
    CHARLES M. KINSOLVING v. THE UNITED STATES
    [No. D-768.
    Decided February 14, 1927]
    
      On the Proofs
    
    
      Army pay; authority to assign junior officer to higher command while senior officer is present. — The authority to assign a junior Army officer in time of war or public danger to take command of an organization while a senior officer is present therein and available is in the President. Where such an assignment has been made without the authority of the President it. is void and the junior officer is not entitled to the pay appertaining to the higher command.
    
      The Reporter's statement of the case:
    
      Mr. GorneUus H. Bull for the plaintiff. Mr. George A. King and King ds King were on the briefs.
    
      Mr. John G. Etoing, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. Plaintiff claims the difference in pay between the grades of major and first lieutenant of the aviation section, Signal Corps, during the period from October 1, 1918, to January 19, 1919, while in command of the One hundred and sixty-third Aero Squadron in France.
    II. Plaintiff, an American citizen, while serving as a sergeant in the French Army in France, did on about February 25,1918, accept a commission as first lieutenant, aviation section, Signal Officers’ Reserve Corps of the United States Army. Plaintiff was assigned to active duty February 26, 1918, and ordered to report to the commanding officer, headquarters fifth bombardment, per Special Orders, No. 57, headquarters American Expeditionary Forces, France, dated February 26, 1918.
    III. Plaintiff reported to said fifth bombardment group and while serving therewith received Special Orders, No. 51, dated September 80, 1918, as follows:
    SPECIAL ORDERS, NO. SI
    [Extract]
    Headquarters Assistant Chief Air Service,
    Zone op Advance, American Expeditionary Forces,
    
      France, September SO, 1918.
    
    $ $ * ‡ H*
    Par. 1 The following-named officers are hereby relieved from duty with the 1101st Aero Replacement Squadron:
    First Lieutenant Charles M. Kinsolving, A. S., IT. S. A.
    H: * =K *
    Under authority from the commanding general, Hqrs., S. O. S. (dated April 5, 1918), they will proceed from the First Air Depot (Meurthe et Moselle), to Deleuse (Meuse), reporting upon arrival to the commanding officer thereof, for assignment to duty with the 163d Aero Squadron; Lieut. Kinsolving as commanding officer and Lieut. Wilson as flight commander.
    The travel directed is necessary in the military service.
    Hi ‡
    By command of:
    Brig. Gen. Foulois,
    George L. Hyde,
    
      2nd Lieut., A. 8., U. S. A., Adjutant.
    
    Pursuant to said Special Orders, No. 51, plaintiff proceeded with the organization of the said One hundred and sixty-third Aero Squadron and assumed actual command of the same, commanding this unit from about September 30, 1918, until, to wit, January 19, 1919, on which date he was relieved.
    Two officers on duty with the One hundred and sixty-third Aero Squadron during this period were senior in rank to plaintiff, and the plaintiff was not the senior officer on duty with the squadron when he assumed command.
    
      IV. From October 1, 1918, to January 19, 1919, the One hundred and sixty-third Aero Squadron operated against the enemy of the United States for the most part in reconnaissances. It was not the function of the kind of a squadron plaintiff commanded to wilfully engage in combat but to make reconnaissance. These reconnaissances were made along the fighting line on one side or the other, at some points over the enemy’s line, but usually along the American line. And the squadron did not engage in active hostility with the enemy other than incursion from the ground of the enemy’s antiaircraft fire. The squadron sometimes, but not often, fell under that fire. The squadron was on several occasions under orders to fly when possible to do so to assist the advance of the American or allied forces or to repulse the German advance. It was its function to do so when visibility permitted, and on some occasions it could not fly on account of the weather. The armistice was entered into on November 11, 1918, and thereafter there was no warfare between the United States forces and the enemy.
    V. The tables of organization, United States Army, in effect between September' 1, 1918, and January 30, 1919, designated an officer of the grade of major as the senior officer of an aero squadron.
    VI. During all the time that plaintiff exercised the command of the One hundred and sixty-third Aero Squadron he was first lieutenant in the United States Army and was paid as such. The difference in pay and allowances between a first lieutenant and a major during the period October 1, 1918, to January 19,1919, is $723.34.
    The court decided that plaintiff was not entitled to recover.
   Hat, Judge,

delivered the opinion of the court:

This is a suit in which the plaintiff claims the difference in pay between the grades of major and first lieutenant of the aviation section, Signal Corps, during the period from October 1, 1918, to January 19, 1919, while in command of the One hundred and sixty-third Aero Squadron in France. The amount claimed is the sum of $723.84.

The facts in this case are fully set forth in the findings. The fact to which especial attention must be paid is that when the plaintiff was ordered to take command of the One hundred and sixty-third Aero Squadron by the Assistant Chief of Air Service in France there were serving with the said squadron two officers senior in rank to the plaintiff and who were available for duty.

The plaintiff claims under section 6 of the act of April 26, 1898, which reads as follows:

“ 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 so exercised.” * * *

That the plaintiff exercised a command above that pertaining to his rank is not questioned. But the Government contends that he did not exercise such command “ under assignment in orders issued by competent authority.” It is pointed out by the Government that the only authority of law for assigning a junior officer of an Army organization to take command of such organization in time of war or public danger while his senior officer is present and available for duty is by order or authority of the President, and the one hundred and nineteenth article of war is cited to maintain that contention. That article reads as follows:

Rank and Precedence Among Regulars, Militia, and Volunteers. — That in time of war or public danger, when two or more officers of the same grade are on duty in the same field, department, or command, or of organizations thereof, the President may assign the command of the forces of such field, department, or command, or of any organization thereof, without regard to seniority of rank in the same grade. In the absence of such assignment by the President, officers of the same grade shall rank and have precedence in the following order, without regard to date of rank or commission as between officers of different classes, namely: 'First, officers of the Begular Army and officers of the Marine Corps detached for service with the Army by order of the President; second, officers of forces drafted or called into service of the United States; and third,, officers of the volunteer forces.” (39 Stat. 670.)

It is not asserted that the President had given authority to the Assistant Chief of Air Service in France to exercise the authority conferred upon the President by the aforesaid article of war. In the face of the express language of the statute we can not hold that the plaintiff was exercising his command under orders issued by competent authority. That he rendered the service, that he was bound to obey his commanding officer, and would have been court-martialed if he had not done so, may be conceded. But these facts do not cure the inherent weakness of the plaintiff’s case; for an illegal or void order can not be made the basis of a claim for increase of pay for exercising higher command as provided for in the act of April 26, 1898. (30 Stat. 365; 26 Comp. Dec. 691.)

The petition of the plaintiff must be dismissed. It is so ordered.

Moss, Judge; Git ah am, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  