
    CHARLES B. HUNT v. THE UNITED STATES.
    [No. 22522.
    Decided May 25, 1903.]
    
      On the Proofs.
    
    At the close of the war with Spain, the Secretary of War orders that furloughs for thirty or sixty days “ be granted all officers and enlisted men of organizations” which have served in the wax', “ when such organizations are ordered to be mustered out of service, ’ ’ except officers and men required for guard details. The Hirst Ohio Volunteers is ordered to the place of enrollment for muster out, and the colonel of the regiment grants furloughs generally, but details officers and men for guard duty, and remains himself in charge of the guard and regimental property without taking or being granted a leave of absence.
    I.The Act 36th May, 1890 (30 Stat. L., p. 781), imposes but two conditions upon the right of an officer or soldier who sei'ved in the war -with Spain, to receive the extra pay which it grants — that he was “ honorably discharged,” and that he was discharged “ without furlough.”
    
    II.The colonel of a regiment of volunteers to whom no leave of absence was granted, and who remained at the place of regimental enrollment in command of officers and men detailed for guard, and in charge of the regimental property while the remainder of the regiment were absent on furlough, is entitled to the extra pay given by the statute.
    III.The Acts 18lh June, 1878; 38d June, 1879 (20 Stat. L,, p. 145, § 9, 21 id., p. 30), provide “that at all places where there a,re not public quarters commutation therefor may be paid.” But this does not change Army Regulations, 1336, the plain purpose of which is that commutation will be allowed only where an officer is detailed for “duty without troops.” An officer on duty with troops though in a city where there are no quarters which can be assigned to him is not entitled to commutation.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant was enrolled as colonel of the First Ohio Volunteer Infantry on April 26, 1898, and was mustered into the military service of the United States in the war with Spain on May 6, 1898. He remained attached to said organization as colonel thereof, except for the periods from May 26 to 29, and from August 28 to September 11,1898, when he exercised the command of brigade commander, for which higher command he was paid as of the proper rank, serving within the limits of the United States until mustered out with said regiment on October 25, 1898.
    II. On September 12, 1898, claimant, as commanding officer of the First Ohio Volunteer Infantry, received, through military channels, General Orders, No. 130, Adjutant-General, series of 1898, as follows:
    ***** * *
    “1. Except the officers and men required by paragraph 5 for the necessary guard details, etc., leaves of absence for sixty days and furloughs for the same period will be granted all officers and enlisted men of organizations which have served beyond the limits of the United States, and thirty days to officers and men of organizations which have not served beyond the limits of the United States when such organizations are ordered to be mustered out of service.
    “2. Such leaves of absence and furloughs will be granted by the commanding officers after organizations have arrived at State rendezvous, all to take effect on one date for thirty days or sixty days, as the case may be, and all officers and men must without fail report at the rendezvous on the thirtieth or sixtieth day thereafter. Any officer or man failing to so report will be considered and reported as a deserter unless prevented from doing so by sickness, which must be satisfactorily explained by the certificate of a reputable physician and the fact noted on the rolls.
    “3. Before organizations are granted furloughs, the preparation for muster out, as required by General Orders, No. 124, August 20, 1898, from this office, will, in view of the foregoing-, be carried out only so far as relates to the inspection and correction of records; inspection and transfer of such public property as may no longer be required; the preparation and comparison of property returns; the steps necessary to secure certificates of nonindebtedness and for the return of all absentees, etc.
    “4. When possible, all returns and papers relating to the muster out of organizations will be prepared during the period of furlough.
    “5. Each commanding officer, prior to the departure of his officers and men, will make arrangements necessary to verify and protect all public property pertaining to his command during the period of absence, and place the same under proper guard detailed from his command for the purpose. He will notify the Adjutant-General of the Army of his arrival at rendezvous, and at the earliest possible moment the date on which leaves and furloughs expire.”
    At the same time claimant received Special Orders, No. 88, Headquarters Seventh Army Corps, in which said regiment was ordered to proceed to Cincinnati preparatory to muster out, as follows:
    “Special Ordees, ] Hdqrs. Seventh Army Corps, >- Camp Cuba Libre, “No. 88: ] Jacksonville, Fla., September #, 1898.
    
    *X* •* * -X- #
    “In compliance with telegraphic instructions, dated Washington, D. C., September 2, 1898, the following-named regiments will be prepared by the chief mustering officer for muster out of the U. S. Volunteer service, according to the requirements of G. O., 124, A. G. 0., current series, as amended by G. O.., 130, A. G. O., current series:
    .“First Alabama U. S. Volunteer Infantry.
    “ Second Alabama U. S. Voluhteer Infantry.
    “First Ohio U. S. Volunteer Infantry.
    * * * * -X-
    “By command of Major-General Lee:
    “R. E. L. Michie,
    
      Assistant Adjutant- General.”
    Upon receipt of said orders claimant issued Special Orders, No. 69, under which certain officers of the regiment were specially detailed for duty at the armory at Cincinnati, Ohio, from arrival until final muster out, as follows:
    
      “ Special Order ) “No. 69. S
    “ [Extracts.]
    “ Second. The following-named officers will remain on duty at the armory until final muster out of the regiment:
    “Frank W. Hendley, major surgeon; Russell P. Reeder, captain and adjutant; George J. Hopf, captain and regimental quartermaster; Charles Becht, captain; Ernest P. Dietz, captain; Harry Havlin, captain; William L. Hayes, captain; August W. Margedant, captain; Herman O. Moeller, captain; Charles Pieper, captain; Percy H. Hawkins, captain; Charles F. Hake, jr., captain; Fred. L. Davidson, captain; WilliamM. Sullivan, captain.
    “Third. All officers will be for duty from October 15,1898, until final muster out.
    ‘ ‘ F ourth. The following-named lieutenants will be for guard duty and such other duties as they may be called to perform:
    “ Robert L. Davis, first lieutenant; William Schuster, first lieutenant; Henry J. Pfiester, first lieutenant; Robert L. Dunning, first lieutenant; William H. Latham, first lieutenant; Charles P. Clark, first lieutenant; Anton Foellger, first lieutenant; William R. Collins, first lieutenant; Harry Terrell, second lieutenant; Marcus H. Folger, second lieutenant; Desire L. Sence, second lieutenant; George A. Fisher, second lieutenant; Thomas H. Pfeiffer, second lieutenant; William McMiller, second lieutenant; Adolph R. Diehl, second lieutenant; Fred Raine, jr., second lieutenant; Eugene M. Shinkle, second lieutenant; Harry C. Williams, second lieutenant; Charles F. Laur, second lieutenant; William M. Olhaber, second lieutenant; Joseph E. Boylon, second lieutenant.
    “By order of Colonel Hunt:
    “Russell P. Reeder,
    “ Oaptavn, and Adjutant 1st O. V. IA
    
    III. The First Regiment, Ohio Volunteer Infantry, arrived at Cincinnati, Ohio, September 15, 1898, and in pursuance of said Special Order No. 69, and of verbal orders given by claimant at various times until October 25,1898, most of the officers of said regiment remained on duty at the armory, where military order and discipline were observed. Claimant was in sole command of the officers and enlisted men at the armory, and he was actively on duty there every day except one during the period of furlough, performing such duty as was incident to his command. All orders from the War Department were received and acted upon by him at various times during the furlough as commanding officer.
    
      IY. Claimant was paid as a colonel at the rate of $3,500 a year (R. S., 1261) to the date of muster out, but was not paid extra pay under the act of Congress approved January 12, 1899, or amendments thereto. He presented a claim to the Auditor for the War Department, who disallowed the same on the ground that the records of the War Department did not show him retained for duty b}r competent authority.
    Y. Claimant was on duty as commanding officer of the regiment from the date of arrival at Cincinnati, Ohio, on September 15, 1898, to the date of muster out on October 25, 1898. During this period there were no public quarters, and no quarters were provided for the officers on duty. The armory at Cincinnati, Ohio, was the property of Hamilton County, and was not suitable for officers’ living quarters. This claimant and other officers on duty furnished their own quarters. Claimant applied to the mustering officer, the immediate representative of the War Department in the mustering out of the regiment, for information in regard to quarters, and was told by him that no provision had been made. There were no superior officers on duty at Cincinnati to whom application could be made.
    Claimant presented a claim for commutation of quarters, but the same was disallowed on the ground that he was on waiting orders.
    The number of rooms allowed to a colonel by Army Regulations, 1895, paragraph 1006, is five. If claimant is entitled to commutation therefor, it would be at the rate of $12 per month for each room. (21 Stat. L., 30).
    
      Mr. Olarlc. McEercher for the claimant. Messrs. George A. and WilUcum B. King were on the brief.
    
      Mr. George M. Anderson (with whom was Mr. Assistant Attorney- General JPradt) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

Prior to the war with Spain it had been the invariable practice of the War Department (as the court understands) to order a regiment of volunteers, whose services were no longer needed at the close of the war, to the place of enrollment, then and there to be mustered out of service. It has also been the invariable policy of Congress to allow to volunteer troops after th.eir discharge one, two, or three months’ extra pay. (Emory’’s ease, 19 C. Cls. R., 254.)

At the close of the war with Spain the War Department instituted an entirely new policy. Instead of ordering volunteer commands home, to be then and there mustered out of the service, they were ordered home, not to be then and there mustered out of the service, but that leaves of absence and furloughs “be granted” to those officers and enlisted men for sixty or thirty days, as further provided. These leaves and furloughs were of course individual, and the order excepted officers and men needed for duty, to whom leaves and furloughs should not “be granted;” but the leaves and furloughs were “all to take effect on one date,” and the officers and men to whom they were granted were required without fail to “report at the rendezvous on the thirtieth or sixtieth day” preparatory to muster out. It is plain that this order was a device of the War Department to give to volunteer soldiers the usual additional pay at the close of their service without waiting- for the action of Congress.

By the Act 12th January, 1899 (30 Stat. L., p. 784), Congress approved or disapproved (as it may appear to different minds) this action of the War Department, and enacted, generally and prospectively, “That in lieu of granting leaves of absence and furloughs to officers and enlisted men belonging to companies and regiments of the United States Volunteers prior to muster out of the service,” they shall hereafter “be paid two months’ extra pay on muster out and discharge from the service.” Subsequently, Congress became aware of the fact that not all of the volunteer officers and men had been granted leave of absence or furlough, and, by the. Act 26th May, 1900 (31 id., 217), enacted that officers and enlisted men who had served faithfully during the war with Spain and had been “honorably discharged without furlough,” should be paid the extra pajr “at the rate of one month to those who did not serve beyond the limits of the United States, and two months to those who served beyond the limits of the United States. ”

This being the condition of the statute law, it remains to be said of the order of the War Department, first, that neither the Secretary of War nor any officer of the Government can force a leave of absence or furlough upon an officer or soldier; second, that the order does not assume to do so, but was the old, well-understood formula that leaves and furloughs “bo granted;” third, that the order does not contemplate that every member of a regiment will be furloughed, but, on the contrary, expressly excepts those whose services may be needed — -“officers and men required for necessary guard details,” etc.

A leave of absence or a furlough is a favor extended. A soldier can not have a furlough forced upon him. So long as he remains in the service he is entitled to rations and a resting place and medical attendance. No officer of the Government can authoritatively say to him, “Be gone for a month or two and take care of jmurself, and fail not to come back at the appointed time to resume jTour duty and get 3rour pay, or you will be arrested as a deserter.” The only manner in which the Government can release itself from its obligations to the soldier, be ho officer or enlisted man, is by setting him free — by discharging him from the service.

For the purposes of this case it is immaterial whether an officer or soldier was on active duty or compulsory duty, or any kind of duty. If he was still in the service of the United States — still 'under the obligations of military law, and has been “honorably discharged”. — the act 26th May, 1900, gives him one month’s extra pay unless he received and accepted a “ furlough.”

It has been suggested that these members of the First Ohio Volunteer Infantiy who were retained on duty in Cincinnati after the return of the regiment in September, 1898, wore retained at the place of their enrollment; and thejr being at their homes, or residences, and the duty trivial or nominal or perfunctory, it was the equivalent of a leave of absence or furlough. But the statute says nothing about homes or residences or equivalents. When a soldier receives a furlough he is for the time being his own master and the master of his own time, and is free to go where he pleases, and do what he pleases, owing no militaiy duty to the Government. It is not unlikely that in September, 1898, a great city was the last place in which these men, just returned from a semitropical climate, desired to be or in which it was desirable they should be.

As for Colonel Hunt, it appears to the court that he did precisely what it was the dxdy of a colonel of a regiment to do— he obeyed the order of the War Department to detail a sufficient guard for the protection of the arms and other public property in possession of his command; he reported to different commanding officers for orders or instructions; he remained in Cincinnati during the whole period of the furlough; he attended daily at the arsenal where the property was stored, and supervised the attendance and discipline of his guard; he did not apply for leave of absence, or receive a leave of absence, or onjoj^ a leave of absence. As to the other members of the regiment who have appeared in this court, they had no voice in the matter. Furloughs were flatly refused to them by ordering them to remain on duty. The bona fides of what was done can not now be questioned. In September, 1898, no law existed granting an additional month’s pay to volunteers, and no man could have anticipated the act 2títh JVffiy, 1900, with the conditions which it imposed. Undoubtedly those members of the regiment detached for guard duty then regarded their assignment to duty while their comrades were enjoying a furlough as one of the unfortunate chances of war. But the whole case can be summed up in a single sentence, which is this: The statute imposes but two conditions upon the right of a soldier to receive the one month’s extra pay which it grants; the first is that ho was “honorably discharged;” the second that he was discharged “without furlough.”

There is an additional cause of action in the case, being for commutation of quarters while the regiment was awaiting muster out in Cincinnati. This is founded on the very broad language of the Acts 18th June, 1878 (20 Stat. L., p. 145, sec. 9), and 83 d June, 1879 (21 id., p. 30), which provide “that at all places where there are no public quarters, commutation therefor may be paid.” But the court is of the opinion that the military condition of the claimant in Cincinnati was that of an officer on duty with his regiment in the field, and that the statutes do not extend to such cases. Commutation fox-quarters existed long before these statutes were passed, and have always been regulated by the Armjr Regulations. The purpose of the statutes was not to change the regulations, for they refer to “such number of rooms as is now allowed to such grade by the rules and regulations of the Army,” and they confine commutation to officers “entitled to the same.”

By regulation 1836 an officer is not entitled to commutation unless he is “ on duty without troops at a station where there are no public quarters,” and “ an officer ordered to his homo to await orders is not entitled to this allowance” (ib., 1341). The plain purpose of the regulation is that commutation of quarters is allowed only where an officer is detailed for “ duty without troops;” and the statutes do not enlarge the regulation, but merely limit the price to be allowed per room to $12 per month, leaving it to the War Department to determine when and under whát conditions commutation should be allowed.

The judgment of the court is that the claimant recover for one month’s pay after his discharge from service, $291.67.  