
    Thomas F. Barr v. The United States.
    
      On the Proofs.
    
    
      Pending Ms leave of absence and wMle visiting Washington, an officer is ordered by' the Secretary of War to temporary duty there. After his leave of absence has expired, he is relieved and ordered to his proper station. He pays Ms own traveling expenses from Washington to his station, and now sues for mileage.
    
    If an officer on leave of absence be ordered to temporary drrty at a place Where he happens to be, so that the order involves no traveling to the place of temporary duty and he be kept there until after his leave of absence expires and then ordered to his proper station, he will not be entitled to mileage under General Orders 97, 1876.
    
      The Reporters'statement of the case:
    The following are the facts as found by the court:
    I. -On the 14th of June, 1877, the claimant was a major in the Army of the United States, and on duty as judge-advocate of the Department of Dakota, at the headquarters of said department, Saint Paul, Minn.
    
      II. On said 14th day of June leave of absence was granted to said claimant for one month, with leave to apply at headquarters, Military Division of the Missouri, for an extension of one month.
    III. On the 25th day of June, 1877, an extension of claimant’s leave of absence of one month was granted by the lieutenant-general comm anding the Military Division of the Missouri, making his whole leave of absence two months from June 17, 1877, expiring'August 17, 1877.
    IY. Pending said leave of absence, and while absent in Washington, D. 0., in pursuance thereof, and off duty, on the 30th day of July, A. D. 1877, the Secretary of War directed claimant to report to the Judge-Advocate-General of the Army at Washington, D. 0., for temporary duty. The folloiving is an extract from said order:
    “[Special Orders, No. 101.]
    “Headquarters oe the Army,
    “Adjutant-General’s Oeeice,
    “ Washington, July 30, 1877.
    * * * # # &
    “5. By direction of the Secretary of War, Major Thomas F. Barr, judge-advocate, now in this city on leave of absence, will report to the Judge-Advocate-General of the Army for temporary duty.
    ******
    “ By command of General Sherman.
    “E. D. TOWNSEND,
    
      ‘ ‘Adjutant- General.”
    Y. The claimant remained upon said duty, under said order, until September 4, 1877, after his leave of absence had expired, and never reverted to his condition of absence upon leave from which he was ordered to duty.
    On the 4th day of September, A. D. 1877, the claimant was relieved from temporary duty in the office of the Judge-Advocate-General at Washington, D. O., and ordered to rejoin his proper station at Saint Paul, Minn. The following is an extract from said last-named order:
    “[Special Orders, No. 188.]
    “Headquarters oe ti-ie Army,
    “Adjutant-General’s Oefioe,
    “ Washington, September 4, 1877.
    * * * * * *
    “6. By direction of the Secretary of War, Major Thomas F. Barr, judge-advocate, is relieved from temporary duty in the
    18 o o office of the Judge-Advocate-General, and will rejoin Ms proper station.
    “ By command of General Sherman.
    “E. D. TOWNSEND,
    
      11 Adjutant- General.”
    
    YI. The distance from Washington, D. C., to Saint Paul, Minn., necessarily traveled by claimant to rejoin his proper station, was 1,100 miles, for which he was entitled to mileage at the rate of 8 cents a mile, if entitled to mileage at all.
    YII. The claimant has not been paid said mileage nor any part thereof.
    Y III. Paragraph 9 of General Orders 97 of 1870 (the order governing payment of mileage accounts) reads as follows :
    “ Orders to temporary duty while on leave of absence carry mileage for actual travel from place of receipt of order to place of performance of duty and return. The duty performed, the officer reverts to status of leave of absence, with obligation to rejoin his station at Ms own expense, unless otherwise specially ordered, as=contemplated in xiaragraph 7 of this section.”
    Paragraph 7 is as follows:
    “Paragraph 1112, Revised Regulations, 1863, is modified to read as follows: Orders to an officer on leave of absence to rejoin the station or troops he left will not carry transportation or mileage unless the public service requires the performance of duty "en route, in which case the order should specify the particular duty, the necessity therefor, and the point at which the duty will commence and end.”
    
      Mr. John B. Sanborn for the claimant.
    
      Mr. A. I). Bobmson (with whom was the Assistant Attorney-General) for the defendants.
   Davis, J.,

delivered the opinion of the court:

In Juné, 1877, the claimant, a major in the Army of the United States, was stationed at Saint Paul, in Minnesota. On the 14th of that month he loft Saint Paul on a leave of absence and visited Washington. While on leave of absence at Washington, he was ordered to report for temporary duty to the Judge-Advocate of the Army, at Washington, and was detained there on such temporary duty until after the expiration of Ms leave of absence. He was then ordered to rejoin Ms proper station, and did so. Under these circumstances he claimed mileage from Washington to Saint Paul, which claim was disallowed. This suit is brought to recover it.

The second section of the act of July 24,1876, provides that “when any officer travels under orders, and is not furnished transportation by the Quartermaster’s Department, or on a conveyance belonging to or chartered by the United States, or on any railroad on which the troops and supplies of the United States are entitled to be transported free of charge, ho shall be allowed eight cents a mile, and no more, for each mile actually traveled under such order, distances to be calculated by the shortest usually traveled route.” (19 Stat. L., 100.)

When the claimant was placed on temporary duty in Washington seventeen days of his leave of absence remained. Had his time of temporary service expired before the expiration of his leave, he would have reverted to the status of leave of absence, with obligation to rejoin his station at Ms own expense. (Paragraph 9 of G. O. 97 of 1876.) Had he been ordered to rejoin his post from Washington before the expiration of Ms leave without having been assigned to temporary duty, then the order would not carry transportation or mileage (unless the public service required the performance of duty en route, which it did not in this case). (Id., par. 7.) Had he returned to his post in the usual way without special orders to do so, he in libe manner would not have been entitled to mileage.

The present case does not come within the letter of any of the prescribed rules. It is, however, clearly within the spirit. It is impossible to draw any sound distinction in principle between the present case and the case which would have arisen had the claimant been discharged from temporary duty in Washington before the expiration of his leave. He was temporarily and not permanently assigned to duty in Washington. His obligation to rejoin his post was suspended while he was on temporary duty; that duty ended, it was revived.

The regulations contemplate that the officer absent on leave for his own accommodation shall find his way bach to his post at his own expense. If the temporary use of his services during his absence at a place to which he had voluntarily taken himself were regarded as good cause for giving him mileage back to his original post, it would be allowed in every case. As it is disallowed in every case specially provided for in the regulations, we think that it should be refused in every case governed by the same principles.

The claimant’s petition must be dismissed.  