
    CARL L. MUELLER v. THE UNITED STATES.
    [No. 25640.
    Decided March 12, 1906.]
    
      On the Proofs.
    
    A surgeon on duty in Porto Itico is ordered orally by the chief surgeon of the department to proceed by the next transport to Washington and report to the Suregon-General for further orders. Upon arrival he is given leave of absence by the War Department on account of sickness. Subsequently the Secretary of War approves the chief surgeon’s oral order “as necessary for the. public service."
    
    
      I. Tlie Act Scl March, 1SS3 (22 Stat L., p. 450), relating to the payment of mileage for travel of officers of the Army provides that “from and after the passage of this act” “the necessity for such travel in the military service shall be certified, to by the officer issuing the order and stated in said order.” The Army Regulations provide that “Staff officers not serving under department commanders will apply to the War Department. for orders directing necessary travel on public business; ” and that “When urgent public duly has compelled travel without authority previously obtained, the case will be immediately reported to the proper superior officer, whose approval in subsequent orders will be accepted as though previously issued.” (Sections 09 and 70, Army Regulations for 1895.) There is no lack of harmony between the statute and the Regulations; and the exigencies of the military service demand that they be construed together.
    II. A subsequent approval by the Secretary of War of a previous oral order of a superior officer directing a surgeon “ to proceed by the next transport to Washington, D. 0., and report to the Surgeon-General for further orders,” with a certification by the Secretary of the travel having been “ necessary for the public service,” is a substantial compliance with the statute and entitles the officer to mileage.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Carl L. Mueller, ivas mustered into the service of the United States as a captain and assistant surgeon of the Second Regiment Ohio Volunteers on May 10, 1898,, and was mustered out with said regiment with the same rank on February 10, 1899. He served on detached service in the military hospitals in Cuba. He was taken sick while on duty at Coamo, P. R., and was admitted to the hospital at that place and transferred to the hospital at Ponce, P. R., on November 1,1898, and to the transport Obclam on November 5, 1898.
    On or about November 1, 1898, claimant was orally on dered by Maj. P. R. Egan, then chief surgeon, Department of Ponce, to proceed by the next transport to Washington, D. C., and report to the Surgeon-General for further orders. Claimant, in pursuance' to these oral orders, traveled from Ponce to New York , on the army transport, leaving Ponce November 4, 1898, and from New York he proceeded to Washington, D. C., arriving November 13, 1898. Upon arriving at Washington claimant was given a leave of absence by the following orders:
    “ Special Orders. ) “ Headquartees of tile Army,
    >- “AdjutaNt-GeNeral’s Office,
    “ No. 275. ) “Washington, Nov. ¶1, 1898.
    
    [Extract.]
    . “ 10. Leave of absence for two months is granted Captain Charles L. Mueller, assistant surgeon, 2d Ohio Volunteer Infantry, on surgeon’s certificate.
    “ By command of Major-General Miles.
    “XT. C. CorbiN, Adjutant-General.”
    Upon the expiration of said leave claimant reported to his regiment, then stationed at Macon, Ga.
    This travel was approved in the following orders:
    “ Special Order, ) “ Iíeadquarters of ti-ie Army,
    >• “AdjutaNt-GeNeral’s Office,
    No. 33. ) “ Washington, February 9,1899.
    
    [Extract.]
    “ 69. By direction of the Secretary of War, the journeys performecl by Captain C. L. Mueller, assistant surgeon 2d Ohio Volunteer Infantry, November 4 to 13, 1898, from Coamo, Porto Rico, to Washington, District of Columbia, upon oral orders from the chief surgeon, Department of Ponce, and from this city to Macon, Georgia, the station of his regiment, are approved by the Secretary of War as necessary for the public service.
    “ By command of Major-General Miles.
    “ IT. C. CORBIN,
    
      iiAdjutant-Ge7ieral.'l'>
    
    II. While performing the travel as stated, the claimant furnished his own subsistence and paid his transportation, ■with the exception only that he paid no transportation on the Government transport between Ponce, P. R., and New York City.
    
      III. The distance from Ponce, P. R., to New York, N. Y., is 1,613 miles.
    The distance from New York, N. Y., to Washington, D. C., is 228 miles.
    The distance from Washington, D.- C., to Macon, Ga., is 694 miles.
    
      Mr. Ciarle McKercher and Mr. George A. King for the claimant.
    
      Mr. Charles F. Kinoheloe (with whom was Mr. Assistant Attorney-General Van Orsdel) for the defendants.
   BaRkey, J.,

delivered the “opinion of the court:

The case arises upon a claim for mileage by an officer of volunteers who served during the Spanish Avar.

There is no dispute as to the. facts in the case, which are substantially as follows: The claimant was mustered into service as a captain and assistant surgeon of the Second Regiment Ohio 'Volunteers in May, 1898, and Avas mustered out with said regiment, Avith the same rank, in February, 1899. During a part of his term of service he was on detached duty in Cuba and Porto Rico. While on such detached duty some time in the month of October, 1898, he was taken sick, and remained in the hospitals in Porto Rico until some time in November, 1898, when he receded oral orders from Major Eagan, chief surgeon,' Department of Ponce, to proceed bjr next transport to Washington, D. C., and report to the Surgeon-General for further orders. In consequence of such orders he was transferred to the Government transport Obclam on or about November 3; 1898, on which he traveled via New York City to Washington, D. C., where he reported to the Surgeon-General. On November 21 following he was granted leaA^e of absence for two months, upon the expiration of which leave he proceeded to report to his regiment, then stationed at Macon, Ga., where he was mustered out of service in the month of February following.

While performing the travel, as stated, he furnished his own subsistence and paid his transportation, with the exception that he paid no transportation on the transport between Ponce ancl New York City, N. Y.

On February 9, 1899, just prior to his being mustered out of the service, the Secretary of War approved the travel for which claims is made herein, by the following special order:

“ Special Order,) “ HeadquaRteRs oe Army,
“Adjutant-General's
No. 33. ) “ Washington, February 9,1899.
[Extract.]
“ 69. By direction of the Secretary of War the journeys performed by Captain C. L. Mueller; assistant surgeon 2d Ohio Volunteer Infantry, November 4 to 13, 1898, from Coamo, Porto Pico, to Washington, District of Columbia, upon oral orders from the chief surgeon, Department of Ponce, and from this city to Macon, Georgia, the station of his regiment, are approved by the Secretary of War as necessary for the public service.
“ By command of Major-General Miles:
“ H. C. Corbin.
“A djutant- General

The claim was presented to the accounting officers of the Treasury, but payment was refused. •

The act of March 3, 1883 (22 Stat. L., 4-56), referring to the payment of mileage for travel of officers of the Army provides that “ from and after the passage of this act * * * the necessity for such travel in the military service shall bo certified'to by the officer issuing the order and stated in said order.”

Sections 69 and 70 of the Army Regulations for 1895 are as follows:

“ 69. Staff officers not serving under department commanders will apply to the War Department for orders directing necessary travel on public business.
“70". When urgent public duty has compelled travel without authority previously obtained, the case will be immediately reported to the proper superior officer, whose approval in subsequent orders will be accepted as though previously issued.”

We see no lack of harmony between the act of March 3, 1883, and the Army Regulations above cited; in fact it would appear that the exigencies of the service demand that they be construed together. We think, therefore, that the subsequent approval by the Secretary of War of the previous oral order of the superior officer of the claimant and the certification of its necessity constitute a substantial compliance with the law in regard to mileage, and that the claimant is entitled to recover.

It has long been held that the rule of the common law relative to the ratification of the unauthorized acts of an agent is as applicable to the obligations of the Government as of individuals (Fremont & Jackson’s case, 2 C. Cls., 461), and that the subsequent approval by the head of an Executive Department where approval is necessary relates back, wherever given, to the date of the transaction. (Power’s case, 18 C. Cls. R., 263, 276.)

Judgment is therefore ordered for the claimant in the sum of one hundred twenty-nine dollars and six cents ($129.06).

Howrt, J.,

dissenting:

Plaintiff traveled without the certificate of the officer issuing the order showing the necessity for the travel. Such necessity -under the plain provisions of the statute must have appeared by certificate from the officer and stated in the order when given. And such an order could have been had' for the asking if the necessity existed.

In Romeyn v. United States, 20 C. Cls., 373, this act was construed and payment denied because of the absence of a certificate. The decision was merely the application of the wholesome and salutary rule declared by the statute to prevent useless travel at Government expense, and to enable the proper department to know where its officers were going and what they were going for. The decision of the court was unanimous in its construction of the law, and the rule declared has been in force for twenty years in'the Army and at the Treasury. There are emergencies (though extremely rare) when urgent public duty might compel travel without an order showing the necessity for it, and the regulations fit that kind of a case. But when to entitle one to mileage the law requires a certificate from the officer issuing the order which shall state the necessity for the travel the emergency should appear before the regulations can operate to cure the omission. Executive officers are as much bound by the law as anybody, and they can not by regulations supersede or set aside the statute. Courts can not alter the law by incorporating into the statute a regulation that can only have application when urgent public duty has compelled the travel without proper authority obtained previous to incurring the expense. The case at bar does not come within the regulations because the travel was not immediately reported to the proper superior officer. The approval in subsequent orders was dependent upon an immediate report. As no evidence is produced aliunde the order to show the necessity of the travel there is neither law nor regulation authorizing the payment.

In the act of August 6, 1894 .(28 Stat. L., 237), it is provided that “ all orders involving the payment of mileage shall state the special duty enjoined.” No order ever given enjoined any public duty in this case. The leave of absence granted took this officer of£ duty. The necessity to get so far awajr from his command as to make up a mileage claim to the seat of government and at leisure then to make up another travel account to get back to his regiment does not appear either in fact or in the necessary order.

I am requested to say that Atkinson, J., concurs in the views set forth in this dissenting opinion.  