
    THOMAS O. SELFRIDGE v. THE UNITED STATES.
    [No. 16858.
    Decided June 12, 1893.]
    
      On the Proofs.
    
    An officer in the Navy is authorized to appear before a court of inquiry, and ordered to wait at Yokohama, on the conclusion of the investigation, until he receives further orders from the Department. The question in the case is, whether “he was troweling abroad under orders," or was “on wanting orders" at Yokohama.
    I.An officer of the Navy, authorized to appear before a court of inquiry on a foreign station and ordered “on the eonelusion of the investigation to return to Yokohama and there to remain until you receive further orders from the Department," is “traveling abroad wider orders” within the meaning of the Act Aug. 5, 1882 (22 Stat. L., p. 286).
    II.The theory of “leave or waiting orders pay” is that an officer while at home on leave ox waiting orders is at less expense than when at sea or on shore service.
    III.An order of the Navy Department will not be construed to place an officer at a foreign port on waiting-orders pay where there is evidently no intention to punish nor to keep him there indefinitely.
    
      The Reporters’ statement of the case:
    The following are tbe facts of tbis case as found by tbe court:,
    I. Plaintiff is, was in May, 1887, and has since been a captain in the U. S. Navy.
    II. A report having been made to the Secretary of the Navy by Rear-Admiral Chandler, commanding the Asiatic squadron, against plaintiff, founded upon an occurrence in Japanese waters when plaintiff was in command of the U. S. S. Omaha, plaintiff requested of the Secretary that he be reinstated in his command (from which he had been relieved), or otherwise that the Secretary would “order a court of inquiry to make a full investigation of the occurrence.” The latter request was granted, a court was named to convene upon a United States vessel in the harbor of Nagaski, to inquire into the matter, and plaintiff received the following authorization and order from the Secretary of the Navy:
    “You are authorized, if you so desire, to appear before said court to cross-examine witnesses and to adduce such evidence in your own behalf as may be proper.
    
      “You are, therefore, ordered to proceed to Yokohama, Japan, by way of San Francisco, taking passage in the steamer leaving that port for Yokohama about the latter part of this month, and on your arrival at Yokohama you will report to the commander in chief Asiatic Station for attendance before said court.
    “Bear-Admiral Chandler is instructed to direct you, on the conclusion of the investigation, to return to Yokohama, and there to remain until you receive through him further orders from the Department.”
    III. Plaintiff proceeded to Yokohama, waited a few days for a connecting steamship, and then went on to Nagasaki. He attended the court of inquiry, and, July 23, 1887, was ordered by Bear-Admiral Chandler to return to Yokohama by mail steamer. This order he complied with, stopping necessarily a few days at Hiogo for a connecting steamship. He remained at a hotel in Yokohama, after his arrival there, until he received the following telegram:
    
      “ [Cable sent Deo. 31, 1887.]
    “Captain Seleridge,
    “ Yokohama:
    
    “Proceed home. . Beport arrival.
    “Whitney.”
    He then returned home by the first steamship leaving Yokohama.
    IY. Plaintiff has been paid his expenses from his departure from home until his return, except that he has not been paid his hotel bill of $416.22, incurred at Yokohama after his return from Nagasaki and before his departure for the United States. .This was an actual and reasonable expense.
    V. Upon his return home from Yokohama plaintiff received the following order:
    “Navy Department,
    “ Washington, February 23, 1888.
    “ Sir : Your letter of the 21st instant, reporting your arrival at your home from Yokohama, Japan, is received, and you will regard yourself waiting orders from the date of your arrival. “Bespectfully,
    “D. 33. Harmony,
    “ Acting Secretary of the Wavy.
    
    « Capt. Thomas Ó. Seleridge, U. S. Navy,
    “ Boston, Mass.”
    
    
      This is tlie form of order placing an officer upon waiting orders usually adopted by the Navy Department.
    The term “waiting orders,” as employed in the naval service, has acquired a special and definite significance. Cases sometimes arise in which, for reasons connected with the exigencies of the service, an officer is directed to proceed to a certain point and remain there until further orders. In such a case the officer is not necessarily regarded as on “waiting orders” in the sense in which that term is used in the naval service. In the present case plaintiff was not, in the opinion of the Navy Department,upon “waitingorders” while in Yokohama upon his return from Nagasaki. It is contrary to the practice of the Navy Department to place officers upon “waiting orders ” elsewhere than at their homes, but in a few instances such orders have been issued as a punishment. In these cases, however, which were exceptional, the fact that such officers were placed on “waiting orders” was specifically stated.
    
      Mr. Ward Thoron for the claimant.
    There is no controversy in this case either as to the reasonableness of the expenditures made by Capt. Selfridge or as to the main facts. The controversy is entirely whether the residence of the claimant at Yokohama from July 23,1887, to January 7,1888, comes within the words of the statute “while traveling abroad under orders.” These words of the statute do not appear to have been heretofore construed by the court. In determining this question it becomes, first, necessary to determine what was Capt. Selfridge’s post of duty under these orders. That being determined, it will follow logically that the reasonable and necessary expenses incurred by Capt. Self-ridge while under orders and not at his post of duty are those that come within the designation in the statute of expenses incurred while traveling abroad under orders.
    The letter ,of the Secretary of the Navy which contains the orders governing the present case states the purpose for which the claimant was ordered abroad, viz: “To appear before the said court to cross-examine witnesses and adduce such evidence in your behalf as may be necessary.” The post of duty of the claimant was, therefore, his attendance ujJon. this court. The place where the court met was at Nagasaki, Japan; therefore while at Nagasaki the claimant was at his post of duty; while elsewhere, from the time of Ms departure from the United States until the time of Ms return, be must necessarily be considered to have been in transit either to or from such post of duty. That this construction is the logical and rational outcome of the facts in the case is sustained by the action of the Secretary of the Navy when the claimant submitted his claim for reimbursement for his actual and necessary expenses while traveling under orders from the Navy Department. The Department, being fully cognizant of the facts in the case, approved the same, and the requirements 'of the statute are therefore complied with.
    The accounting officers of the Government, however, undertook to distinguish between the circumstances of the first stay at Yokohama in June and the subsequent stay there from July to January. I do not, however, see what distinction can be properly made between the two cases. In one case the stay was made under the provisions of the order directing him to proceed to Yokohama and there take orders in regard to proceeding to his post of duty. The second stay was made under the provision directing him to return to Yokohama and there take orders in regard to his further movements, the nature of his stops as well as its purpose in each case being identical, namely, a conveMent point in transit from which directions could be given as to his further movements. Under these orders no duties whatsoever were assigned to him to perform, and no duties were performed by him at that place, nor could any duties have been assigned to him unless by new orders, which would have changed his status there and made that place a post of duty. This seems to be the reasonable and logical construction of the facts and of the statute. Any other construction would do violence to the purpose for which the statute is framed, and work substantial injustice to the claimant. •
    
      Mr. F. P. JDewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    Under the facts of this case, was claimant between the period “traveling abroad under orders'?” He traveled to Nagasaki, Japan, under orders and was so paid. He traveled from Nagasaki to Yokohama under orders and was so paid. He was directed to remain at Yokohama and await orders.
    
      This was decided by the Second Comptroller to mean waiting orders. It is hard to imagine what other duty it could be. Claimant was abroad, but not traveling abroad. He was on waiting orders. He might have been sent from that point anywhere. , Iu the letter ordering him to travel abroad his course was only indicated as far as Yokohama. His position there was not essentially different from a position waiting orders at any other point.
    If, after having sent an officer abroad, he can not be placed on waiting orders at any point without the Government being liable for his living expenses, then claimant would be entitled to his actual expenses. It is submitted that when an officer of the Navy is sent abroad to perform a specific duty, and return when such duty was performed, any necessary or directed delays in the performance would be at the expense of the Government. But after the journey had ended, the “traveling abroad under orders” had been accomplished, the liability of the Government for personal expenses ends.
    In the case at bar claimant was ordered abroad with ultimate destination at Yokohama, where he was subject to further orders. The purpose of his travel abroad was ended. This is a new question, not because such a case never occurred before, but because it never occurred to any one before to make such a charge.
   Davis, J.,

delivered the opinion of the court:

A report having been made to the Secretary of the Navy by the rear-admiral commanding the Asiatic station against the plaintiff herein in relation to a matter which occurred when the latter was in command of the U. S. S. Omaha, plaintiff requested that he be reinstated in command of his vessel or, otherwise, that the Secretary “ order a court of inquiry to make a full investigation of the occurrence ” which was the subject of the rear-admiral’s report.

The request for an inquiry was granted, a court was named to convene upon a United States vessel in the harbor of Nagasaki, Japan, and plaintiff received the following authorization and order:

“You are authorized, if you so desire, to appear before said court to cross-examine witnesses and to adduce such evidence in your own bebalf as may be proper. Ton are therefore ordered to proceed to Yokohama, Japan, by way of San Francisco, taking passage in the steamer leaving that port for Yokohama about the latter part of this month, and on your arrival at Yokohama yon will report to the commander-in-chief, Asiatic station, for attendance before said court. Rear-Admiral Chandler is instructed to direct yon, on the conclusion of the investigation, to return to Yokohama, and there io remain until you receive through him further orders from the Department. ”

With these orders plaintiff complied; he attended the court of inquiry and July 23,1887, was ordered by Admiral Chandler to proceed by mail steamer from Nagasaki to Yokohama, there to remain until he received further orders from the Navy Department. Orders by cable from the Secretary of the Navy, dated December 31,1887, directed plaintiff to proceed home; this order he obeyed.

Plaintiff now seeks to recover the amount of his hotel bill at Yokohama upon the return trip. This he does upon the theory that while in Yokohama in obedience to orders he was “traveling abroad under orders.” The statute provides (22 Stat. L., 286; see also Supp, R. S., vol. 1, 2d ed., 59, 81, 109, and 377):

“Officers of the Navy travelling abroad under orders hereafter issued shall travel by the most direct route, the occasion for such order to be certified by the officer issuing the same, and shall receive in lieu of the mileage now allowed by law only their actual and reasonable expenses certified under their own signature and approved by the Secretary of the Navy.”

If, then, the plaintiff while stopping in Yokohama under orders “was travelling abroad under orders ” within the meaning of this statute, he should recover in this action, for it is not questioned that the hotel charge was an actual and reasonable expense.

For the defendants it is contended, that while in Yokohama plaintiff was on “waiting orders” and should receive only “waiting orders” pay and not “actual and reasonable expenses;” that his course upon the return trip was indicated only to Yokohama where he was to await orders, as the letter of the Secretary of the Navy instructed plaintiff upon “the conclusion of the investigation to return to Yokohama, and there to remain until you receive through him (the admiral) further orders from the Department.”

As to a captain’s pay, there are the following provisions (Bev. Stat., sec. 1656):

“Captains, when at sea, four thousand five hundred dollars; on shore duty, three thousand five hundred dollars; on leave or waiting orders, two thousand eight hundred dollars. ”

Throughout the pay statute we And “leave or waiting orders ” coupled at the same rate of pay, but neither in the statutes nor regulations is there any deAnition of the term “waiting orders.” A naval officer would naturally await orders in his own country, and his service on the high seas or abroad would be classed either as “ sea” or “shore” duty, depending upon whether he were attached to a vessel or engaged in some special. service, such as that of naval attaché to an embassy or a legation. It appears atíomalous for an officer to be found in some foreign port and there ordered to indeAnitely await orders at his own expense. Such an order would in effect be unjust, as the theory of the lower grade, Axed as “waiting orders ” pay, must be founded upon the fact that the officer is at less expense while “ waiting orders ” than on sea or shore service, which is true if he be at home, and is not true if he be forced to await orders in a foreign town.

Traveling does not intend endless movement; a traveler is one who journeys to foreign lands; one who visits strange countries and people (Century Diet.). Plaintiff was not in movement while attending the court of inquiry at Nagasaki ; he was not in movement during the few days’ detention for a connecting steamship at Hiogo ; he was not in movement during the few days at Yokohama on the way out; yet properly his expenses at these places have been allowed him. At Nagasaki he had to await Admiral Chandler’s order to return to Yokohama, and the only difference between the plaintiff’s position at Yokohama and (before) at Nagasaki was that the admiral could give only one designated order, whereas the Secretary’s future order was uncertain in tenor.

The course of the Navy Department is shown in the And-ings; the Department did not consider the plaintiff, while at Yokohama, as on “waiting orders,” but as “travellingabroad under orders;” the form of order always states that the officer is oh “waiting orders;” it is contrary to practice to place officers on “waiting orders,” elsewhere than at their homes, except as a punishment, and then the fact that they are on “waiting orders” is speciAcally stated.

The plaintiff’s destination after leaving Yokohama was dependent npon the Secretary’s discretion; there evidently was no intention of keeping him in that city indefinitely, but to move him to some other place, undetermined at the time of his departure from the United States, and which the Secretary preferred to indicate at a later day. He was in the condition of a traveler from the time he left the United States until he returned home, and in our opinion while at Yokohama after his return from Nagasaki plaintiff was “travelling abroad under orders.”

Judgment for plaintiff' for #416.22.  