
    CHARLES W. A. CARTRIDGE v. THE UNITED STATES.
    [No. 15203.
    Decided February 11, 1889.]
    
      On the Proofs.
    
    The plaintiff is appointed captain of colored infantry by the President and ordered to report in person to General Ewing. Before he does so he is ordered by General Ewing to remain where his regiment, is enlisting and perform certain duties. Between his appointment and muster-in every company of the regiment is above the minimum.
    I. An officer appointed in the colored infantry is entitled to pay under the Acts 3d February, 1887, and 3d June, 1884 (24 Stat. L., p. 377; 23 id, p. 34), from the time when he begins to perform the duties of his office to the time of his muster-in, if the members of the command are not below the number required by law and regulations.
    II. The fact that the order appointing the officer directed him to report in person to a certain general and he failed to do so will not exclude him from the benefit of the statutes if during the interval he acted under that officer’s instructions and performed the duties of his office.
    
      
      The Reporters statement of the case :
    The following are the facts of the case as found by the court:
    I. On the 7th day of October, in the year 1864, the following letter of appointment was, by order of the President of the United States, the Senate being then in recess, issued ■and delivered to the plaintiff, Oartlidge:
    
      f{ Oapt. Charles W. A. Oartlidge,
    “ .Eighteenth Regiment United States Colored Infantry,;
    “ Sir : You are hereby informed that the President of the United States has appointed you captain in the Eighteenth Regiment, United States Colored Iufantry, in the service of the United States, to rank as such from the 7th day of October, 1864.
    “ Immediately on receipt hereof please to communicate to the War Department, through the Adjutant-GeneraFs Office, at.Washington, D. 0., your acceptance or non-acceptance of said appointment; and with your letter of acceptance return to the Adjutant General of the Army the oath herewith, inclosed, properly filled up, subscribed, and attested, reporting at the same time your age, residence, when appointed, and the State in which you were born.
    “ Should you accept, you will at once report in person, for orders, to Brig. Gen. Thomas Ewing, jr., St. Louis, Mo.
    “ Given imder my hand at Louisville, Ky., October, 7, 1864, by authority of instructions from the Secretary of War.
    “ L. Thomas,
    ; ‘■Adjutant- General.”
    It does not appear that prior to November 25, 1864, plaintiff, either in person or by writing, accepted this appointment, nor that he reported to General Ewing otherwise than as is hereinafter set forth.
    II. At and prior to the time of the issuance of the foregoing appointment the plaintiff was collecting colored recruits for service in the Army of the United States under written authority from Brig. Gen. Thomas Ewing, jr., United States Yolunteers, dated September 16, 1864, as follows :
    “ [Special Orders No. 113..]
    “Headquarters St. Louis District,
    “ Oeeioe Organization U. S. Colored Troops,
    
      St. Louis, Mo., Sept. 16, 1864. #####*#
    “ III. C. W. A. Oartlidge, citizen of Hannibal, Mo., having passed the board as captain of colored troops, is authorized to collect colored recruits and present them to the assistant provost-marshal at that point for enlistment.
    “ By order of Brig. Gen. Thomas Ewing, jr.
    “H. Hannahs,
    
      “ Lieut, and A. A. A. General..
    
    “ To Oap’t. O. W. A. Oartlidge,
    “ Hcmnibal, Mo.”
    
    From and after said 7th day of October, in the year 1864, said Oartlidge continued to collect, arm, equip, and command a company of colored troops under orders from said General Thomas Ewing, jr., and his services, and those of his said company, consisted in performing police and guard duty for the assistant provost-marshal at Hannibal, Mo., in co-operation with Col. J. T. K. Hayward, of the enrolled Missouri militia, and in guarding the railroads from guerrillas, which were at that time numerous and troublesome. He formed and maintained a picket guard on the outskirts of the town, and detailed patrols, day and night, through the streets to maintain order, posted guards and sentries over public property, organized and mounted scouts, and sent them to pick up information about the movements of guerrillas and suspected men. He also made searches of houses for Confederate mails and mail-carriers, protected railway trains, and performed many other services of a similar character, as directed by the colonel of enrolled Missouri militia commanding the district, and John F. Tyler, the provost-marshal, all of said service being performed' in obedience to orders from the aforesaid General Ewing, to whom plaintiff had been ordered by his commission to report, to whom he did report, but not in person, and who ordered him to remain in Hannibal and perform the duties hereinbefore recited.
    III. The plaintiff was mustered into the service of the United States at St. Louis, in accordance with his commission, on the 25th day of November, 1864, and has been paid for his services from that date only. The reason why he was not mustered into service before was that he had been directed to remain in Hannibal, as stated in finding ii, for the purposes therein set forth. During the entire period from October 7 to November 25, 1864, all the companies, ten in number, of the Eighteenth Regiment of United States Colored Troops, were up to the minimum then required by existing laws and regulations, but said regiment bad only six captains, including the plaintiff.
    IY. The pay and allowances of a captain of United States Colored Infantry Troops from October 7, 1864, to November 25, 1864, would have been (tax deducted) two hundred dollars and seventy-four cents ($200.74).
    Prior to November 25, 1864, plaintiff received no pay or allowances.
    
      Mr. George A. King for the claimant :
    This is a claim on the part of Charles W. A. Cartlidge, late captain Eighteenth United States Colored Troops, for payment as such from the date of his commission, October 7,1864, to the date of his muster into service, November 25,1864, under the acts of June 3, 1884 (23 Stat. L., 34), and February 3,-1887 (24 Stat. L., 377).
    It is, we submit, a clear case for the benefit of the acts. {Henry v. United States, 6 C. Ols. K>., 162; affirmed, 9 C. Cls. E., 22.)
    
      Mr. F. P. Dewees (witli whom was Mr. Assistant Attorney-General Howard) for the defendants:
    Before claimant shall be entitled to the benefits of said acts it must appear:
    (1) That at the date from which he was to take rank by the terms of his commission, there was a vacancy to which he could be so commissioned.
    (2) That at such date he was actually performing the duties of the grade to which he was so commissioned ; or
    (3) If not so performing such duties, then from such time after the date of his commission as he may have actually entered upon such duties.
    (4) That after June 30, 1863, the numbers of the commands should not be below the number required by existing laws and regulations.
    (5) That the pay and allowances actually received should be deducted from the sums to be paid under the act.
    It is conceded that there was a vacancy in the regiment to which claimant could be commissioned; that the number in a command to which he could be commissioned was not below tbe minimum, and that he received no pay for services rendered prior to November 25, 1888. But it is contended that prior to November 25, 1864, and subsequent to October 7, 1864, claimant rendered no service in the Army of the United States.
    It is possible that the service he did render was of value to the country, but it was not that kind of service for which he could claim compensation by virtue of his appointment as captain and under the acts of 1884 and 1887.
    The order of September 16, 1864, was not directed to him as captain of the Eighteenth Regiment, United States Colored Infantry. Such order was prior to appointment, and if of any force or effect, was annulled thereby.
    He disobeyed the orders contained in his appointment of October 7, 1864. He was not detailed to render the service he did render, if any, prior to November 25, 1864, by any competent authority. He was not in command of any organized soldiers prior to November 25, 1864.
    The service which he rendered was voluntary, possibly valuable, but not such as compensation could be allowed for in this case.
   Davis, J.,

delivered the opinion of the court:

Plaintiff was appointed a captain in the service of the United States and has been paid as such from the date of his muster-in; he now seeks to recover pay for the period between the date of his commission and the date of the muster into the service, relying upon the Act February 3d, 1887 (24 Stat. L., 377), which amends the first section of the Act June 3, 1884 (23 Stat. L., p. 34).

To establish his case plaintiff must show: First, that at the date from which he was to take rank by the terms of his commission there was a vacancy to which he could be appointed. It appears from the findings that there was such a vacancy. Second, that at the date of his commission he was performing the duties of captain, or, if not, he must show when he began to perform these duties. The duties performed by him during the period in question are enumerated in the findings; they were performed by order of General Ewing, to whom plaintiff had been directed to report, and consisted in organizing and drilling his men, in guarding railway trains, in scouting for guerrillas, in picketing and patrolling the town, and in protecting public property; these duties, in our opinion, were substantially the duties of a captain. Third, that the numbers of the command should not be below the number required by existing law and regulations, and they were not. Judgment for plaintiff in the sum of $200.74.  