up to the time of the expiration of his leave is, as to its duration, wholly voluntary and without restraint. He can return at any time before his leave expires. But the officer who is ordered home to await orders is not required or permitted to return at a particular time specified in the order. Nor is his absence subject to his own discretion; but it is compulsory, and subject to the control of the superior officer. • A return from his home, without further orders, would be a violation of orders — a military offense, liable to punishment under military law. The leave of absence terminates either when it expires by its own limitation or when the officer chooses to surrender it and return to his place in the Army. But the operation of the order to proceed home and await orders terminates when the superior officer chooses to issue further orders, and not before.
    While the department commander is forbidden to grant leaves of absence exceeding sixty days in duration, (Beg. 177,) he is subject. to no such restriction when, by authority of the War Department, he orders an officer to proceed to his home and await orders. In the case before the court not only was the limit of sixty days wanting, but there was absolutely no limit at all prescribed by the department commander who issued the order or by any other officer.
    There are most cogent reasons why, under the circumstances, this order to proceed home and await orders ought not to have been treated as a virtual leave of absence, even if it had been within the discretion of the Secretary of War or Paymaster General so to treat it.
    By perverting an order to proceed home and await orders into a virtual leave of absence, it would be in the power of the War Department arbitrarily and absolutely to change the status of the officer for an indefinite period»of time, and virtually to nullify wise provisions of the law enacted for the security of the rights of the individual officer as well as for the general stability and good order of the service. For example, in this case, if the appellee was absent on leave, he had a right to return to duty, not only at the expiration of his leave, but whenever he chose to surrender his leave. But as a matter of fact, the appellee, under the order to proceed to his home and await orders, had no such power. He was expressly forbidden by the second subdivision of General Order No. 17 even to ask permission to return to- his place and duties. If the construction of the War Department is correct, he was to be visited with all the disabilities of a leave of absence, and at the same time robbed of all its rights and privileges. And he might have been kept by the Secretary of War or Paymaster General hanging by the eyelids for ten years between a leave of absence and an order to proceed home to await orders. If he should ask for pay, the answer would be that he was on leave of absence, and must accept half pay. If he should ask for work, the answer would be that he was at home awaiting orders, under an order which prohibited him from even asking for work. If he should propose to surrender his virtual leave of absence, he would be told that he had no leave of absence to surrender, but was awaiting orders. If he should inquire when his “virtual leave of absence” would terminate, he would be told that he would learn something on the subject when the orders which' he was awaiting should reach him, or when he should be mustered out of the service, in two or ten or twenty years, as the case, might be.
    The construction adopted by the Pay Department was ex post facto in its origin and character. The appellee had no notice that the third section of the first subdivision of General Order No. 17 was to be a snare for him. The words of the section are—
    “3. The company officers will be assigned, as directed in General Orders No. 16, from the senior officers present and fit for active service,. with any two regiments consolidated. But should any of the officers so assigned prefer to ‘ await orders,’ the senior officers of the same grade desiring service with their regiments may be substituted for them. The officers in excess, including field officers not herein or otherwise assigned, will be ordered by the department commanders to their homes, and will report their address monthly, according to the regulations, as ‘ awaiting orders.’ ”
    The appellee did not ask for a leave of absence. He would not have accepted, and. could not have been compelled to accept, such leave. There was nothing in the text of this order No. 17, or in the law or regulations, or in the previous usage of the War Department, to warn him that if he should, with his own consent, be ordered to proceed to his home to await orders, he might afterward be treated as absent on leave. Of course nothing in the Act March 3, 1869, conferred upon the Secretary of War any new or special authority relating to officers on leave of absence or awaiting orders.
    If an officer should be ordered, with his own consent, to proceed to a designated point and await either the enemy or an uncertain future event, it would be no more unjust to treat such officer as virtually on leave of absence, and therefore entitled to only half pay because he assented to the order, than it would be to treat the appellee as virtually on leave of absence in the present case because he assented to be ordered to proceed to his home to await orders. It would manifestly be unjust so to ensnare officers into a position the consequences of which they could not foresee.
   Mr. Justice Hunt

delivered the opinion of the court:

The claimant was commissioned captain Forty-second' Infantry, to rank from January 22,1867, and served as captain in that regiment until it was consolidated with the Sixth Infantry by General Orders Nos. 16 and 17, series of 1869, from headquarters of the Army.

General Order No. 16 was issued in compliance with the second section of the Act March 3, 1869, (15 Stat. L., 318,) by which the infantry regiments were required to be consolidated, and the whole number reduced to twenty-five regiments.

This order, after requiring the consolidation of infantry regiments as directed in the act of Congress, further directs that the senior company officers of each grade present for duty with any two regiments to be consolidated, and fit for active service, will be the officers of the consolidated regiment. The supernumerary officers will be ordered to their homes to await further orders.

It is further provided in Order No. 16 that all vacancies that may hereafter occur in the twenty-five infantry regiments will be filled by assignment of the senior officers of the same grade from the list of officers awaiting orders.

General Order No. 17 provides that the company officers will be assigned, as directed in General Order No. 16, from the senior officers present and fit for active service with any two regiments consolidated; but should any of the officers so assigned prefer “ to await orders,” the senior officers of the grade desiring service with their regiments may be substituted for them.

After the consolidation of the Forty-second Regiment with the Sixth, the claimant was, on the 22d of April, 1869, regularly assigned captain of Company H in the Sixth consolidated regiment, and on the 20th of May following he joined his company, H. On the 29th of the same month he was regularly transferred from Company H to Company A, vice Capt. C. M. Bailey, unfit for active service.

It does not appear that the claimant ever joined Company A, to which he was transferred. Soon after his transfer he addressed the following note to the Adjutant-General:

“Fort Gibson, Cherokee Nation,
May 3, 1869.
“ Sir : I have the liouor, iu accordance with par. 3, General Order No. 17, current series, headquarters of the Army, to elect to be placed on waiting orders.
“ I am, sir, very respectfully, your obedient servant,
« S. 0. WILLIAMSON,
Ocvpt. Sixth Infantry, late Ga§t. Forty-second Infantry.
“Assistant Adjutant-General,
Headquarters Department of the Missouri,
“ Fort Leavenworth, Kansas.”

On the 21st of June, 1869, the Adjutant-General responded to the claim,ant’s request as follows: “ By authority of the General of the Army, Capt. S. G. Williamson, Sixth United States Infantry, is, at his request, relieved from duty in this department, and will proceed to his home and await orders, reporting thence by letter to the Adjutant-General of the Army and to these headquarters.”

The claimant was mustered out of service on the 31st of December, 1870.

From the 15th of December, 1869, to the 31st December, 1870, he was paid $991.67, which was less than full pay by $690.11, but he claims only $680.11.

The action in the Court of Claims was brought to recover this balance. The court awarded to him the amount claimed, and the United States appeal to this court. ■

The argument against the allowance of full pay is based upon the Act MarohS, 1863, (12 Stat. L., 731,) which provides “that any officer absent from duty with leave, except from sickness or wounds, shall, during his absence, receive half of the pay and allowances prescribed by law, and no more.” Captain Williamson, it is said, was, during the period in question, absent from duty with leave, being neither sick nor wounded, and hence, it is said, can receive but half pay, however that absence might have been caused. This argument is unsound.

The distinction between the case of an officer “ absent from duty with leave ” and that of an officer ordered to proceed to a particular place and there “ to await orders, reporting thence by letter to the Adjutant-General of the Army and to these headquarters,” is too plain to require much comment.

While absent from duty “ with leave,” the officer is at liberty to go where he will during the permitted absence, to employ his time as he pleases, and to surrender his leave if he chooses. • If he reports himself at the expiration of his leave, it is all that can be asked of him.

The obligations of an officer directed to p roceed to a place specified, there to await orders, are quite different. It is his duty to go to that place and to remain at that place. He cannot go elsewhere; he cannotreturn until ordered. He is as much under orders, and can no more question the duty of obedience than if ordered to an ambush to lie in wait for the enemy, to march to the front by a particular direction, or to the rear by a specified time.

The authority to give leave of absence is committed by law to particular persons. The mode of making the application for leave is pointed out, and the maximum of its duration is prescribed. (Army Reg., 1863, art. 21, adopted by the Act July 28, 1866.) A department commander can grant leave of absence for a p'eriod not exceeding sixty days. Applications for leave exceeding four months must be referred to the War Department.. '

The direction, on the other hand, to proceed to a particular place, there to await orders, how long to remain there, to attack, to retreat, or to do any other specified thing, belongs -to the officer in charge.

That the assignment was made at the request of the officer can make no difference. The pay is regulated by the position, and not by the manner of influence by which the position is acquired.

Captain Williamson was ordered by the Adjutant-General of the Department of Missouri, by authority of the General of the Army, to proceed to his home and await orders, reporting thence by letter to the Adjutant-General of the Army and to these headquarters.

The power to make this assignment was a portion of the executive authority, and was Tested in the commander of the Army. Captain Williamson was not only justified in obeying this order, but it was his duty to obey it. It was his duty to proceed at once to his home, there to remain, subject to orders to be communicated to him. He was expressly required by General Order No. 2 to make no application for special duty, but was informed that if his services were required a detail would be made without his application. He did proceed to his home and there remained waiting for orders until he was mustered out of the nervice. He was waiting orders, in pursuance of law, but was not absent from duty on leave.

It is not in the power of the executive department or any branch of it to reduce the pay of an officer of the Army. The regulation of the compensation of the officers of the Army belongs to the legislative department of the Government. Congress has fixed the pay of a captain of infantry at $165 per month. The deduction of one-half of the amount, when absent from duty on leave, is not applicable to the case of Captain Williamson. He is entitled to his full pay as a captain of infantry. The Court of Claims has done right, therefore, in giving its award in his favor for the amount withheld, and its judgment is affirmed.  