
    JOSEPH H. SUTHERLAND v. THE UNITED STATES.
    [No. 24581.
    Decided February 12, 1906.]
    
      On the Proofs.
    
    An officer in the Regular Army on duty at Plattsburg, N. V., is left there on account of sickness when his regiment is ordered to San Francisco. Subsequently, by proper authority, the department commander directs that he be sent to San Francisco, the quartermaster furnishing the transportation. The officer is furnished with transportation. He now seeks to recover mileage, deducting therefrom the actual expenses, i. a., the cost of the transportation furnished to him.
    I. The Act M March, 1901 (81 Stat. L., p. 901), provides that officers traveling, “ when authorised by lato," “ shall be paid seven cents per mile and no more; distances to be computed by the shortest usually traveled route.” The act provides that in certain cases an officer may be furnished with transportation, which “ shall be a charge against the officer’s mileage account, to be deducted at the rate of three cents per mile.”
    
    IX. Where an officer is left at his post on account of sickness and is subsequently ordered to follow his regiment to a new post, and his quartermaster is ordered to furnish him with transportation, which is done, the officer is entitled to the benefit of the statute and may recover 7 cents per mile transportation less any .payment which may have been majle by the quartermaster in connection with his travel.
    
      
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant’s regiment was ordered from Plattsburg Barracks, N. Y., to San Francisco, Cal. The claimant, being sick, was unable to travel with his regiment, and was, by proper authority, left behind. Subsequently he made the same journey, but with variations from the route of the regiment. The facts are shown by the official telegrams and orders relative thereto, as follows:
    “ Plattsburg Bks., E, Y., April 22/03.
    
    “Ad JUTANT-GENERAL,
    
      “Department of the East:
    
    _ “ Chaplain Sutherland, 23rd Infantry, left here account sickness; will be ready for duty Friday. Pvt. Harry L. Bubin, Co. B, 23rd Infantry, absent without leave since 16 inst., reported to-day; request orders.
    “ Col. Adams, Commanding.”
    “ PIdqrs. Dept, op the East,
    
      “Governor’s Id., N. Y., Apr. 23/03.
    
    “ Commanding Ofpicer,
    
      “Plattsburg Bks., N. Y.:
    
    “ Dept, commander directs Chaplain Sutherland and Pvt. Bubin should be sent to San Francisco, qrmr. furnishing transportation, by route of regiment, which will be noted and be settled by the contract for transportation, if practicable. They should reach San Francisco by April 30th.
    “ Barry, Adjutant-General.”
    “ Plattsburg, Bks., N. Y., Apr. 21/03. “Adjutant General,
    
      “Department of the East:
    
    “ Chaplain Sutherland and Pvt. Bubin, 23rd Infantry, left for San Francisco this date.
    “Adams, Gol., Commanding.”
    “ Special Orders, ) “ Plattsburg Barraoks, N. Y.,
    No. 67. [ “April 23rd, 1903.
    
    “ 1. Pursuant to telegraphic instructions from headquarters Dept, of the East,' dated April 22nd, 1903, Chaplain Sutherland, 23rd Infantry, will proceed to-morrow, the 24th inst., from Plattsburg, N. Y., to San Francisco; Cal., if practicable, arriving at latter station by April 30th, 1903, and reporting upon arrival to commanding- officer 23rd Infantry.
    “ The Quartermaster’s Department will furnish the necessary transportation by route of regiment, which will be noted and settled by the contract for transportation.
    “ 2. Pursuant to telegraphic instructions from commanding-officer, headquarters Dept, of the East, dated April 22nd, 1903, Private Harry L. Kubin, Co. B, 23rd Infantry, will proceed to-morrow, the 24th inst., from Plattsburg, N. Y., to San Francisco, Cal., if practicable, arriving- at latter station by April 30th, 1903, and reporting upon arrival to the commanding officer 23rd Infantry.
    “ The Quartermaster’s Department will furnish the necessary transportation by route of regiment, which will be noted and settled by the contract for transportation.
    “ It being impracticable for this soldier to carry rations in kind, the Subsistence Department will commute his rations in advance for eight (8) days at $1.50 per day, which will be charged against him on his next muster and pay roll.
    “ The travel directed is necessary for the public service.
    “By
    order of Colonel. Adams.
    “W. S. S.‘
    “W. S. SINCLAIR,
    
      “1st Lieut., 5th Infantry, Adjutant.”
    “ QUARTERMASTER’S OfEICE,
    
      “Plattsburgh Barraehs, N. Y., April £3,1903.
    
    “ Chaplain Sutherland, *33 Infty.:
    
    “ Transportation and one double berth furnished on this order for the within-named officer from Plattsburgh, N. Y., to Chicago, Ill.
    “ O. Edwards, 5th Inf.,
    
    
      ■ “Captain Infantry, Quartermaster.”
    “ Office of Asst, to the Chief Quartermaster,
    “ Defartment of ti-ie Lakes,
    “ Ghicago, IU., Apr. 35,1903.
    
    “ Transportation furnished on this order from Chicago, Ill., to San Francisco, Cal., via C. & N. W., U. P. and So. Pac. Bys. for Chaplain Sutherland, 23rd U. S.Tnfy. Impracticable to furnish transportation by route of regiment.
    “ W. H. Miller,
    
      “Major <& Quartermaster, U. S. A.”
    
    II. Transportation was furnished by quartermasters for the entire distance, and in addition a berth in a sleeping car as far as Chicago, which berth cost the Government $5.
    
      The Auditor for the War Department first demanded of the claimant a refund of the $5 so paid, on the ground that as the officer was traveling without troops he was entitled to mileage. Afterwards said Auditor held that the officer was only entitled to actual expenses, and therefore withdrew the demand for refund of the price of the sleeping-car accommodations.
    The distance from Plattsburgh Barracks, N. Y., to San Francisco, Cal., is 3,224 miles.
    If the claimant is entitled to mileage at the rate of 4 cents a mile for that distance, the amount would be $128.96, from which $5 should be deducted for the sleeping berth, leaving the balance of $123.96.
    . Messrs. Q-eo. A. and William, B. King for claimants.
    
      Mr. Franklin W. Collins (with whom was Mr. Assistant Attorney-General Pradt) for defendants.
   Booth, J.,

delivered the opinion of the court:

Claimant’s regiment was, by general order, removed from Plattsburg Barracks, N. Y., to San Francisco, Cal. Claimant was, by proper military authority, relieved from the operation of the general order removing his regiment and allowed to remain at Plattsburg because of illness. Subsequently he was, by Special Orders, No. 67, set out in the findings, directed to proceed to San Francisco and join his regiment. The claim is for mileage allowance under the act of March 2,1901 (31 Stat. L., p. 901), which is as follows: ,

“ For mileage to officers and contract surgeons, when authorized by law, five hundred thousand dollars :
“Provided, That hereafter officers so traveling shall be paid seven cents per mile and no more; distances to be computed and mileage to be paid over the shortest usually traveled routes, with deduction as hereinafter provided.”

An officer traveling without troops and under orders is entitled to an allowance per mile at the rate fixed by the foregoing statute. (Army Regulations, 1904, paragraph 1307.) We have no authority to arrest the operation of the statute and exclude from its privileges and benefits one who brings himself within its terms, because, under the particular circumstances surrounding the transaction, it seems inequitable. True,' the order directing the travel performed by Chaplain Sutherland recited that transportation in kind would be furnished by the Quartermaster’s Department by route of the regiment, thus evidencing an intention to preclude claim for mileage allowances. But the rule is well settled that authority to issue orders which have the force of law is subject to the condition that they conflict with no act of Congress. (United States v. Symonds, 120 U. S., 46; United States v. Strong, 125 id., 656; United States v. Barnette, 165 id., 174.)

The claimant was entitled to receive transportation from the Quartermaster’s Department, and have the amount of same deducted from the officer’s mileage account by the following proviso to the act of March 2, 1901:

“Provided further, That officers who so desire may, upon application to the Quartermaster’s Department, be furnished with transportation requests, exclusive of sleeping and parlor car accommodations, for the entire journey under their orders; and the transportation so furnished shall be a charge against the officer’s mileage account, to be deducted at the rate of three cents per mile by the paymaster paying the account, and of the amount so deducted there shall be turned over to an authorized officer of the Quartermaster’s Department three cents per mile for transportation furnished over any railroad which is not a free, bond-aided, or fifty per centum land-grant railroad for the credit of the appropriation for transportation of the Army and its supplies.”

We are therefore of the opinion that th.e claimant is entitled to recover the difference between the transportation furnished in accordance with the proviso and the amount-allowed to an officer for mileage, which, in this case, deducting allowance for sleeping-car accommodations, amounts to $128.96, for which amount judgment is awarded the claimant.  