
    JAMES T. BARKER v. THE UNITED STATES.
    [14023.
    Decided March 3, 1884.]
    
      On the Facts.
    
    Quarters aTe assigned to warrant officers on a flag-ship by the Navy Department. They prove to be uninhabitable. The commander of the squadron at their request “ detaches " the officers from the ship “with permission ” to return home. He also reports to the Secretary that he does not deem it proper to “order" them home because their quarters were assigned them by the Department, but that he has no alternative to the course pursued. The Secretary approves his action and orders that the officers “he regarded as having performed the journey under orders." They are paid their traveling expenses, but mileage is refused.
    I.Under the Aet 30th June, 1876 (19 Stat. L., p. 65, eh. 159), an officer was entitled to mileage if the cause of his travel was “public business."
    
    II.When the commander of a squadron on the high seas decides that there are no habitable quarters for certain warrant officers on their ship, and that he has no alternative save that of detaching them. “ with permission ” to return home', he not feeling at liberty “ to order " them home because their quarters had been assigned by the Department, the cause of travel was public business.
    III.Request on the part of the inferior and .permission on the part of the superior officer do not necessarily change public business into private business.
    
      The Reporters’ statement of the case:
    This action the claimant brought by the voluntary filing of his petition. The following are the material facts:
    On June 24,1879, the claimant was serving as a boatswain on board the United States flag-ship Ticonderoga, then at Jamestown, St. Helena.
    
      With three other officers he united in the following request to the officer in command of said ship :
    “ Sir: The quarters occupied by us having been condemned by survey, and as none other can be allotted for our occupation, we respectfully request that we be permitted to return to the United States, this port presenting the most favorable facilities.
    “ Very respectfully.”
    This request was forwarded to the commander of the squadron on the following day, and the following reply was returned to it:
    “U. S. Flag-ship Ticonderoga,
    “Special Service,
    “ Jamestown, St. Helena, June 28,1879.
    “ Sir : In reply to your communication of the 24th inst., you are hereby detached from the U. S. S. Ticonderoga with permission to return to the United States, and upon your arrival there you will report, either in person or by writing, to the Hon. Secretary of the Navy, Washington, D. C.
    “ As the senior of the officers permitted to return on account of quarters, you are intrusted with the papers relating to this subject, which you will please deliver to the Hon. Secretary of the Navy, by mail or otherwise.
    “ I am, very resp’ly, your ob’t serv’t,
    “ R. W. Shufeldt,
    “ Commodore U. 8. N., on Special Service.
    
    “ Boatswain J. T. Barker, U. S. N.,
    “ TJ. S. S. Ticonderoga, off St. Helena.”
    In accordance with this permission, the claimant returned to the United States. The commodore intrusted to him certain official records, with directions to deliver them to the said Secretary. He duly reported to the said Secretary, who thereupon made the following order:
    “ The orders of Commodore R. W. Shufeldt, detaching Boatswain Barker, Gunner Devlan, Carpenter Thatcher, and Sail-maker Tallman from the Ticonderoga, with permission to return to the United States and to report to the Secretary of the Navy, are approved, and these officers having returned to the United States and reported in compliance with said instructions, they are regarded as having performed the journey under orders.
    The petitioner was paid $97.22 from the public Treasury in reimbursement of the passage-money paid by him for his journey home from St. Helena. The distance from St. Helena to New York is 5,867 statute miles.
    Among the papers intrusted to the claimant by Commodore Shufeldt, and which were delivered to the Secretary of the Navy by the claimant, was the following official report:
    “ U. S. Flag-ship Ticonderoga,
    “ Special Service,
    “ Jamestown, St. Helena, June 28, 1879.
    “ Hon. R. W. Thompson,
    “ Sec’fy of the Navy, Washington, J). C.:
    
    “ Sir : I have the honor to forward to the Department the inclosed communications, which will explain themselves, viz:
    “ I. Application of warrant officers of the Ticonderoga for a survey on the quarters assigned to them on board this.ship.
    “ II. Report of a board of survey upon the quarters, with the indorsement of the commanding officer, recommending that these officers be returned to the United States in consequence of the uninhabitable condition of their quarters, as reported by the board.
    “III. Supplemental report by the medical officers of the ship.
    “IV. The request of these officers, in consequence of the report of the board of survey, for permission to return to the United States.
    “ In consequence of these proceedings I have permitted these officers to return to the United States, and report themselves, either in person or by writing, to the Hon. Secretary of the Navy upon their arrival in the United States.
    “ I did not deem it proper to order these officers home, because the quarters were assigned them by the Department, but I consider them entitled to the consideration of the Hon. Secretary of the Navy in this respect, because the quarters, after a fair and patient trial, have been found to be uninhabitable, more particularly in the climates through which we have passed and are to pass during the balance of the cruise.
    “There are no other apartments on board the ship where these officers could be accommodated, and under the circumstances I considered that I had no alternative other than the one which I have adopted.
    “ I have the honor to be, very respectfully, your ob’t servant,
    “R. W. Shtjeeldt,
    “ Commodore U. S. N., on Special Service.”
    
    
      Mr. C. F. Benjamin for the claimant.
    
      Mr. F. H. Howe (with whom was the Assistant Attorney-General) for the defendant.
   Nott, J.,

delivered the opinion of the court:

The “Act 30th June, 1876 (19 Stat. L., p. 65, ch. 159), provided that any person holding employment or appointment under the United States while engaged on public business” should be reimbursed his traveling expenses, and that that reimbursement should be in the form of mileage. If the cause of these warrant officers’ travel was “public business” they were entitled to reimbursement, and should recover their mileage less whatever amount may have been paid them. (Temple’s Case, 14 C. Cls. R., 377; 105 U. S. R., 97.) If the cause of their travel was private business they should have borne their own traveling expenses and should not have been paid anything, and may be liable to refund the money which has been paid to them.

The cause assigned by Commodore Shufeldt was that their quarters, after a fair and patient trial, had béen found to be •uninhabitable, that there were no other apartments on board the ship where these officers could be accommodated, and that under the circumstances he considered- he had no alternative other than the plan which he adopted, viz, that of sending the officers home.

When a commodore upon the high seas decides that he has no place for warrant officers upon his ship, and no alternative save that of sending them home, we think it apparent that they ■have no alternative save that of coming home and that private business was not the cause of their traveling.

We attach but little weight to the form of the transaction. It is true that there was “request” on the part of the officers, and “ permission” on the part of the commodore. But request and permission do not necessarily change public business into private business. An officer in time of war may “request” leave to cut out an enemy’s vessel and “ permission” may be granted him to do so, yet his expedition could not be designated as private business and his service would be quite as meritorious as if done under the most positive orders.

The form of this transaction, moreover, is satisfactorily explained by Commodore Shufeldt. He did not deem it proper “to order these officers home,” inasmuch as the quarters had been assigned to them by the Department. Official etiquette forbade that he should revoke the order of the Department, but the circumstances, in his judgment, required that he should send the officers home and leave the matter to the consideration of the Secretary of the Navy. The Secretary immediately approved the order of Commodore Shufeldt, recognized the fact that the officers had traveled in consequence of those orders, and directed that they should be regarded as having performed the journey under orders.”

The judgment of the court is that the claimant recover of the defendants the sum of $372.03.  