
    CARPENTER’S CASE.
    James N. Carpenter v. The United States.
    
      On the Proofs.
    
    
      A naval paymaster on duty at the Pensacola yard is ordered by the Secretary of the Navy, “in addition to yonr present duties you will take charge of the accounts of the iron-clads at Pensacola.” The iron-clads are im commission for sea-service, but cure not on actual sea-service, being temporarily at anchor off the yard. The claimant bvps a refrigerator by order of the commanding officer, but without advertisement or certificate that an exigency exists.
    
    I. A naval paymaster on shore-duty at a navy-yard is not entitled to pay for sea-duty, though required hy the Secretary of the Navy, in addition to his regular duties, to take charge of the accounts of certain iron-clads temporarily at anchor off the yard and in commission for sea-service.
    II. Where a naval paymaster buys an article for the service under instructions of his commanding officer, hut without advertisement, and pays the price out of public funds in his hands, he is entitled to be credited ■for the item; and if the accounting officers refuse to credit it and the amount is withheld from his pay, he may maintain an action for it.
    
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts as found by tbe court:
    I. Tbe claimant was appointed paymaster in the Navy September 13,1860, and pay-inspector June 1,1871, from March 3, 1871; which office be bas held continuously since March 3,1871.
    II. On tbe 5th day of December, 1874, claimant was ordered to report to Oapt. A. A. Semmes, then commandant of tbe navy-yard at Pensacola, by tbe 1st day of January, 1875, for duty at that yard, as tbe relief of Passed Assistant Paymaster J. W. Thompson, wbo bad been previously attached to saidnavy-yard in a similar manner, and was detached therefrom by the order of December 5,1874. The claimant reported at the yard January 5,1875.
    III. On the 6th day of May, 1875, the following ord^r was issued to claimant:
    “Navy Department,
    “Bureau oe Navigation and Office of Detail,
    “ Washington, May 6th, 1875.
    “Sir: In addition to your present duties, you will take charge of the accounts of the iron-clads at Pensacola, vice Assistant Paymaster J. W. Jordan, detached.
    “By direction of the Secretary.
    “ Bespectfully,
    “Dan’l Ammen,
    “ Chief of Bureau.
    
    “Pay-Inspector J. N. Carpenter,
    
      “Navy-Yard, Pensacola, Fla.”
    In obedience to this order, on the 14th day of May, 1875, the claimant, being then on duty at the navy-yard as paymaster, took, chafge of the accounts of the iron-clads Ajax, Mahopac, Saugus, and Manhattan, in the place of said Jordan, who had been previously attached to said vessels. Said vessels were then in commission for sea-service, and were in such commission during the period, claimant was in charge of their accounts, from the 15th day of May, 1875, to the 31st day of July, 1875, but they were not then on any actual sea-service, but were temporarily at anchor at the navy-yard. During the same period the accounts for said vessels were kept and the pay and rations drawn at the paymaster’s office in the navy-yard, and the claimant continued to act as and was the paymaster on duty at said navy-yard.
    TV. The claimant received “shore-pay” only while in charge of said iron-clads from May 15 to July 31,1875, a period of 78 days. The difference between “sea-pay ” and “shore-pay” for said period of time is $256.44.
    Y. On the 22d day of June, 1875, while claimant was on duty as paymaster at said navy-yard, and was in charge of the accounts of said iron-clads, a medical survey was held on him, in obedience to the order of Commodore Cooper, commanding at Pensacola navy-yard, which board recommended that claimant be relieved from duty and sent to a northern climate as soon as possible.
    The report of this survey was approved by Commodore Cooper June 22,1875, and the claimant was admitted to the naval hospital at Pensacola, Fla., July25,1875, and discharged to the naval hospital at Washington, D. 0., July 28, 1875, and remained under treatment at said last-named hospital until the 27th day of October, 1875.
    The following is a copy of the order detaching the claimant from said navy-yard. No order was ever, issued attaching him to the iron-clads, and no order was ever issued detaching him from them.
    “Navy Department,
    “Bureau op Navigation & Oppice op Detail,
    “ Washington, 2d July, 1875.
    “ Sir : On the reporting of your relief, Passed Assistant Paymaster Jno. MacMahon, you will transfer to him the public property, accounts, and money in your charge, regard yourself detached from the navy-yard, Pensacola, settle your accounts, and on the expiration of the period allowed for this duty wait orders.
    
      “ By direction of the Secretary,
    “ Respectfully,
    “Dan’l Ammen,
    “ Chief of Bureau.
    
    “ Pay-Inspector Jas. N. Carpenter,
    
      “Navy-Yard, Pensacola, PlaJ’
    
    VI.The said Assistant Paymaster J. W. Jordan received sea-pay while attached to the iron-clads at Pensacola navy-yard. He had not been on board said vessels prior to their arrival at that place, nor did he remain on board of either of them, but lived and slept on shore during the whole period of time he was attached to said vessels.
    VII. Officers of the Navy attached to vessels in commission for sea-service, lying in ports of the United States, are permitted to live on shore, provided it does not interfere with their duties and provided the commanding officer of the vessel allows it.
    VIII. While claimant was under treatment at the naval hospital at Washington, D. C., he was paid as follows:
    August 1 to August 30, at $3,200 per annum. $263 01
    September 1 to September 13, at $2,700 per annum... 92 60
    September 13 to October 27, at $2,800 per annum .... 345 21
    Total 700 82
    
      From October 27 to November 26,1875, tbe claimant received pay at tbe rate of $2,800 per annum.
    IX. Tbe following regulations of tbe Navy Department were in force during tbe whole periods referred to in findings II, III, IV, V, and VI, respectively:
    “825. Duty on board a sea-going vessel of tbe Navy in commission, on board a practice ship at sea, or on board a coast-survey vessel actually employed at sea, will be regarded by tbe department as sea-service.
    “ 1509. Tbe sea-pay of officers will commence when they report for duty on board a sea-going vessel, under tbe authority of tbe department, which is in accordance with tbe law.
    “ Sea-service is not to be credited to an officer except when be is performing duty under orders from tbe department, as part of tbe complement of a vessel of war, belonging to tbe Navy, in commission for sea-service; and when attached to tbe Coast-Survey for tbe time only that be is actually afloat. No credit is to be given for service in revenue or merchant vessels.”
    X. Tbe claimant was paid tbe “ other duty” pay to which be was entitled for thirty days after being detached from tbe navy-yard to settle bis accounts. He was allowed such pay from August 1 to August 30. He filed bis final account September 21,1875.
    XI. During tbe month of May, 1875, tbe claimant purchased, in tbe open market, two refrigerators, on tbe certificate of tbe commandant that a public exigency required their immediate delivery. He credited himself with these purchases in bis account-current for tbe quarter and was allowed for their cost. During tbe same month of May be paid for another refrigerator, purchased in open market by order of tbe commanding officer, but without a certificate that tbe public exigency required tbe immediate delivery, and took tbe following voucher therefor:
    “Pensacola, May 15, 1875.
    “ U, S. Wavy Department,per United States navy-yard, Pensaeola, to JI. W. Soria, Dr.
    
    “ Bureau Yards & Docks. Appropriation: General maintenance. '
    1875.
    May 15, 1 refrigerator, delivered at Fort Barrancas, Fla.. 40
    Forty dollars..... 40
    “Note. — Tbe officer requiring tbe articles will certify on tbe face of tbis bill that they have been received on board in good order.”
    “Approved for forty dollars-cents, and Paymaster J. N.
    Carpenter is hereby ordered to pay the amount.
    “G-. H. Cooper,
    
      u Commanding Officer.”
    “Deceived, May 15,1875, of Paymaster J. N. Carpenter, U. S. Navy, the sum of forty dollars and no cents, in full of the above bill.
    “ H. N. Soria.
    “A true copy.
    “S. J. W. TABOB, Auditor.”
    (Indorsed:) Cash voucher No. 146. May 15, 1875. $40.00. Bureau Y’ds & Docks. Appropriation: G-en. maintenance. IT. S. N. y’d, Pensacola. J. N. Carpenter, paymaster.
    XII. The claimant did not credit himself with the purchase of the said last-named refrigerator in his next account current. Some months after the rendition of his accounts of the Pensacola navy-yard, he presented the voucher therefor with a request for a credit thereon. His request was refused, and he has never been allowed or paid therefor.
    
      Mr.B. F. Grafton for the claimant.
    
      Mr. A-. D. Robinson (with whom was the Assistant Attorney-General) for the defendants.
   Davis, J.,

delivered the opinion of the court:

On the first branch of this case the only question is whether the claimant should be paid from May 14 to October 27, 1875, as on sea-duty or as on shore-duty. The salary of a pay-inspect- or, the claimant’s rank when “on duty at sea,” is greater than when “ on shore duty.” (Rev. Stat., § 1556.) The statute provides that “no service shall be regarded as sea-service except such as shall be performed at sea.” (Ib., § 1571.) The Navy regulations in force at that time regarded officers as on sea-duty and entitled to sea-pay only when forming part of the complement of a vessel which was in commission for sea-service.

The claimant was on duty at the Pensacola navy-yard as pay-inspector from January 5 to July 31, and was in hospital, on a medical survey, from July 31 to October 27,1875, part of the time in Pensacola, and part of the time in Washington. On the 14th of May, 1875, Paymaster Jordan, who had been attached to four iron-clads (which were then at anchor at that navy-yard in commission for sea-service), was detached from them, and the claimant, under orders, took charge of their accounts. Up to the 31st of July he kept the accounts of the vessels as well as the accounts of the yard, and made the payments and allowed the rations for the former from his office at the navy-yard. If these facts constituted him an officer “on duty at sea,” he is entitled to all he claims on this branch of his case, whether at the yard or in the hospital, or for the extra ration. We think that he was not “on duty at sea” during that time. After he took charge of the accounts of the vessels, he remained subj ect to the discipline of the yard, not of the ships. He was not part of the complement of the service of the latter, but of the former. If he had applied to the commander of the vessels for leave to reside on shore, that officer would undoubtedly have said, “Ihave no right to grant or refuse such permission. You are not part of my command.”

In the second branch of his case the claimant demands payment of $40, the price of a refrigerator, which was bought by him by order of the commandant of the yard, for the use of one of the forts, but without advertisement, and without a certificate of exigency. The claimant accidentally omitted it in his next account. On his subsequently presenting it, the accounting officer refused to allow it. The question raised by the government is disposed of by Speed's Case (8 Wall., 83), where it is held that when a discretion to dispense with advertising is conferred upon an officer, and a contract is made in which the discretion is exercised, the validity of the contract does not depend upon the degree of wisdom which may have accompanied its exercise; and by Clarke's Case (95 U. S., 539), in which the Supreme Court decided that when a contract, made in violation of mandatory provisions of law, has been executed, the party performing will be entitled to recover the fair value of the property or services.

A claim for “other duty” pay, which formed a third branch of the case in the claimant’s brief, appears to be abandoned by the stipulation of the parties, which is embodied in finding X, and which was filed after submission of the case.

Judgment will be entered for the claimant for $40.  