
    William G. Temple v. The United States.
    
      On the Proofs.
    
    
      A naval officer in Washington is ordered to Rio Janeiro. Pursuant to express instructions, he takes passage in a steamer and proceeds there. Subsequently, being relieved from duty and ordered back, he returns to Washington. Be applies to the accounting officers of the Treasury, in the settlement of his accounts, for mileage. It is allowed as to his land travel but refused as to his sea travel, and instead of mileage at sea he is credited with his actual • expenses. Be receipts for this, with m express declaration in the receipt that he reserves the right to sue for mileage in court.
    
    I.Mileage -was declared illegal as to all officers and agents of tlie government by tlie Aet 16th June, 1874 (18 Stat. L., 72), lint is expressly ■ allowed to “officers of the Bavy,” “in lieu of their actual expenses,” by the Act 30th June, 1876 (19 Stat. L., 65).
    II.That naval officers are required to travel under orders across .oceans and through foreign lands was a fact well known to Congress when they enacted that “the sum of eight cents per mile shall be allowed such officers white so engaged, in lieu of their actual expenses.” Act ZOth June,. 1876 (19,Stat. L., 65).
    III.The government cannot, by buying for a naval officer traveling under orders a railroad or steamship ticket, reinstate the “actual expense” rule repealed by the Act 30th June, 1876 (19 Stat. L., 65), nor deny to. him the mileage allowed by that statute; neither can a distinction be made between travel on land and travel by sea. The statute establishes one rule — mileage for all travel by naval officers.
    
      
      The Reporters’ statement of tbe ease:
    Tbe following are tbe facts as found by tbe court:
    I. At tbe time of tbe occurrence of tbe matters hereinafter set forth tbe claimant was, and still is, a commodore in tbe Navy of tbe United States.
    II. On tbe 26th day of October, 1878, be, being in tbe city of Washington, was, by direction of tbe Secretary of tbe Navy, ordered to proceed to Bio de Janeiro, Brazil, by tbe following-written order:
    “Navy Department,
    “ Bureau oe Navigation & Oeeice oe Detail,
    “ Washington, 26 October, 1878.
    “Sir: Proceed to New York and take passage in tbe City of Bio de Janerio, which leaves on tbe 5 November next for Bio de Janeiro, Brazil, and on your arrival report to Bear-Admiral E. T. Nichols for temporary duty on board tbe U. S. str. Hartford; and should he be absent from Bio, you will repair by tbe first suitable conveyance to Montevideo, Uruguay, and report accordingly.
    “Pay-Inspector A. H. Gilman, No. 29 Broadway, New York, will secure your passage to Bio de Janeiro.
    “By direction of tbe Secretary.
    “ Bespectfully,'
    “WM. D. WHITING,
    “ Chief of Bureau.
    
    “Commodore ¥i. G. Temple, U. S. N.,
    “ Washington, JD. C.”
    
    III. In obedience to said order, tbe claimant proceeded from tbe city of Washington to New York, and took passage there on tbe 5th of November, 1878, on tbe steamer City of Bio de Janeiro, for Bio de Janeiro, Brazil; and on said steamer traveled from New York, by way of St. Thomas, Para, Pernambuco, and Bahia, to Bio de Janeiro. Not finding there the United States steamer Hartford, be sailed thence, on board a British steamer, to Montevideo, Uruguay, where be reported for duty to Bear-Admiral E. T. Nichols, on board tbe said steamer Hartford.
    IV. On tbe 31st of December, 1878, having completed tbe duty for which be was ordered by tbe Navy Department, be received from, said Bear-Admiral Nichols tbe following written order:
    
      “TJ. S. Flagship Hartford,
    
      u Montevideo, Uruguay, 31si December, 1878.
    “Commodore War. G. Temple, U. S. N.,
    
      “U. 8. Flagship Hartford, Montevideo:
    
    “Sir: Having completed the duty for which you were ordered by the department, you are hereby detached from the Hartford and wül proceed to the United States; upon your arrival proceed to your home and report in writing to the Hon. Secretary of the Navy.
    “ If upon your arrival at Eio de Janeiro you should be unable to make connection with the steamer sailing direct for New York, you are authorized at your discretion to proceed via England, thus avoiding delay and exposure to yellow fever. “Very respectfully,
    “ED. T. NICHOLS, ilRear-Admiral, U. S. Navy,
    
    “ Com’d’g U. 8. Naval Force on South Atlantic 8t’n.
    
    V. In pursuance of said order, the claimant proceeded on board a British steamer from, Monte video to Eio de Janeiro. On his arrival at the latter port he found that the steamer sailing direct for New York had. sailed the day before his arrival, and that there would be no other steamer direct for New York in less than a month from that time, and that the yellow-fever was then prevailing to an alarming extent in Eio de Janeiro; whereupon he continued on the British steamer, by way of Bahia and Pernambuco, to Lisbon, Portugal; and thence by another steamer to Bordeaux; and thence to Liverpool; and thence to New York; and thence to the city of Washington; where he arrived on the 17th of February, 1879, and reported in writing to the Secretary of the Navy.
    VI. The distance traveled by the claimant on the whole line of travel set forth in the preceding findings was 16,660 miles.
    VII. The claimant applied to the accounting officers of the Treasury for payment of mileage at the rate of eight cents per mile on the said distance of 16,6(?0 miles, which was refused, except as to the distance between the city of Washington and New York, for which it was allowed going and returning; but as to all the travel by sea, the said officers would allow him only his actual expenses. The whole amount received by him, together with that paid out by disbursing officers for his passage from New York to Eio de Janeiro and from there to Montevideo and back to Eio de Janeiro, was $609.03; of which the claimant received $327.05 and receipted therefor, with an express declaration in Ms receipt that be reserved tbe right to claim mileage im the courts.
    
      Mr. Enoch Totten for the claimant.
    
      Mr. A. E. Robinson (with whom was the Assistant Attorney-General) for the defendants.
   Braice, Ch. J.,

delivered the opinion of the court:

In deciding the question of law arising upon the foregoing facts, it does not seem to us necessary to enter upon a review of the whole legislation of Congress on the subject of the traveling-expenses' of officers of the Navy when under orders. It is sufficient to note that, prior to the Act June 16,1874 (ch. 285,18 Stat. L., 72) ten cents per mile was required by law to be allowed to officers for those expenses. By that act the allowance of mileage was entirely abrogated by the.following general provision, applicable to officers and employés in every branch of the public service:

“Provided, That only actual traveling expenses shallbe allowed to any person holding employment or appointment under the United States; and all allowances for mileages and transportation in excess of the amount actually paid áre hereby declared illegal.»

By the Act ¿Pune 30,1876 (ch. 159.19 Stat. L., 65) this provision was repealed as to naval officers in the following terms:

“ 'And so much of the act of June 16, 1874, * * * as provides that only actual traveling expenses shall be allowed to any person holding employment or appointment under the United States while engaged on public business, as is applicable to officers of the Navy so engaged, is hereby repealed, and the sum of eight cents per mile shall be allowed such officers while so engaged, in lieu of their actual expenses.»

This provision is now in force, and by its terms the rights of this claimant must be determined.

As we all know, and as Congress just as well knew when this provision was enacted, naval officers always have been, are now, and always will be, required to travel under orders, not only from point to point in the United States, but across oceans and through foreign lands'. Of course, if ordered to cross oceans in a government vessel, there would be no traveling expenses, for the government would transport them; hut if ordered to go by other than a government vessel, the government assumes the payment of their' traveling expenses, and itself, by law, declares ■what shall be allowed on that score. And when the law makes a declaration on that point, no officer can claim anything more or other than the law authorizes, nor can the accounting officers of the Treasury Department require him to accept anything less or other than just that.

The act of 187C seems to us to be a plain, direct, and unambiguous declaration as to what shall be allowed for and on account of traveling expenses. And it is all the more clear and forceful because it abolishes an existing rule and lays down a new one.' It says, on the one hand, as plainly as if in so many words, that the “ actual traveling expenses,” or, in other words, the expenses “actually paid,” shall not be an element in the allowance on the score of traveling expenses; and on the other hand, quite as plainly, that the traveling expenses shall be estimated and allowed to be eight cents per mile, “ in lieu of actual expenses.” .

Manifestly, then, if “ actual expenses” are ruled out as a basis of the allowance to an officer, they are ruled out in toto as to every part and portion of the distance traveled by him, and the mileage takes their place in toto as to every part and portion of that distance.

It follows, therefore, that the government cannot, by itself buying for him a railroad or steamship ticket for a part or the whole of the distance to be traveled, reinstate the repealed “ actual expense” rule and deny him the mileage for the distance for which it so “furnished transportation”; for there is no law for any such proceeding. The law is that he is to travel at his own expense, and when his journey is performed he “ shall be allowed” eight cents for every mile he has traveled.

Whether the mileage is more than his actual expenses has nothing to do with the interpretation of the statute. There probably never was a time when the mileage of a naval officer did not exceed his actual necessary expenses Of travel; and, presumably, that fact was well known to the Congress that enacted the existing law; and in Anew of it that law was made, and every naval officer is entitled to the benefit of it.

In our opinion there is no foundation for refusing mileage for travel by sea. The law makes no discrimination between travel ■on land and travel by sea; and it is not for us, nor for an Executive Department, to say that “ eight cents per mile ” means eight cents per mile on land but does not mean eight cents per mile on the sea. As before remarked, the Congress that made the law knew that naval officers were, and would necessarily always continue to be, ordered from the United States to every part of the globe and from every part of the globe back to the United States, and yet did not express any purpose to pay mileage by land and only “actual expenses” by sea, but provided one rule for all travel, whether by land or sea.

It follows from the views we have expressed that the accounting officers of the Treasury, in limiting the claimant, as to his ocean travel, to his “actual expenses,” and refusing him the mileage allowed by the act of 1876, erred in their view of the law, and that he is entitled to be paid the eight cents mileage for the whole distance he traveled, less, first, the amounts paid by disbursing officers for his transportation; secondly, the amount paid him on the basis of his actual expenses at sea; and, thirdly, the mileage paid him for the travel by land. The balance due him is $704.97, for which judgment will be entered.  