
    PHISTERER’S CASE.
    (Not reported in Court of Claims R.; 94 U. S. R., p. —.)
    Frederick Phisterer, appellee, v. The United States, appellants.
    
      On the defendants’ Appeal.
    
    
      An officer, at Ms own request, is ordered home to await orders. Se reports from New Yorlc as Ms home, and subsequently from Littleton, N. J. Commutation for fuel and quarters while at his home, and transportation in traveling from his station to his home, are refused him. Lie brings his action. The court beloio renders judgment in this and a number of officers’ cases in favor of the claimants, loithout an opinion. The defendants appeal.
    
    I. An officer ordered home, at his own request, to await orders is entitled to mileage from his post to his home.
    II. An officer ordered home to await orders may change his place of residence, reporting the fact to the War Department.
    III. The home of an officer to which he is ordered to await orders is not a military station; and he is not entitled to commutation of fuel and quarters while there awaiting orders, under Army Regulations 1080, which provide that “s ohen public quarters cannot be furnished to officers at stations without troops, quarters will be commuted,” &c.
    
      The Reporters’ statement of the case:
    This case with several others was submitted in order to present a number of disputed points relating to officers’ pay and allowances to the Supreme Court. No opinion was delivered in the court below. Ghilson’s Gcise (11 C. Ols. B., 691) is one of the cases nowdecided, but the point now determined was not considered in the court below, viz, that an officer at his home awaiting orders, though entitled to full pay as if on actual duty, nevertheless is not technically at h “ station without troops,” and therefore is not entitled to quarters and fuel.
    The following are the facts found by the court below:
    The claimant[being a captain of infantry in the Army of the United States from May, 1869, was, by special orders of January 7, 1870, from the Adjutant-General’s Office, at his own request, ordered home to await orders, and left his post, Fort Bridger, Wyo., January 22, 1870. On January 31 and Februaries, 1870, he reported as awaiting orders at.New York City, and March 31,1870, at Littleton, N. J. He was discharged the service at his own request August 4,1870.
    The distancefrom Fort Bridger, Wyo., to New York City was 2,305 miles,- and from Fort Bridger to Littleton, N. J., was 2,274 miles.
    It does not otherwise appear where the claimant’s home was, except that about the first of March, 1870, he was living in New York City, and at that time moved to Littleton, N. J., with his family, and continued to reside there, making it his home, to the 15th of July following and subsequently.
    While awaiting orders from January 31, 1870, to July 15, 187 0, the claimant did not apply for quarters or fuel, and there were no quarters at New York City or Littleton, N.'-J., subject to the control of the Quartermaster’s Department, which could have been assigned to him.
    The rate allowed by the War Department for commutation of officers’ quarters was $18 a room per month. The commutation-price at which fuel was commuted by the Department at New York City during February and March, 1870, was $7.29 per cord; and the market-price of wood at Littleton, N. J., from March 1 to July 15, 1870, was $6 a cord.
    Monthly reports were not received by the War Department from the claimant, as required by the regulations of the Army; and it does not appear when he arrived at New York City, nor were his whereabouts known to the Department or proved in the case, except so far as those facts may appear to be inferred tom the foregoing findings.
    It does not appear that the claimant obtained or asked for permission to change his home or residence from New York City to Littleton, or that any objection was made by the War Department to his having done so.
    
      Mr. Assistant Attorney-General Smith for the United States,, appellants:
    It would be the obvious dictate of common sense that an officer returning to his own family and hearth-stone, at his own request, should not be paid for the rent of a room not in fact used nor required for the public service, nor for fuel when only the same was consumed at his residence as had been before burned by his family, and none for public purposes.
    The rulings of the Department state the matter correctly; that a room and fuel are to be provided, directly or by commutation, when some public duty, to be done at the place where the officer is stationed, requires their use. Herein is the distinction between pay (to which alone Williamson’s case relates) and quarters and fuel. The pay fixed by Congress and intended for the support of the officer and his family, and as a fair compensation for his services, and for the time in which he holds himself ready to serve, and is thereby precluded from engaging in any other occupation, cannot be reduced by departmental order or regulation; but as to fuel and quarters, all the statute says is, “The existing regulations to remain in force until Congress shall have acted on said report;” i. e., on a report therein provided for. (Act July 28, 1866, c. 299, § 37; 14 Stat. L., .338, sixth line.) Those regulations were the revision promulgated August 10,1861, except as to the few particulars in which they had been modified. The revision, with statutory and executive or departmental changes down to July 25, 1863, was published by the Government in book-form in 1863, which edition will be the one here cited. Upon all points on which Congress has not directly acted, these regulations had the force of law prior to the Act July 28,1866, c. 299. (United StateS v. Fliason, 16 Pet., 302; United States v. Freeman, 3 How., 566, 507; Gratiot v. United, States, 4 How., 117, bottom; Siclcey v. Fuse, 56 Maine, 495,496.) As to regular pay, Congress had acted; the matter of fuel and quarters was left to the regulations promulgated as aforesaid. (3 How., 566; 4 How., 117.) The Revised Statutes also say: “ Sec. 1269. No allowances shall be made to officers in addition to their pay except as hereinafter provided. Sec. 1270. Fuel, quarters, and forage may be furnished in kind to officers by the Quartermaster’s Department according to law and regulations.” This revision is-' a mere compilation of previously-existing laws. The general tenor of the Revised Army Regulations, printed in 1863, upon this subject, is the same as the decisions of the War Department thereon above printed. (See Army Regulations, 159-163, §§ 1064-1095.) For instance, sec. 1073 says: “ Fuel issued to officers or troops is public property for their use; what they do not actually consume shall be returned to the quartermaster and taken up on his quarterly return.” If it were their own private emolument, they would have a right to dispose of the permitted quantity at their pleasure. Sec. 1080 treats of the right to commutation: “When quarters cannot be furnished to officers at stations without troops, or to enlisted men at general or departmental headquarters, quarters will be commuted at a rate fixed by the Secretary of War, and fuel at the market-price delivered. When fuel and quarters are commuted to an officer by reason of his employment upon a civil work, the commutation shall be charged to the appropriation for the work. No commutation of rooms or fuel is allowed for offices or messes.” And section 1072 concludes with the limitation that “fuel for a mess-room shall not be used elsewhere, nor for any other purpose.” It is thus made obvious that the Department correctly construes the regulations when it holds that the quarters and fuel, whether furnished directly by the Government, or indirectly through an expenditure of the commutation-money allowed therefor, must be strictly applied to the public uses for which they are allowed, and not treated at all as the private emolument of the officer. According to the practice of the War Department those claiming quarters and fuel must apply for them. These petitioners did not apply.
    
      Mr. 3. 3. Paine for the appellee:
    The order which required the appellee to proceed to his home and await orders, and the “leave of absence,” differ'from each other in their essential qualities, at all stages, from their inception to their termination. They differ in respect of the power and duty of the superior officer to issue them, and the course of procedure prescribed for him by law, and also in respect of the preliminary steps required of the inferior officer who receives them. While they remain in operation, they differ as to the rights, privileges, and duties of the subordinate officer. And they differ in respect of the authority, means, and methods by which they are terminated.
    There is a fundamental difference of nature between a leave of absence and an order to proceed home to await orders, which of itself would exclude the construction of the War Department, placing tlie appellee in the position of an officer virtually absent on leave. The leave of absence, from its inception to the time when it expires by its own limitation, rests upon permission, not compulsion. Until such expiration the control of the officer over the duration of his absence is altogether free and unrestrained. At the outset, having received his leave of absence, he goes from his post in the Army, or, surrendering his leave of absence, remains at his post, as he sees fit; and having left his place, he remains absent until the expiration of his 'leave, or returns before its expiration, as he sees fit.' But with the order to proceed home to await orders, all this is esentially different. When the order is issued, whether with or without his consent, the officer is compelled to proceed to his home. He has no discretion in the case. He is not permitted, but commanded, to go. So he is not permitted, but commanded, to remain absent. He is not permitted to return at his pleasure, but he is compelled to remain absent until ordered to return.
    If the construction of the War Department is correct, he was to be visited with all the disabilities of a leave of absence, and at the same time robbed of all its rights and privileges. And he might be kept by the War Department in suspense for years between a leave of absence and an order to proceed home to await orders. If he should ask for commutations, the answer would be that he was on leave of absence, and therefore not entitled to commutations. If he should ask for work, sa the officer on leave of absence always may, the answer would be that he was at home awaiting orders, under an order which prohibited him from even asking for work. If he should propose to surrender his virtual leave of absence, (which the officer on leave of absence can always do,) he would be told that he had no leave of .absence to surrender, but was awaiting orders. If he should inquire when'his “virtual leave of absence” would terminate, he would be told that he would learn something on the subject when the orders which he was awaiting should reach him, or when he should be mustered out of the service, in two, or ten, or twenty years, as the case might be.
    This court held in Williamson’s case that it was not in the power of the executive department of the Government, or of any branch of it, to regulate the compensation of officers of the Army; that its regulation belonged wholly to the legislative department of the Government. The only mode in which the opinions and acts of the War Department can becomeh part of the law of the land is through regulations adopted, with the approval of Congress. Such regulations were so adopted and approved, and became a part of the law. They are subjects of judicial construction like other laws. And this court, in Williamson’s case, held the effect of these legal regulations to be precisely the reverse of that which is attributed to the illegal opinions and practices of the War Department. The attempt to subvert that which is law by means of that which is not law is unwarranted, and should not succeed.
    Under the Army Regulations of 1863, commutations of fuel and quarters are allowed only to officers at stations without troops. If it shall be held that officers separated or absent from their appropriate commands for more than six months, as, for example, colonels separated from their regiments, are not entitled to commutations of fuel and quarters, then we shall have this singular state of the law, that a colonel, while with his regiment, is debarred from these commutations, because he is serving with troops, and when away from his regiment is deprived of them because he is not serving with troops. And this absurd practical result follows, that a colonel, assigned to the most important military duty away from his regiment — to duty involving the heaviest personal expense — can only obtain the commutations which may be absolutely essential to his subsistence by making once in six months a journey of, say 2,000 miles through the scattered posts of the Territories to visit his regiment, which visit, although not entitling him to any commutations while he is making it, is supposed to have some magical efficacy to make good his title to commutations while he is not making it — to secure to him the necessary commutations when, after traveling back and fprth, at the expense of the Government, four thousand miles, he finds himself serving again, without troops, at the station from which he started.
    But if it is held that he cannot have his commutations unless once in six months he meets his regiment all assembled together, then, when his regiment is scattered, in the customary way, at different posts, remote from each other, he cannot, by any possibility, perform circus-riding enough to entitle him to commutations. If they shall be essential to his subsistence, and if his service on the special /ffity shall be essential to the interests of the country, then it will only remain for the President to assemble all the scattered fragments of the regiment together, at no matter what cost, and to hold them together long enough for the colonel to exercise for a moment his so-called “ appropriate command.” An interpretation so puerile cannot be sound.
    What, then, did Congress mean by this statute? While it certainly cannot be true that the claimant is driven to the hard alternative of either showing that Congress had in fact some well-defined meaning, and what that meaning was, or submitting to whatever construction the defendant may choose to give to the act, it is not difficult to discover a reasonable meaning for the act or its real purpose. If we give to the words “ absent from their appropriate duties with leave” the meaning of the words “ on leave of absence,” which is the only possible way in which officers can be “ absent with leave” from anything, the act will have been, not futile, but effective and useful. Its effect, too, will be reasonable, and not absurd, as it would be if the words u appropriate duties ” meant “ appropriate commands,” in the sense of regulation 1353.
    The decision of the Supreme Court in Williamson’s case is an authority for the position that the claimant was not absent from his appropriate duty with leave.
    While the appellee remained at his home at Detroit, in obedience to the orders which he had received, he was at a station without troops, in the sense of the law.
    Wherever an officer is stationed by an order of his superior officer, there is his station. The question whether-a place is a station, in the sense of the law, does not depend on the number of troops or officers stationed there. So far as that question is concerned it is quite immaterial whether an entire regiment, or only a single company, or a single officer, is embraced in the order. In either case the place is a station for -those who are there stationed.
   Mr. Justice Hunt

delivered the opinion of the court:

The present case is one of a class of which several are now pending in this court, and many more it is understood are before the Court of Claims.

The claimant was a captain of infantry in the United States Army, and on the 7th day of January, 1870, by special order from the Adjutant-General’s Office, at his own request, was ordered home to await orders. This was done by virtue of the Consolidating Act of March 3, 1869. The claimant proceeded from Fort Bridger, Wyoming Territory, where he then was, to his home in New York City. On the 28th of February, 1870, he reported as waiting orders at that place, and afterwards as waiting orders at Littleton, N. J., which was then his home.

The claim now made is -for mileage in traveling from Fort Bridger to New York, and for commutation for quarters and for fuel while thus awaiting orders.

The Court of Claims allowed the petitioner both for his mileage and the commutation for quarters and fuel during the period mentioned. The questions will be separately considered.

1. As to mileage.

Comment is made upon the circumstance that the claimant reported himself' to the Department as awaiting orders at the city of New York, on the 31st of January, 1870, specifying that place as his home, and that on the 31st of March following he reported himself at Littleton, N. J., specifying that place as his home. We see nothing in this that should prejudice the claimant’s right of recovery. New York may well have been his home in January, and Littleton his home in March. It is not extraordinary nor ground of suspicion that an officer should change his place of residence. Whether he resided in New York or in New Jersey could make no difference in his position in the Army or in his liability or readiness to respond to any orders given to him. It was indeed important that he should keep the Department advised of his residence, that he could be called upon when it was desired. This he did. The Department made no objection to this change of residence at the time, nor does it place its refusal to pay the mileage upon this ground. We think the circumstance quite unimportant.

The effect of the order to proceed to his home and there to await orders, and the difference between this status and that of an officer absent from duty with leave,” was considered by this court in The United States v. Williamson. (23 Wall. R., 411.) That decision secures to the officer his full pay while thus awaiting orders, and we find no occasion to correct anything contained in it. We are still of the opinion that the officer was not absent on leave, but that he was awaiting orders at his home. It results also from this decision that in thus proceeding to his home he was traveling under orders.

The provision relating particularly to the case we are considering is found in § 1109 of the Army Regulations, authorized and confirmed.by the Act July 28, 1866. It is there provided that “an officer who travels not less than ten miles without troops, escort, or military stores, and under special orders in a case from a superior, or a summons to attend a military court, shall receive ten cents mileage.” This means that he shall be entitled to an allowance of ten cents for each mile thus traveled. It is hardly denied that the claimant was traveling within the meaning of this regulation.

But it is contended that under regulation § 1117 the Department was justified in withholding the allowance. That regulation is in these words: “ When officers are permitted to exchange stations, or are transferred at their own request from one regiment or company to another, the public will not be put to the expense of their transportation. They must bear it themselves.” If A at one station and B at another desire to exchange stations or regiments or companies with each other, and prefer a request to that effect, the provision assumes that the commanding officer may, in his discretion, grant it, but, as no public interest is advanced by it, and it is consented to for the advantage or pleasure of the two officers, they must bear their own expense of transportation in making the exchange. This is just and reasonable.

We are inclined to think that it would be too narrow a construction of this provision to hold that it required that two officers should be concerned in the exchange. An exchange from one station to another station by the same officer at his own request, if found compatible with the public service, would be within the words of the rule, and apparently as much within its spirit as when the exchange was made by and between two officers.

But we are of the opinion that Captain Phisterer did not make an exchange of stations within the meaning of this regulation. In other words, although he left a military station at Fort Bridger, his home at Bew York, to which he went, did not become and is not to be deemed a military station. In the broadest use of language no doubt the word station means a place or position, and it may be said that wherever a man in pursuance of orders stays or remains he is stationed, and that if he is a military man such place becomes a military station. This word (station) has a recognized and a different meaning under different circumstances. It is a technical word in church regulations, in the science of ecclesiology, in the civil law, in surveying, in railroad language, and military science. (See Richardson’s and Worcester’s Dictionaries.)

A “military station”-is merely synonymous with the term “ military post,” and means a place where troops are assembled; where military stores, animate and inanimate, are kept or distributed; udiere military duty is performed or military protection afforded; where something, in short, more or less closely connected with arms or war, is kept or is to be done.

In the Army Regulations the 'two terms are often used con-yertibly. Thus, in the regulations of 1847:

If a post or station should prove unhealthy the troops may be removed, &c. (11, par. 57.)

Whenever a military post or station shall be abandoned the property should be turned over, &c. (11, par. 58.)

Commanding officers of forts and stations on the sea-coast to aid in quarantine regulations. (11, par. 61.)

The military force at any post or station in the Indian Territory shall be employed, &c, (17, par. 91.)

Whenever an officer is ordered from one station to another, or for the performance of any duty, not being with troops, he shall proceed by the most direct route without unnecessary delay ; nor is he, under any pretense whatever, except that of sudden illness, to apply for leave of absence from the time he quits the station at which he receives the order until he has arrived at his place of destination. (45, par. 227.)

Whenever such officer shall appear to have made unusual or unnecessary delay he shall immediately report the cause to the commanding officer of the post. (45, par. 228.)

It is a misuse of language to designate as a post or a military station a cottage in a country village in no way distinguishable in its use or appointments from every other residence in the village, because one of, the persons who lives in it is an officer in the Army. There was no exchange of stations by Captain Phisterer, and, therefore, nothing to except his case from the general law which allowed him mileage for his travel in proceeding to his home.

2. The claim for commutation for quarters and commutation for fuel while at New York and New Jersey is to be considered.

Among the Army Regulations established by the act of March, 1863, are tlie following, under the head of “ Quartermaster’s Department:” § 1064. “This Department provides the quarters and transportation of the Army, * * * fuel, forage,” &c. “Barracks and quarters.” § 1086. “Under this head are included the permanent buildings for the use of the Army, as barracks,, quarters, hospitals, storehouses, officers’ stables.” § 1068. “ The number of rooms and amount of fuel for officers and men are as follows: * * * Captain, 2 rooms, 1 as kitchen; cords of wood, | or 3 per' month, according to the season of the year.” § 1071. “ No officer shall occupy more than his proper quarters, except by order of the commanding officer, when there is an excess of quarters at the station.” * * * § 1073. “ Fuel issued to officers or troops is public property for their use; what they do not actually consume shall be returned to the quartermaster and taken up on his quarterly return.” § 1077-“An officer may select quarters occupied by a junior, but having made his choice he must abide by it, and shall not again at the fort displace a junior unless himself displaced by a senior.” § 1080. “When public quarters cannot be furnished to officers at stations without troops, or to enlisted men at general or department headquarters, quarters will be commuted at a rate fixed' by the Secretary of War, and fuel at the market-price delivered.” * * * § 1083. “ Officers absent from their appropriate duties for a period exceeding six months, either with or without leave, shall not receive the allowances” mentioned. § 1084. “ Officers and troops in the field are not entitled to commutation for quarters or fuel.”

The claimant bases his demand upon § 1080, above set forth. To maintain this claim it must be held that Captain Phisterer, while at his house at New York and in New Jersey, was at a station without troops. That he was without troops is plain enough, but that his home on these occasions was not a military station we have undertaken to show when considering his claim for mileage. Thesame construction of the word “ station ” which gives him his mileage cuts off his claim for commutation.

We think the regulation we have referred to was not intended for a case like that we are considering; that is, where an officer is at his own home awaiting orders and having no public duty whatever to perform.

Quarters are expected to be furnished by the Government to its officers; when it cannot thus furnish, it allows them to be obtained otherwise, and pays a money-compensation therefor, called commutation. This is upon the assumption, first, that the officers are actually engaged in the public service$ and, second, that such quarters are necessary to the discharge of their duty. It is upon the latter idea that commutation for fuel and quarters is not allowed to officers when in the field. The duty there is public not only, but of the most necessary character; still apartments, kitchen, and offices are not there necessary, and cannot be commuted for.

We are of the opinion that the claimant was not at a station, in the sense that he is entitled to public quarters, or to a compensation in the form of commutation for rooms and apartments or fuel obtained or supposed to be obtained in lieu of those expected to be furnished by the Government. In making this allowance we think the Court of Claims erred.

The briefs submitted contain suggestions of what would be the result in various cases, which, it is said, may arise under these regulations. Our judgment is intended to be given upon the precise case before us, and upon no other. Should other cases be presented, the Court of Claims will give them the attention required, as will'this court should they come here. Both courts have business enough to occupy them without anticipating cases which may never be presented.

The judgment of the Court of Claims is reversed, and the cause remanded to that court with directions to enter a judgment in favor of the claimant for the mileage and denying his petition as to the claim of commutation for quarters and fuel.

At the same time, under and in accordance with the foregoing decision, the following cases were decided: Chilson v. The United States, Rheem v. Same, Lynde v. Same, Mears v. Same.  