
    PIERCE CROSBY v. THE UNITED STATES.
    [No. 15320.
    Decided March 4, 1887.]
    
      On the defendants’ Demurrer.
    
    An officer of the Navy on waiting orders is ordered, April 1st, to “ leave the United States for your station at a elate not latter than the 1st of May next; ” steamers sail on the usually traveled route April 6, 18, 19, and via Liverpool (a much longer route) on the 26th. The officer sails by the Liverpool route, that being the last steamer sailing prior to the 1st of May. He is allowed mileage by the shorter, but now seeks to recover for the route actually traveled.
    I. By the Revised Statutes (§ 1566), as modified by the Act 30th June, 1876 (19 Stat., L. 65), mileage is allowed to naval officers. When the choice of route is left to the discretion of the officer his mileage should be calculated by the shortest usually traveled route, regardless of the distance actually traveled, unless some good reason be shown for,the deviation.
    II. An order requiring an officer to leave for his station before a designated • day does not authorize him to travel by a circuitous route if other means offer prior to the appointed day. •
    
      The Reporters’ statement of the case:
    The facts alleged in this case, the sufficiency of which was raised'by demurrer, are set forth in the opinion of the court.
    
      Mr. F. F. Dewees (with whom was Mr. Assistant Attorney-General Howard) for the demurrer:
    The Second Comptroller of the Treasury, in an opinion rendered in the case of E. Henderson, 12th June, 1882, says:
    “The ordinary rule in estimating travel pay is to estimate by the nearest usually traveled route, and the accounting officers are not authorized to depart from the rule when the order does not authorize or direct a different route of travel.”
    This rule is sustained by the decisions of this court in the cases of Perrimond (19 C. Cls. E., 509), Du Bose & Richardson (id., 514), Allderdice (id., 511), and Hannum (id., 516).
    To justify a charge for mileage it must appear:
    (1) That claimant was traveling on public business.
    (2) That he traveled by the most direct route.
    
      The order by virtue of which the journey was to be made was silent as to the route to be taken; therefore by implication claimant was directed to travel by the “most direct route.”
    The spirit and meaning of the order to him was, in substance, that within thirty days he should start by the most direct route for his destination. As he started within time named he did not violate the order literally interpreted, and could, by reason of familiar principles of law, have defended himself against any charge for disobedience of orders by insisting upon his right to a literal interpretation.
    
      Mr. John 8. Blair opposed:
    The latitude in the order was for the benefit and convenience of the officer himself, and was to afford him all the opportunity necessary to make arrangements for the disposition of his family, to close up his business transactions, and to make preparations and procure his equipment for a long journey and what would in all probability be a prolonged cruise.
    Whether the claimant was ready to leave the country on the 19th of April is as unimportant to the issue as whether he was ready on the 26th.
    If on the latter date he was unprepared he would have disobeyed by remaining; and if, on the other hand, because the vessel sailing the 19th went directly while that of the 26th sailed via Liverpool he was bound to go on the former, his un-readiness at the former date-would not have relieved him from the charge of disobedience.
    The time of his arrival at the station to which he had been assigned was of more importance to the United States than the amount of mileage involved, and yet the announcement that he reached Bio on the 9th of June was received by the Department without comment or disapproval.
    He reported that, in obedience to the order of the 1st April, he had assumed command at the South Atlantic station, and his arrival at that date was accepted by the Navy Department as obedience to its order. Inasmuch as the direct passage from Baltimore to Bio would take but thirty days, and as claimant did not report that he had disobeyed his order by leaving the country after the 1st of May, the inference to the authorities at the Navy Department was irresistible that he had taken the well-known route via Liverpool. (Allderdice v. The United States, 19 C. Cls. R., 511.)
   Scoeield, J.,

delivered the opinion of the court:

This case comes up on demurrer to the petition and involves •only a question of mileage.

In the spring of 1882 the claimant was a captain in the United States Navy, residing at Staunton, Ya. He had been on waiting orders since December 17,1880., On April 1,1882, the following order was issued to him by the Secretary of the Navy:

“ Sir : Proceed to Montevideo, Uruguay, and on your arrival •assume command of the United States naval force on the South Atlantic station, hoisting your flag on board the U. S. steamer Brooklyn. You will leave the United States for your station at a date not later than the 1st of May next.”

April 26,1882, he embarked for Liverpool and thence to Bio Janeiro, Brazil, where he. joined the fleet and assumed command June 9, 1882. He reported his arrival to the Secretary of the Navy, not stating by what route he had traveled. What knowledge the Secretary had upon the subject does not appear; nor does it appear that he expressed approval or disapproval thereon.

Steamers, in which he might have embarked, by the direct and most usually travelled route, sailed from Baltimore April 6,18,19, and May 3, and from New York April 11.

The distance by the Liverpool route is 10,066 miles and by the other 6,050. Mileage by the direct route has been paid, and this suit is brought to recover the balance that would be due him if reckoned by the Liverpool route.

By section 1566 of the Revised ^Statutes, as modified by the Act of June 30, 1876 (19 Stat. L., 65), 8 cents a mile is allowed to Navy officers, when traveling at their own expense, under orders, on public business. When only the terminus of the journey is specified in the orders, leaving to the discretion of the officer .the choice of route, his mileage, in the opinion of the court, should be calculated by the shortest usually traveled route, regardless of the distance actually traveled, unless some .good reason is shown for the deviation. (Perrimond, 19 C. Cls. R., 509 Du Bose & Richardson; (id., 514) Allderdice, (id., 511), and Hannum, id., 516.)

This, it is understood, has been the uniform practice in the Departments.

The Second Comptroller, in an opinion rendered in the case of B. Henderson, 12th June, 1882, says:

11 The ordinary rule in estimating travel pay is to estimate by the nearest usually traveled route, and the accounting officers are not authorized to depart from the rule when the order does not authorize or direct a different route of travel.”

In this case it is stated on behalf of the claimant, as a justification for taking a circuitous route, that he was not required by his orders to leave the United States until the 1st day of May, and that after the 19th day of April no shorter route was available. That is all true, but the orders authorized him to depart at any time within the month. This latitude was given him, apparently, in order that he might accommodate his departure to the sailing of steamers over the direct route and not to attend to personal affairs. He had been on waiting orders for more than fifteen months, during which time it might well have been supposed he had arranged his private business. If there had been any great necessity for his remaining in the country longer than the 19th, he might have asked the Secretary to enlarge his orders for two days and taken the steamer on May 3. The Secretary, no doubt, would have granted the request, for even then he would have reached his post of duty nine days earlier than he did by the Liverpool route.

Demurrer sustained.  