
    CHAUNCEY THOMAS v. THE UNITED STATES.
    [No. 22642.
    Decided January 5, 1903.]
    
      On the Proofs.
    
    A naval officer on duty on the flagship Baltimore lying off Cavite is' ordered (1) to proceed to Shanghai “ and report to the senior naval officer present for duty as a member of a board of appraisal;” (2) and, “when the board has completed its duties" to proceed to San Francisco for duty at Mare Island.
    I. A naval officer ordered from Manila to Shanghai for duty there, and when the duty is performed, to proceed to San Francisco, is not “traveling to and from our island possessions" within the meaning of the Act 3d March, 1899 c(30 Stat. L., 1068); but is traveling from Manila to a foreign land and from a foreign land to the United States, and is, therefore, entitled to mileage.
    II. If an officer is entitled to mileage by law, the order of his commanding officer to proceed on transportation to be furnished him does not impair his right to mileage; nor does the officer’s acceptance of the transportation deprive him from claiming mileage.
    
      The It&porters' statement of the case:
    The following are the facts of this case as found by the •court:
    1. The claimant, Chauncey Thomas, a lieutenant-commander in the United States Navy, while on duty on the flagship Baltimore, then lying off Cavite, Philippine Islands, received an order, which, with the indorsements showing the action thereon, is as follows:
    “U. S. Naval FoRCes on Asiatic StatioN,
    
      “Flagship Baltimore, off Omite, P. I, Dec., 13, 1889.
    
    “Sir: You are hereby detached from theflagship Baltimore, and dutjT on my staff, and will proceed to Shanghai, China, by mail steamer, and report to the senior naval officer present for duty as a member of a board of appraisal of the U. S. Monocacy.
    “ 2. When the board has completed its duties you will, by authority granted you by the Navy Department, proceed to San Francisco, California, by mail steamer, and report by letter or telegraph to the commandant of the navy-yard, Mare Island, for such duty as he may assign you.
    “ 3. You have permission to delay a month en route.
    “4. The fleet paymaster will furnish you transportation from Manila to San Francisco, California.
    “Very respectfully,
    “J. C. Watson,
    
      “Rear-Admiral, U S. Navy,
    
    “ Commander in Chief on Asiatic Station.
    
    “Lieutenant-Commander Chauncey Thomas, U. S. Navy.”
    II. The distances traveled bjr the claimant in pursuance of the above order, by the shortest usualty traveled routes, are as follows:
    Miles.
    Manila to Hongkong..■. 722
    Hongkong to Shanghai. 989
    Shanghai to Yokohama, via Nagasaki and Kobe. 1, 365
    Yokohama to Honolulu... 3, 916
    Honolulu to San Francisco. 2,418
    Total. 9,410
    III.- At the rate of 7 cents a mile, the mileage for such travel would amount to 1658.70. The claimant has, however, received, under the name of transportation and expenses, §237.89. If entitled to mileage at 7 cents a mile, the sum to which he is entitled would be §420.81.
    IY. The Auditor of the Treasury for the Navy Department, on or about May 16,1900, disallowed a claim presented by the claimant for mileage, less the amount already received, on the ground that his acceptance of transportation and subsistence constituted a waiver of the claim for mileage.
    
      Subsequently, however, on the 8th of May, 1902, the Comptroller of the Treasury decided in the case of Lieut. Victor Blue that, where transportation was furnished to an officer of the Navy in pursuance of orders, the acceptance of such transportation did not constitute a waiver of. any' right to mileage.
    V. Since June 30, 1899, .the claimant was attached to and-doing duty on board of a seagoing vessel from July 1, 1899, to December 17, 1899, a period of one hundred and seventy days.
    He did not receive during that time a sea ration under section 1578 of the Revised Statutes, or the commutation thereof provided for by section 1585.
    The Comptroller of the Treasury has decided that no officer of the Navy is entitled to such sea ration since June 30, 1899. During this time the claimant has been paid army pay as lieutenantmommander, being that of a major in the Army of more than twenty years’ service, amounting to $3,500 a year.
    If entitled to commutation of rations at 30 cents a day, he would be entitled to $51.
    
      Mr. George A. King for the claimant.
    
      Mr. John Q. Thompson (with whom was Mr. Assistant Attorney- General Praclt) for the defendants.
   Howey, J.,

delivered the opinion of the court:

The first item of the claim is for mileage from Manila by way of Honolulu to Shanghai, thence to Yokohama and Honolulu to San Francisco. The travel was performed after the passage of the Navy personnel act, but before the act of March 3, 1901 (2 Supp. R. S., 1533), which provides that “Actual expenses only shall be paid for travel under orders outside the limits of the United States in North America.”

Under the thirteenth section of the Navy personnel act (30 Stat. L., 1Ó07), it was provided that after June 30,1899, commissioned officers of the line of the Navy and of the medical and pay corps should receive the same pay and allowances, except forage, as then or thereafter to be provided for officers-of corresponding rank in the Army. The act of March 3, 1899, making appropriations for the support of the Regular and Volunteer Army for the fiscal year ending June 30, 1900, contained provisions for mileage, but limited reimbursements to actual expenses in certain cases as follows:

li Provided further, That actual expenses only shall be paid to officers traveling to and from our island possessions in the Atlantic and Pacific oceans.” (30 Stat. L., 1068.)'

It is not denied that mileage is an allowance, but it is contended for the Government that the travel performed under the order appearing in this case was travel from our island possessions in the Pacific Ocean to the United States within the meaning of the proviso relating to mileage in the act making appropriations for the Army. The claim was rejected by the accounting officers, however, for a different reason. Actual traveling expenses were allowed. On the subsequent, presentation of a claim for mileage the demand for the statutory sum was disallowed upon the substantial waiver growing-out of the presentation and allowance of the amount actualty expended on the journey. (In re Leigh, Comp. MS. Dec., May 12, 1900.)

When the officer was detached from the flagship on the Asiatic station the fleet paymaster presumably furnished him with transportation under the order which authorized him to depart. If the officer was entitled to mileage by law the order of the rear-admiral to proceed on transportation to be furnished did not take from plaintiff his right to mileage. Nor did the officer’s acceptance, in itself, of the transportation deprive him of the privilege of claiming and receiving- the amount provided by statute. The fact that he traveled on the transportation supplied by the paymaster of the fleet, paid his other expenses, and on arriving in California collected these expenses from the treasury, does not necessarily imply that he waived his legal rights. There was no consideration to support a waiver. It is not in this case to decide whether for a consideration received by him the officer could waive his right, but enough to saj^ that no consideration appears to bar a further claim for mileage subject to proper deduction for the amount received on the first account.

It is urged that Manila was the starting point and San Francisco the objective; and, as plaintiff was ordered to perform and did perform a small duty in China on the way from Manila- to San Francisco, the travel was from a point in one of our island possessions to the continental limits of the United States.

The continuity of the journey was broken by the stop in China. The officer was ordered from Manila to do duty in' a foreign land. Pie went there pursuant to an order. The ultimate destination was subject to the interruption of official duty elsewhere. True, there appears embodied in the order permission for the officer to delay a month en route, but above that was the command to report at Shanghai to the senior naval officer present, for duty, as a member of a board .of appraisers of the U. S. S. Monocacy. The first essential of the order subjected the officer to the performance of whatever duty might be assigned to him in connection with the duties of that board. After' he entered upon the performance of the duty thus assigned, the time he was engaged in its performance became immaterial "to the claim for pay for mileage. He was on duty in obedience to the order of his superior officer in a foreign country. When he undertook t.ie home journey, after these duties were ended, China was the starting point. This entitled the officer to mileage.

As it is shown that plaintiff’s traveling expenses and transportation amounted to $237.89 and the mileage' account at 7 cents a mile for 9,410 miles aggregates $658.70, the account for mileage is subject to the deduction of the cost of transportation' and incidental traveling expenses already-paid. Accordingly, plaintiff is entitled to judgment for the difference.

As to the second item of the claim, plaintiff is not entitled to a commutation of the sea ration not received. (Charles M. Thomas v. United States, post, p. —.)

Judgment will be entered for the mileage unpaid, aggregating $420.81, in favor of plaintiff.  