
    BYRON B. DAGGETT v. THE UNITED STATES.
    [No. 21495.
    Decided January 25, 1904.]
    
      On the Proofs.
    
    In addition to the regimental or line officers in the war with Spain there are a number of officers of volunteers on the general staff. These under the orders of the War Department are discharged with one or two months’ leave of absence individually by name and not by commands. The claimant, an officer on the geneial staff, is on duty in the interior of Cuba. The order of the War Department is not transmitted to him in time to secure him two months’ leave with pay. He continues on duty until, being sick of typhoid fever, he is sent to a military hospital. The result is that when he arrives at his home there remains only twenty days of his two months’ leave.
    I.The Act 20th May, 1900 (31 Stat. L., 217), provides that the previous act 12th January, 1899 (30 Stat. L., 784), shall extend to all volunteer officers of the general staff who have not received waiting-orders pay prior to discharge.
    II.The general purpose of this statutory provision was to place all staff officers who had not received leave of absence on substantially the same footing as line officers.
    III. Where a staff officer received only a part of the leave of absence which he was entitled to, he is entitled to recover waiting orders pay for the remainder of the one month or two months’ leave which it was intended he should receive. The intention of Congress was to place all officers of volunteers who served in the war with Spain as near as might be, in this matter of extra pay, upon the same footing. Peelle, J, dissenting.
    IV. It is well settled by statute, regulations, and decisions that volunteer officers and enlisted men are entitled to be paid up to the time of their discharge or muster out, and are entitled to be discharged or mustered out at the place where they were enrolled.
    V.Where a staff officer was ordered to his home, there to be discharged, he is entitled to his regular pay until the time that he reaches his home, though delayed in reaching it by sickness and detention in military hospitals.
    
      The Rejwrters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Byran B. Daggett, was appointed a second lieutenant in the United States Volunteer Signal Corps by the President of the United States on the 4th day of August, 1898, and was a commissioned officer in the United States Volunteer Army from the date of his appointment until June 2, 1899.
    II. By Special Orders, No. 191, issued from War Department, Adjutant-General’s Office, August 15, 1898, the claimant was ordered to report to acting chief signal officer, Second Army Corps, at Camp Alger, Va., for duty, and was assigned by him to the Eleventh Company, United States Volunteer Signal Corps.
    
      HI. The claimant served as second lieutenant of said company until February 10,1899, upon which date he was transferred to the Thirteenth Company, United States Volunteer Signal Corps, remaining- on duty with said company until March 7, 1899.
    IV. From January 29,1899, until April 2, 1899, the claimant served honestly and faithfulty as such commissioned offi-. cer, beyond the limits of the United States, in Cuba, performing the duties of second lieutenantj United States Volunteer Signal Corps; and from March 7 to April 2, 1899, was in command of a detachment of Signal Corps, United States Army, at Camp Columbia, Cuba.
    V. Each of said companies of United States Volunteer Signal Corps consisted of two captains, two first lieutenants and .three second lieutenants, five first-class sergeants, ten sergeants, ten corporals, and thirty first-class privates.
    Said companies were uniformed, armed, and equipped as United States soldiers, and performed military duty in the field as a part of the Seventh Army Corps in Cuba. They were drilled as cavalry, and the claimant was a mounted officer.
    VI. On the 13th of March, 1899, the claimant was on duty in the interior of Cuba, and continued on duty there until the 2d of April. On that day he was sent to the hospital at Camp Columbia, Cuba, sick of typhoid fever. On April 6 he ...was placed on the hospital ship Missouri and taken to the Josiah Simpson’s General Hospital at Fort Monroe, Va., where he remained from April 13, the date of his arrival, until and including May 11, 1899, when he was discharged from the hospital. On the 13th of May, 1899, he arrived in Buffalo, and was discharged from the service pursuant to General Orders, No. 46, and Special Orders, No. Ill, of the War Department, before set forth.' He was paid up to the 2d of June, 1899, the regular pay of his rank, and received no pay in addition thereto.
    VII. The claimant’s pay as second lieutenant (mounted), United States Volunteer Signal Corps, was $1,500 per year.
    VIII. The United States furnished claimant with transportation from Camp Columbia, Cuba, the place of his discharge, to Fort Monroe, Ya., but failed to furnish him transportation from Fort Monroe, Ya., to Buffalo, N Y., his place of residence.
    IX. The distance from Fort Monroe, Va., to Buffalo, N. Y., is 573 miles.
    X. The travel pay of the claimant under section 1289, United States Revised Statutes, for the distance of 578 miles amounts to $120.81.
    XT. No part of this sum has ever been paid to the claimant except $27.50, which was received by him for actual traveling expenses.
    
      Mr. Edward P. Oolladay fpr the claimant. Mr. Charles II. PiVbel was on the brief:
    Manifestly this extra pay was intended as a gift to be received in addition to the pay allowed to him by law up to the date of his discharge. {Semple v. United States, 24 C. Cls. R., 422.)
    Pie would have been entitled to pay to June 2, 1899, which is all that he has received, if the act of January 12, 1899, had never been passed.
    The decisions of this court and the United States Supreme Court, in the case of Emory v. United States, appear to be decisive of this case. The plaintiff was an officer in the Regular Army who held a commission and served as lieutenant-colonel in the Volunteer Army during the war with Mexico; and he brought the action to recover three months’ éxtra pay as lieutenant-colonel under the act of Congress passed July 18, 1848, as amended by the act passed February 18, 1879, which provided that officers, etc., “engaged in the military service of the United States in the war with Mexico — shall be entitled to receive three months’ extra pay.” The United States Supreme Court held that he was entitled to recover, and that the words “shall be entitled to receive three months’ extra pay ” meant the same pay he would have received if he had remained in the same service three months longer. {Emory v. United States, 19 C. Cls. R., 254; 112 U. S., 510.)
    
      
      Mr. Charles F. Kincheloe (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    It is perfectly apparent that the object of the acts in question — that is, the legislative intent — was only to insure to all officers and enlisted men of the Volunteer Army who had served honorably and faithfulty a gratuity of one or two months’ pay, by providing extra pay upon discharge for such of them — and such only — as had not received gratuity pay in the way of leave-of-absence pay, waiting-orders pay, or otherwise; and that it was not intended to provide a double gratuity in the way of extra pay to those who, like the claimant and others, had received an equivalent thereof in the way of pay for .time spent either on leave of absence or on waiting orders. Considering the language of the statutes and the evident intent of Congress above noted, together with the facts in this case, we think that the following propositions are sound and can not be successfully controverted:
    1. The act of January 12,1899, did riot originally extend to officers of the general staff, of whom claimant was one; hence claimant is not entitled to extra pay thereunder, nor to extra pay at all unless he comes within the provisions of the act of May 26, 1900.
    2. The act of May 26, 1900., granted extra pay only to such officers of the general staff as had not received “waiting-orders pay prior to discharge,” specifically excepting all officers who had received such pay; and as claimant received “waiting-orders pay prior to discharge” he is specifically excepted by the act and therefore can not be entitled to extra pay under it.
    3. Even if it should be held that the act of January 12, 1899, originally extended to officers of the general staff, claimant is no.t entitled to extra pay under it, and for the following reasons':
    First. Though technically under waiting orders during the last two months prior to discharge, he was to all intents and purposes on leave of absence on full pay, and enjoyed leave-of-absence liberty and privileges during that time, and therefore is not entitled to extra pay granted to be in lieu of just such two months’ pay without service, or gratuity pay, 'as he has received for said two months.
    
      Second. If the act of January 12,1899, originally extended to officers of the general staff, then the provisions in question of the act of May 26,1900, must necessarily be held as merely explanatory of the legislative intent in the former act; and as that intent is specifically shown by the explanatory act to have been that extra pay should not be given officers who had received waiting-orders pay, claimant, having received such pay, is yet not entitled to extra pay. And even if this provision of the act of May 26 be not held to absolutely control the interpretation of the legislative intent in the act of January 12, the two acts must at least be construed in conjunction with each other, and so construed there can be no other reasonable deduction than that the legislative intent was that extra pay should not be given officers who had already received what was intended as, and was, an equivalent thereof, whether in the way of leave-of-absence pay, waiting-orders pay, or otherwise.
    In regard to the Emory case (19 C. Os. R., 254) and the Semple case (24 C. Cls. R., 422), cited in claimant’s brief in support of the claim, they do not apply in the least here. The facts and the questions of law involved in them were altogether different from those involved in this case, as the question of the granting, receipt, or effect of gratuity pay, in any form, prior to discharge was not involved in those cases.
   Nott, Ch. J.,

delivered the opinion of the court:

When Congress convened in December, 1898, it was known to members, as to the public generally, that the War Department, at the close of the war with Spain, had anticipated the legislation which had followed all preceding wars by granting, in effect, to volunteers when mustered out of the service one month’s or two months’ extra pay according as they had served within or beyond the limits of the United States. This grant of extra pay had been indirectly accomplished by general orders directing regiments to return to the place of enrollment, and, on their arrival there, granting one month’s or two months’ leave of absence or furlough to officers and enlisted men before muster out. That is, the pay went on while the officers and men were on leave of absence. Congress, therefore, by the Act 12th January, 1899 (30 Stat. L., 784), established a future policy for the Government in such cases by providing that “all officers and enlisted men belonging to volunteer organizations hereafter mustered out of the service who have served honestíy and faithfully beyond the limits of the United States shall be paid two months’ extra pay on muster out and discharge from the service, and all officers and enlisted men belonging to organizations hereafter mustered out of the service who have served honestly and faithfulty within the limits of the United States shall be paid one month’s extra pay on muster out and discharge from the service;” and .in effect prohibited the War Department from thereafter granting leaves of absence or furlough to volunteers after reaching the place of muster out.

At a later date Congress became aware of the fact that there was a second class of officers and enlisted men who had not received the benefits of leave of absence or furlough, but who had remained in service and on dutjr up to the time of their muster out, and who, having been mustered out prior to the 12th of January, 1899, were not entitled to the benefits of the statute of that date. Manifestly such officers and men were as much entitled to the extra pay as the others. Accordingly Congress, by the Act 26th May, 1900 (31 id., 217), enacted that those who had served faithfully during, the war with Spain and had “been honorably discharged without furlough” should be paid the extra pay.

At the same time Congress was aware of the fact that there was still a third class of volunteer officers, viz, officers who had not been granted leave of absence by the War Department and who were not included in the statutory provisions herein-before quoted. These were officers of volunteers doing staff duty. As to them the orders of the War Department were in the following form:

“GENERAL Orders, “No. 46. }
“Headquarters of the Army, “Adjutant-General’s Office, “ Washington, March 13, 1899.
“By direction of the President the follo.wing-named officers are honorably discharged from the Volunteer Army of the United States by the Secretary of War, to take effect on the dates hereinafter specified, their services being no longer required:
U. S. VOLUNTEER SIGNAL CORPS.
*x* * * * *
“Second Lieutenant Byron B. Daggett, May 12, 1899.
* . * * * *
“Officers of regiments in the Regular Army will proceed to-join their proper commands. The officers who belong exclusively to the Volunteer Army will proceed to their homes. The travel enjoined is necessary for the public service.
“By command of.Major-General Miles:
“H. C. Corbin,
Adjutant- General”

(This order, in the claimant’s case, was amended by Special Orders, No. Ill, so as to take effect June 2, 1899, instead of May 12.)

Here, again, it was manifest that these officers were as well entitled as the others to the extra pay; and accordingly Congress, by the same act, provided that the act of January 12, 1899, “shall extend to all volunteer officers of the general staff who have not received waiting-orders pay prior to-discharge.”

What Congress undoubtedly intended by this was that the benefit of the act of 12th January, 1899, should extend to officers generally who, doing duty on the staff, were discharged pursuant to the general orders of the War Depart-, ment allowing them waiting-orders pay, but who had not received the intended benefit of the Department’s order. The purpose of the statute was not to provide general or permanent legislation, but to place all staff officers who had not received leave of absence and who had been discharged from the service in the manner indicated by the orders of the War Department upon substantially the same footing as those provided for bj*- other legislation.

The general orders 46, before quoted, were issued at the War Department, in the city of Washington, on the 13th of March, 1899, and they prescribe as the time when the claimant’s discharge should take effect the 12th of May. This period was one day less than two calendar months. Moreover, the order had to be' transmitted to the officer through military channels, and he was then on active duty in the interior of Cuba. Furthermore, when such an order reaches an officer so placed, it requires the order or assent of his immediate commanding officer to enable him to avail himself of it. An officer on reading a general order of this character in a newspaper could no more abandon the immediate duty assigned to him on the instant, and on his own motion, than a servant whose month or year of service has expired can throw down the reins, in the public highway and leave the horses intrusted to him to find their way home by themselves. It must, therefore, have been manifest to Congress that these orders of the War Department did not in all cases secure to these staff officers two months of waiting-orders service, equivalent to two months of leave of absence; and it must also have been manifest to Congress that some of these officers received the benefit intended by the War Department only in part. That is to say, some of them were on waiting orders at home, rendering no actual service for a fraction of a month or a fraction of two months.. Knowing these facts, Congress provided for such cases. An officer who had been on waiting-orders service for a part of the time was not to recover “one month’s extra pay” or “two. months’ extra pay,” as provided by the act of 12th January, 1899; but the pay which he should recover was to be computed “at the rate of one month’s” or of “ two months’ pay.”'

If an officer who was entitled to two months’ pay had received only one month’s, Congress intended that under this statute he should be paid the other month’s. It neither •meant that he should recover two months’ because he had been paid less than two months’, nor that he should lose one-half of what he was entitled to because he had been paid one-half of what he was entitled to. The cardinal principle of all this legislation is that volunteer officers shall receive one month’s or two months’ extra pay, either directly or indirectly, either by the payment of two months’ or one month’s pay, or an equivalent of one month’s or two months’ leave of absence, or the other equivalent of being at home on waiting orders when their time was substantially their own. Nothing can be plainer than that Congress did not intend to draw arbitrary or fanciful distinctions, but did intend to place all officers of volunteers who served in the war with Spain, as near as might be in this matter of extra pay, upon the same footing.

As has been said, the general orders of the War Department were issued in the city of Washington on the 13th of March. At that time the claimant assigned to duty was rendering service in the interior of Cuba. When and how the order of the War Department reached him does not appear, but it does appear that he continued on active staff service up to the 2d of April, when, sick of typhoid fever, he was sent to the military hospital. On the 6th of April he was transferred to a hospital ship and taken to the general hospital at Fort Monroe, where he remained until and including the 11th of May. It does not appear upon what day he arrived at his home in Buffalo; but it is a matter of common knowledge that that journey would take about two days, so that his arrival in Buffalo may be regarded as upon the 13th. Finally, he was discharged, according to the terms of .the amended order, on June 2.

On these facts it is contended on the part of the claimant that, not having been upon waiting orders for the full term of two months, he is entitled to recover the full amount of two months’ extra pay; and on the part of the defendants that, having rendered no service from the time when he went into the hospital in Cuba, he is entitled to recover nothing. From both of these views the court is constrained to differ.

The counsel for the defendants has maintained that it was not the legislative intent to provide a double gratuity in the way of extra paj^ for those who had received an equivalent thereof in the way of pay when on leave of absence or on waiting orders. The court fully agrees with this interpretation of the statute. The question then is, What was the “equivalent thereof” which this officer received?

This equivalent has been characterized on behalf of the defendants as “ a mere gratuity on the part of the War Department — as an indulgence.” So far as the defendants’ rights are concerned this is a correct characterization. The question is, What is the extent of the gratuity conferred and received?

It is well settled by statute, by regulations, by judicial decisions, that volunteer officers and enlisted men are entitled to be paid up to the time of their discharge or muster out, and that they are entitled to be discharged or mustered out at the place where they were enrolled or enlisted; and where one is not actually mustered out at the place of enrollment the same result is reached, constructively, by travel pay, or mileage, or transportation in kind, or actual expenses. Until the point is reached where an officer’s legal rights stop, the War Department has no gratuity or indulgence to confer. Paying a man what one owes him is not, in contemplation of law, a favor; delivering to a man that which is his own can never be regarded as a gratuity. Under the orders of the War Department the claimant was bound to proceed to his home, and that was the only obligation laid upon him. In some cases it might be a question whether he obeyed the order with diligence and in good faith. In this case no such question arises. He proceeded to his home in the usual manner of a sick soldier, and if his return was delayed it was not through an}T fault of his own,, but because, of a disease contracted in the service. When he reached his home he had obeyed the order and performed the duty assigned him. In the'ordinary course of military affairs he would have been discharged on that day. The fact that-the Department had ordered his discharge not to take place until the 2d of June was a thing over which he had no control and which he had no means of modifying or rejecting. But for the purposes of this action his paj’ as an officer in service must be regarded as having ceased on the day when he arrived at his home. From that time on he was enjoying the benefit of being on waiting orders and receiving waiting-orders pay. The conclusion of the court is that he is entitled to two months’ extra pay, less twenty days’ waiting-orders pay, which he has received.

The judgment of the court is that the claimant recover $166.66.

Peelle, J.,

dissenting:

I dissent from the conclusion of the majority of the court-in this case, not because I do not believe the claimant to be entitled to the benefit of the act of January 12, 1899, as amended by the act of May 26, 1900, but because he has already been paid waiting-orders pay; and if not, then ho is entitled to two months’ extra pay as provided by said act of 1899, and not for forty days.

By direction of the President the claimant, among other officers, was, by General Orders, No. 46, March 13, 1899, “discharged from the Volunteer Army of the United States by the Secretary of War, to take effect .May 12, 1899,” and in the same order the claimant was directed to proceed to his home, as he avers in his petition, the travel enjoined therefor being necessary for the public service.

There is no averment in the petition, nor is there any evidence showing or tending to show that there was any delay in receiving the said order of discharge.

The necessary effect of the order was to relieve the claimant from further military duty, and especialty as he was therein expressly directed to proceed to his home, during which period he was, by virtue of General Orders, No. 155, Headquarters of the Army, September 27, 1898, waiting ordei’s for his own convenience. Notwithstanding, the claimant was, by virtue of the order, relieved from duty and directed to proceed to his home, he, so far as the record and findings show, voluntarily remained on duty in Cuba until April 2, 1899; and then, for some reason not shown, but presumably upon the claimant’s representation that he had performed service during that period, the order discharging him was amended by Special Orders, No. Ill, Headquarters of the Army, May 12, 1899, to take effect June 2, 1899, during which time he was, by virtue of said General Orders, No. 155, on waiting orders for his own convenience. For the whole period, while so waiting orders for his own convenience, the claimant was paid prior to discharge.

The act of January 12,1899 (as correctly ruled by the W7ar Department and announced in General Orders, No. 13, Headquarters of the Army, January 17, 1899), applied only “to officers and enlisted men who belong to companies and regiments,” and not to officers of the general staff, of which the claimant was- one. Later, by the act of Ma}^ 12,1900, the act of January 12, 1899, was extended “to all volunteer officers of the general staff who have not received waiting-orders pay prior to discharge..” Hence the condition annexed to the extension of the act of January 12, 1899, to the claimant and other officers of the general staff defeats the claimant’s right to recover in this case, as he had theretofore u received waiting-orders pay prior to discharge.” That is to say, he had been paid from March 13, 1899, the date of the original order discharging him, to April 2, and from April 2 to June 2, 1899, during which latter period there can be no question but that he was on waiting orders for his own convenience.

It is no answer to say that a portion of the time the claimant was sick in hospital, as the order placing him on waiting-orders from April 2 to June 2, 1899, was not modified by the War Department, and the court has no power to do so.

By the court’s decision the claimant is given, extra pay for forty days beyond the date of his discharge notwithstanding he had received waiting-orders pay prior to discharge.

The extra pajr is a gratuity given by the Congress for honest and faithful service, and it is not for the court to extend the . gratuity beyond the clear intent of the language of the act granting it.

In my view of the case, the allowance of the claim in excess of the waiting-orders pay already received by the claimant is unauthorized, and for that reason the petition should be dismissed.  