
    WALTER F. SMITH v. THE UNITED STATES.
    [No. 30245.
    April 1, 1912.]
    
      On the Proofs.
    
    The “ second leader ” of the Marine Band is entitled by statute to the pay and allowances of a sergeant major. He applies to the commanding officer of the Marine Barracks for quarters. There being no room in the barracks available, his application is refused.
    I.Commutation for quarters, fuel, and light not furnished, to an officer or enlisted man can not be paid unless authorized by some statute or regulation; i. e., the right to commutation does not arise automatically but must be based upon some specific provision of law.
    II.Commissioned officers of the Army on duty where quarters can not be furnished are entitled to commutation by virtue of the Army Regulations (1319-1327), but there is no such provision' for enlisted men.
    III.The “ second leader ” of the Marine Band, whose pay is fixed by the Act 3d March, 1899 (30 Stat. L., p. 1909), and who is declared entitled “ to the allowances of a sergeant major,’’ is not a commissioned officer and is not entitled to commutation of quarters.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Walter F. Smith, was on the 3d day of March, 1899, appointed to the position created by section 24 of the Navy personnel act, approved March 8, 1899 (30 Stat. L., 1009), of second leader of the band of the Marine Corps, and has ever since, by subsequent reenlistments, so continued.
    II. Shortly after his appointment, as aforesaid, he made application for quarters as “the allowances of a sergeant major” granted by said section 24 of the personnel act. None, however, have been at any time furnished him, nor has any commutation thereof been paid. The allowance of quarters to a sergeant major in the Army is at the rate of one room (Army Regulations, 1908, par. 1053); and also since March 2, 1907, heat and light for the same (34 Stat. L., 1167). The claimant, if entitled to commutation of quarters since March 3, 1899, and of heat and light for the same since March 2, 1907, is entitled to the sum of $1,444.37, of which amount $491.20 is barred by limitation, leaving due and not barred $953.17.
    
      Mr. George A. King for the claimant. Messrs. George A. & William B. King were on the brief.
    
      Mr. Frederieh De 0. Faust (with whom was Mr. Assistant Attorney General Thompson) for the defendants.
   Barney, J.,

delivered the opinion of the court:

This is a claim of one holding the position of second leader of the Marine Band for commutation of quarters and for the commuted value of heat and light for the same, amounting to the sum of $953.17, excluding that portion barred by the statute of limitations.

The claim is based upon the following clause of the Navy personnel act of March 3,1899 (30 Stats., 1909) :

“ That the band of the United States Marine Corps shall consist of one leader, with the pay and allowances of a first lieutenant; one second leader, whose pay shall be seventy-five dollars per month, and who shall have the allowances of a sergeant major,” etc.

The claimant has received the monthly pay thus provided, and this suit relates only to that part of the clause which declares that the second leader “ shall have the allowances of a sergeant major.”

In April, 1899, the claimant applied to the commanding officer of the Marine Barracks at Washington for quarters as forming a part of the allowances of a sergeant major, to which he was entitled under the foregoing clause of the Navy personnel act. There being no room at the Washington Barracks available for assignment to him for such purpose, his application was refused.

By the Army Begulations sergeant majors are entitled to quarters at the rate of one room, and by the act of March 2,1907, they are entitled to heat and light for the same. (34 Stat., 1167.) The findings show that the plaintiff during the time for which the claim herein was made was not furnished the quarters or heat and light above provided for. Such being the case, the question for decision is whether he is entitled to commutation for the same. We have not been cited to any statute or decision of the courts that commutation for allowance not furnished to officers or enlisted men of the Army or Navy is paid unless such payment is provided for by some statute or authorized regulation. In other words, the right to commutation does not arise automatically from the provision for the allowance, but must be based upon some specific provision of law. Commissioned officers of the Army on duty where quarters can not be furnished them are allowed commutation for the same by the Army Eegulations (Army Eegulations, 1319-1327), but there is no such provision for enlisted men.

The plaintiff is not a commissioned officer, but only ranks as an enlisted man. If there had been sufficient accommodation at the Washington Barracks available for assignment to him he would have been entitled to one room as quarters and would doubtless have been furnished the same. There being, however, a lack of accommodations there, no authority existed for hiring the same, and in fact such hiring was forbidden by the act of June 22, 1874 (18 Stat., 144), unless an express appropriation had been made there-forv

As an indication of the intent of Congress regarding commutation for enlisted men attention is called to the act of May 4, 1898 (30 Stat., 388), making appropriations for the naval service for the fiscal year ending June 30, 1899, wherein an appropriation is made for the hiring of quarters for certain enlisted men employed in the office of the corps in Washington, including the leader of the Marine Band, but no appropriation was made for quarters for the second leader. Without some such appropriation or other specific provision we do not think the plaintiff is entitled to commutation for the same.

It follows from the foregoing that the petition must be dismissed, and it is so ordered.  