
    DONN C. MITCHELL v. THE UNITED STATES.
    [41 C. Cls. R., 36; 205 U. S. R., 161.]
    
      On the defendants’ Appeal.
    
    A lieutenant in the Volunteer Army, stationed at Huntsville, Ala., during the war with Spain is assigned to the conimand of his company by orders of the corps commander on account of the absence of the commanding officer of the company. The command of the company devolved on the lieutenant without the necessity of an order. The chief question in the case is whether he is entitled to the pay of a captain while exercising the command of one.
    The court below decides :
    I, As the language of the Act 86th April, 1898 (30 Stat. L., p. 364), relating to a command exercised above that pertaining to the grade of an officer “ serving with troops operating against an enemy ” is uncertain and different constructions have been given to it by executive officers, and a number of officers are now denied pay without the right of appeal while, others have received it, the court will now resolve doubts in favor of the claimant and hold that an officer assigned to a higher command by bis corps commander may recover the pay of the higher grade he exercised, notwithstanding the fact that that command devolved upon him by seniority without the aid of such an order.
    2. A regiment enrolled for the war with Spain which was in a camp of instruction in the interior of the country was nevertheless operating against an enemy within the meaning of the statute, though not engaged in actual hostility.
    3. An officer ordered into a hospital on account of sickness who remains there during the furlough period is entitled to recover the one month’s extra pay given by the Act 26th May, 1900 (31 Stat. L., p. 217).
    The court below decided, for the purposes of an appeal, that the claimant was entitled to recover one month’s extra pay as captain and directed judgment for $166.G6.
    The decision of the court below is reversed and the cause remanded with a direction to enter judgment i'n favor of the claimant for $125, being one month’s extra pay as lieutenant mounted.
    March 18, 1907.
   Mr. Chief Justice

Fuller delivered the opinion of the Supreme Court  