
    MORRISON’S CASE.
    John T. Morrison v. The United States.
    
      On the Proofs.
    
    
      hi June, 1875, a first lieutenant of cavalry is appointed, toith the approval of the Secretary of War, regimental quartermaster. Subsequently he is “assigned, to duty as assistant commissary.” He discharges the duties of both offices, quartermaster and commissary, but is paid only as regimental quartermaster. He claims the pay of $100 a year, given by the Revised Statutes (§ 1261) to an acting assistant commissary, in addition to thepay of his rank. The defendants insist that the higher pay given to regimental quai-termasters ($1,800 instead of $1,600 given to other first lieutenants), and the provision of the Army Regulations (No. 1345)prohibiting “pay for two staff appointments for the same time,” constitute a defense.
    
    I. The Revised Statutes (§ 1102, 1261) provide that “quartermasters of each regiment [of cavalry] shall be extra lieutenants,” and that their pay shall he $1,800. This constitutes the “pay of their rank,” within the meaning of the provision (§ 1261) that an acting assistant commissary shall receive $100 a year in addition to the “pay of Ms rank.” (Affirmed, post.)
    
    II. A regimental quartermaster assigned hy the commander of the regiment to special duty as acting assistant commissary is not holding two staff appointments at the same time within the prohibition of the Army Regulations (No. 1345), that “no officer shall receive pay for two staff appointments for the same time.” (Affirmed, post.)
    
    III. An order assigning an officer to duty as assistant commissary of a post is not an “ appointment" to a staff-office, but an assignment to special duty.
    IV. The provision of the Revised Statutes (§ Í261)' allowing $100 a year to an acting assistant commissary in addition to the pay of his rank does not establish the office of assistant or acting assistajjt commissary of a post or regiment. . The staff officers of the commissary department are designated by § 1140, and none are assigned to regiments.
    
      V. Tile Mstory and operation of the Army Regulations, 1863, reviewed.
    YI. The Army Regulations made in 1861, and confirmed hy Congress in 1866 do not control an express statutory provision enacted in 1870, and still found in the Revised Statutes. (Affirmed, post.)
    
    
      The Reporters’ statement of tbe case:
    The court found the following facts:
    1. The claimant was appointed by the President, by and with the advice and consent of the Senate, first lieutenant in the Tenth Regiment of Cavalry, June 11, 1868.
    2. On the 31st of May, 1875, he was appointed regimental quartermaster, by the following order:
    [“General Orders No. 5.]
    “Headquarters Tenth Cavalry,
    
      "Fort Concho, Texas, May 31,1875.
    “First Lieut. John T. Morrison, 10th Cavalry is, subject to the approval of the Secretary of War, hereby appointed regimental quartermaster (vice Beck, resigned), to take effect January 1,1875.
    “By order of Col. B. H. Grierson.
    “S. L. WOODWARD,
    
      “1st-Lieu. 10th Ctwalry, Adjutcmt.”
    
    This order was approved by the Secretary of War June 14, 1875,- to take effect when said Morrison should report for duty in person; and he reported and was assigned to duty June 30, 1875.
    3. On the 22d of October, 1875, he was ordered to act as assistant commissary by a general order, of which the following is a copy:
    [“ General Orders No. 26.]
    “Headquarters Fort Concho, Texas,
    “ October 22,1875.
    “First Lieut. J. T. Morrison, regimental quartermaster 10th Cavalry is, in addition to his other duties, hereby assigned to duty as assistant commissary of post, relieving 1st Lieut. Charles L. Cooper, 10th Cavalry, to whom he will receipt for all public funds, property, &c., for which he is responsible. This transfer to date the 31st instant.
    “By order of Col. B. H. Grierson.
    “CHARLES L. COOPER,
    “1 st Lieut. Cmalry, Post Adjutmt.”
    
    
      4. Under said G-eneral Order No. 26, said claimant performed duty as acting assistant commissary from November 1, 1875, to and including February 28,1877.
    5. Tbe claimant bas been paid bis salary as regimental quartermaster, but bas been paid nothing for tbe additional duties jierformed by bim as acting assistant commissary.
    (And, at tbe request of tbe claimant:)
    6. On tbe 30tb of June, 1875, Levi P. Hunt, second lieutenant Tenth Cavafry, was promoted to be first lieutenant in that regiment, in place of First Lieut. John T. Morrison, appointed regimental quartermaster, and was commissioned accordingly.
    
      Messrs. Paine & Grafton for tbe claimant.
    
      Mr. A. D. PoMnson (with whom was tbe Assistant Attorney-General) for tbe defendants.
   Richardson, J.,

This case is understood to be a class case, tbe final decision of which, settling tbe construction of a statute under which many officers of tbe Army are paid, renders it of importance to others than tbe present claimant, and involves pecuniary interests beyond tbe amount here in controversy.

Tbe claimant was regimental quartermaster of tbe Tenth Regiment of Cavalry, and as such officer received tbe salary of' $1,800 a year, to which be was entitled by Revised Statutes,, § 1261.

On tbe 22d of October, 1875, be was assigned to duty as assistant commissary of post, “in addition to bis other duties,” and was made responsible for all public funds, property, &c., which be should receive in that capacity; and by virtue of that assignment be served as acting assistant commissary from November 1,1875, to February 28,1877. For tbe performance of tbe additional duties to which be was thus assigned be bas not been paid, and now brings this action to recover payment therefor at tbe rate of $100 a year, under tbe provision of tbe Revised Statutes, § 1261, allowing that compensation to an acting assistant commissary in addition to tbe pay of bis rank.

On tbe part of the United States two objections to the claimant’s right of recovery are presented, and upon those objections the defense of the case rests.

' First. It is contended that the pay of the claimant’s rant was 11,600 a year, and that as he has received $1,800 as quartermaster, he has already been paid more than he would be entitled to by adding the $100 allowed for his services as acting assistant commissary to the pay of his rank.

Second. The Army Regulations, published in 1863, article No. 1345, p. 351, provided that “no officer shall receive pay for two staff appointments for the same time,” and it is insisted that the claimant was holding a second staff appointment in performing the duties of assistant commissary, for which, by that regulation, he was excluded from having any compensation in addition to his salary as a staff officer under his appointment as a regimental quartermaster.

We are all of opinion that neither of these grounds of defense is tenable.

The Revised Statutes, in § 1102, provide that “the adjutant and the quartermaster of each regiment [of cavalry] shall be extra lieutenants, selected from the first or second lieutenants of the regiment,” and the claimant was so selected.

Ey § 1261 there are several grades of pay for lieutenants: First lieutenant, mounted, $1,600; not mounted, $1,500. Second lieutenant, mounted, $1,500; not mounted, $1,400. Regimental quartermaster (who is an extra lieutenant), whether first or second lieutenant, and whether mounted or not mounted, $1,800.

The claimant was entitled to and received no other “pay of his rank” than that allowed to him as quartermaster — $1,800 a year; not $1,600, as first lieutenant, mounted, and $200 extra for additional services as quartermaster, as claimed by defendants.

The compensation of quartermaster is, by statute, a fixed salary, an entire sum, allowed to his rank, according to the duties which he is appointed to perform.

' Ei like manner, by the same section of the Revised Statutes, a first lieutenant, nnmounted, is allowed $1,500, and mounted, $1,600; not $1,500 as the pay of his rank as first lieutenant, with $100 extra for being mounted. And the same difference of salary is made between second lieutenants mounted and those not mounted. And' so, if either becomes a quartermaster, he is an extra lieutenant, and a still different salary is allowed to Mm. In either case the amount is not made up of items, but is one indivisible sum, the pay of Ms rank

Before the passage of the Act of July 15,1870, chapter 294, section 24 (16 Stat. L, 32Ó), now Revised Statutes, § 1261, above cited, quartermasters were not paid as they now are, but received, first, fixed salaries as subalterns, with $5 o'r $25, or $10 and forage, or $10 and forage for two horses, montMy, in addition to their “regimental pay,” or “pay in the line.” [Act of April 30, 1790, ch. 10, secs. 5, 6, 1 Stat. L., 120; Act of May 30? 1796, ch. 39, sec. 12,1 Stat. L., 484; Act of March 3,1799, ch. 48, 1 Stat. L., 750; Act of February 11, 1847, ch. 8, secs. 4, 9 Stat. L., 124.) And the arguments for the defendants are founded entirely upon departmental rulings, wMch were established (whether correct or not, it is unnecessary now to determine) under laws wMch are no longer in force, and which have given place to a new policy by the law-making power as to the pay of quartermasters, making it a fixed salary attached to their rank and appointment, instead of a rate ,of pay made up by computation for separate services, and without any additional compensation as such for the performance of their distinct duties as quartermasters as before.

As to the Army regulation that “no officer shall receive pay for two staff appointments for the same time,” we are of opirnon that it has no application to such a case as tMs of the claimant, who neither held nor claimed the pay of two staff appointments, There is no such staff officer, attached to a regiment or post or elsewhere in the Army, as “assistant commissary,” whose appointment is provided for by law; while the statutes are explicit as to what officers the Army shall consist of. (Rev. Stat,, §51094-, 1110.

Section 1140 of the Revised Statutes provides for a subsistence department, to consist of one commissary-general, four assistant commissaries-general, and sixteen commissaries, with dif-. ferent rank, from captain to brigadier-general, and they all belong to the general staff of the commander-in-chief, and none are assigned to regiments. (Rev. Stat., § 1102.)

Nor did the claimant have any appointment as “assistant commissary.” By that designation he was assigned, to special duty by the commander of Ms regiment; that is, was detailed to assist the commissaries; but that did not constitute him a. staff officer on tbe general staff of the commander-in-chief in the Commissary Department, nor give him a staff appointment in his regiment, which is not by law entitled to an assistant commissary. He held but one staff appointment, that of quartermaster, and the fact that he was assigned to perform some of the duties of another staff officer of much higher rank and pay did not place him in the position of holding two staff appointments.

The statute provision in Revised Statutes, § 1261, allowing $100 a year to an acting assistant commissary in addition to the pay of his rank, does not establish the office of assistant or acting assistant commissary, in the absence of any other provision for the appointment or assignment to duty of such an officer. The amount of compensation would seem sufficiently to indicate that such was not the intention of Congress.

The Army Regulations relied upon by the defendants were approved by the President and promulgated by the Secretary of War August 10,1861, and were published with additions and alterations in 1863. By the Act of July 28, 1866, chapter 299, section 37 (14 Stat. L., 337), Congress directed a new code to be prepared and reported; “the existing regulation to remain in force until Congress shall have acted on said report.” A report was subsequently made, but never acted upon.

When the Revised Statutes were framed, section 37 of act of 1866, ch. 229, was omitted, while the rest of the act, or all that was supposed to be in force, was incorporated therein. By section 5596 of the revision it is provided that “all acts of Congress passed prior to said 1st day of December, 1873, any portion of which is embraced in the revision, are hereby repealed.” And by the Act of March 1, 1875, chapter 115 (18 Stat. L., 337), the President is authorized to make and publish regulations for the government of the Army in accordance with existing laws.

What is the present status of these regulations, and whether or not they now have the force of law, it is not necessary to decide, because, in our opinion, the one relied upon by the defendants does not apply to the claimant’s case, and if so intended when made in 1861 or when confirmed by Congress in 1866, it would not control an express provision of statute enacted in 1870 and still found in the Revised Statutes.

For such additional duties, involving great responsibilities and risks as those to which the claimant was assigned as “ acting assistant commissary,” tbe statute expressly allows a compensation at tbe rate of $100 a year, and tbe claimant will bave judgment for $133.33.

Losing-, J.,was not present when tbe decision was announced, but took part in tbe consideration of tbe case and concurred in tbe opinion.

Nott, J., was not present when tbe case was submitted, and took no part in tbe decision.  