
    JOHN K. MITCHELL V. THE UNITED STATES.
    [No. 14543.
    Decided April 29, 1889.]
    
      On the Proofs.
    
    A lieutenant in tlie Navy during the Mexican tvar is ordered to duty at the naval rendezvous at Philadelphia. It does not appear what was .the character of the duty performed by him.
    I. The Act 19th February, 1879 (20 Stat. L." 316), which extends the three months’ extra pay given to soldiers engaged in the Mexican war, to the officers, seamen, and marines of the Navy “ employed in the prosecution of said war,” in effect restricts the extra pay to those who were employed in service which immediately or prospectively would expose them to danger or hardship; and does not extend to those employed in ordinary duties which would not subject them to these incidents of actual servioe.
    II. An officer in the Navy doing shore duty at a naval rendezvous, the character of the duty not appearing, isinot entitled to the extra pay.
    
      The Reporters statement of the ease:
    The following are the facts as found by the court:
    ' I. The claimant was a lieutenant in the Navy when, on the 23d of February, 1847, he was ordered to duty at the naval rendezvous, Philadelphia, Pa. He was detached from that duty December 1,1848.
    II. It does hot appear what was the character of the duty performed by claimant during the period of his service at Philadelphia.
    III. The records of the Navy Department show that there were a number of men shipped at the naval rendezvous at Philadelphia in the years 1847 and 1848 who served on board vessels attached to the home squadron during the war with Mexico, and that the U. S. S. Germantown and Scorpion were fitted out at Philadelphia for service in said war.
    IY. The claimant has received no extra pay under the acts of July 19, 1848 (9 Stat. L., ch. 29, § 5, p. 248), and the act of February 19, 1879 (20 Stat. L., 316).
    
      Mr. A. M. McBlair for tbe claimant:
    The view of the accounting officers that only those naval officers serving on vessels at the seat of war are entitled to this extra pay is a narrow, rigid, and erroneous construction of the act, which is calculated to do injustice to a number of officers who rendered valuable and essential aid to the Government in the prosecution of the war with Mexico at návy-yards and other stations during that period.
    The Government has already recognized the service of the claimant as that of one engaged in the Mexican war by bestowing upon him a bounty-land warrant for that service, and the accounting officers have established a precedent for the payment of this claim by settling similar claims for extra pay of Army officers engaged upon recruiting service at points equally remote from the seat of war as iu this instance, and there can exist no reason for any distinction to be made between Army and Navy officers engaged on similar duty.
    
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Richardson, Ch. J.,

delivered the opinion of the court:

The claimant brings this action to recover three months’ extra pay as lieutenant in the regular Navy on account of his service on duty at the naval rendezvous at Philadelphia during the Mexican war, under the provisions of the Act of July 19, 1848 (9 Stat. L., ch. 104, § 5, p. 248), and the Act of February 19, 1879 (20 Stat., 316, ch. 90).

The former act allows to certain officers, non-commissioned officers, and privates “engaged in the military service of the United States in the war with Mexico * * * three months’ extra pay: * * * Provided, That this provision of this fifth section shall only apply to those who have been in actual service during the war.”

The latter act directed the Secretary of the Treasury to pay to the officers and soldiers engaged in the military service of the United States in the war with Mexico the three months’ extra pay provided for by the Act of July 19, 1848, “ and tbe limitations contained in said act” with this provision added: 7

uProvided, That the provisions of this act shall include also the officers, petty officers, seamen, and marines of the United States Navy, tbe Revenue Marine Service, and the officers and soldiers of the United States Army employed in the prosecution 0/ said war.'1’.

Those acts have received a full analysis and exposition from this court in the case of Emory, reported in 19 Court of Claims Reports, 254, and it is unnecessary to go over the whole subject again.

In our opinion, taking the two acts together, the claimant is not entitled to recover' the three months’ extra pay thereby allowed unless the facts show that he was engaged in the naval service of the United States in the war with Mexico, was em- . ployed in the prosecution of said war, and was in actual service during the war.

It is apparent that Congress intended by the second act, so for as it relates to the regular Navy, to restrict its bounty to those officers and men who were employed in such service as exposed them, either immediately or prospectively, to danger, risk, or hardship, incident alone to the Mexican war, by actual service therein, to the exclusion of those who, while in the naval service and employed in their ordinary duties, were not in any way subject to those incidents.

The claimant, being a lieutenant in the regular Navy, was required to perform such naval service as should be imposed upon him by his superior officers. He could hardly have found any duty in the Navy more safe for keeping out of danger from actual service in the prosecution of the war than that of the undefined shore duty at the naval rendezvous at Philadelphia to which he was ordered, considering that the war with Mexico was exclusively a war of invasion of that country by the United States.

The claimant is not entitled to recover, and his petition must be dismissed.  