
    COLONEL ANDREWS’S CASE.
    George L. Andrews v. The United States.
    
      On the Proofs.
    
    
      Leave of absence for six months is granted by the War Department to an officer commanding a remote post in Texas. While still at Ms post he is ordered by the commanding officer of the department to conduct certain prisoners to San Antonio. He does so and there accepts his leave of absence. Be returns there at the expiration of his leave and reports for duty, but no duty is assigned to him HU he reaches his former post. Be claims full pay from the time he reported for duty at San Antonio. It is refused him until he resumes command at his post.
    
    I.Where an officer who lias received but not yet accepted leave of absence from tlie War Department is ordered by Ms commanding officer to convey prisoners to another post, Ms leave of absence is to that extent suspended, and be is entitled to mileage from bis post to the place of performance and back.
    II.Tbe Army Regulations (1863, par. 176) provide tbat tbe expiration of an officer’s leave of absence “must find Mm at his station.” His station means bis permanent station, the place of performance of bis military duties, and not a place to which be was temporarily' ordered for a special duty, and at which he accepted bis leave of absence.
    III.An officer’s proper station cannot be changed by his being .ordered to perform a temporary duty while on leave of absence.
    
      The Reporters’ statement of tbe case:
    The following are the facts as found by the court:
    I. The claimant was' appointed major of the Seventeenth Infantry on the 14th May, 1861; lieutenant-colonel of the Thirteenth Infantry October 4, 1864; colonel January 1,1871; and had served more than fifteen years continuously at the time the claim here made was advanced in 1876.
    II. On the 7th of March, 1876, the claimant was in command of the post of Fort Davis, and was on duty ou that station; and while on duty in that command, leave of absence was granted ' him in the following order :
    
      [Special Orders No. 45.]
    “War Department,
    “Adjtjtant-G-eneral’s Oppice,
    “ Washington, March 7, 1876.
    * # # # * # *
    “ 6. Leave of absence for six months, with permission to ap-. ply for an extension' of two months, is granted to Ool. G. L. Andrews, Twenty-fifth Infantry (Fort Davis, Tex). 1
    # # 1 * # * * *
    “By order of the Secretary of War.
    “E. D. Townsend,
    “ Adjutant- General.”
    
    III. On the 27th of March, 1876, while claimant was in command of the post of Fort Davis, Tex., he received the following order:
    “Headquarters Department op Texas,
    
      “aS'an Antonio, Tex., March 27,1876.
    “ Col. G. L. Andrews,
    
      Twenty-fifth Infantry, Commanding Fort Davis, Tex.:
    
    “Sir: The department commander directs that yon conduct to this city G. Shahklin, late private Company EC, Tenth Cavalry, now at your post, and G. Johnson, late private Company M, Tenth Cavalry, now at Fort Stockton, the former sentenced to two 3’ears, and the latter to three years at the Leavenworth military prison, Fort Leavenworth, Kans., with all the papers pertaining to their cases.
    “Yery respectfully, your obedient servant,
    “J. H. Taylor,
    “ Assistant Adjutant-Generali
    
    IY. Upon receiving this order, the claimant left Fort Davis, and in obedience to it arrived at San Antonio and delivered the prisoners and papers to the proper authorities there.
    On May 17 he left San Antonio upon the leave of absence granted him by the Secretary of War.
    He returned to Fort Davis November 26, 1876, and resumed the command of that station.
    Y. The claimant returned to San Antonio, Tex., October 27, 1876, and reported to department headquarters for duty on the next day, but was not assigned to any duty from the time he left in March until he rejoined his command at Fort Davis.
    YI. The claimant drew duty-pay from October 28 to November 26,1876, at the rate of $375 per month, but the Paymaster-General stopped $175 against him, on the ground that he was on leave of absence during that period, and only entitled by law to half pay.
    VII. The following is an order of the General of the Army on the subject of mileage, &c.:
    [General Orders No. 97.]
    “Headquarters or the Armit,
    “Adjutant-General’s Oeeice,
    “ 'Washington, September 8, 1876.
    # * * * * * *
    
    “III. The following regulations in the matter of the mileage allowance are announced for the government of the Army:
    # # # # # #
    #
    “ 9. 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 his own expense unless otherwise specially ordered as contemplated in paragraph 7 of this section.
    # ’ # # * * * *
    “By command of General Sherman.
    “E. D. Townsend,
    “ Adjutant-General.”
    
      Mr. B. JF. Grafton for the claimant:
    The order to claimant of March 27,1876, directing him to conduct prisoners to San Antonio, was a lawful order, and claimant was bound to obey it. The considerations which induced the department commander to issue it cannot be taken into account. The fact that it was an order which he was authorized in his capacity as department commander to issue — that he did issue it — is quite sufficient for the purposes of this case. The claimant was bound to obey it. (Williamson’s Ouse, 23 Wall., 416.) The legal effect of said order was to relieve claimant from the command of the post of Fort Davis, and to assign him to duty in conducting to San Antonio, the headquarters of the department, certain military prisoners. When he had complied with the order his station was San Antonio, the point where his duties under the order terminated. It was competent for the department commander to order him from San Antonio to any post for other duty within his department, instead of permitting him to avail himself of his leave of absence.
    The fact that the department commander considered claimant on duty on tbe 28tbof October, 1876, tbe day after be returned from bis leave and reported for duty at San Antonio, tbe point where bis previous duty ceased, is conclusive as to bis status, from that day, and claimant was legally on duty from that day and entitled to be paid accordingly.
    
      Mr, George G. Wing (with whom was tbe Assistant Attorney-General) for tbe defendants:
    That cannot be a station in a military sense where an officer is not compelled to be in pursuance of orders; and here, unless tbe nature of tbe orders of March 27 was such as required claimant to remain in San Antonio until otherwise directed, or unless be was, when or after leaving San Antonio, ordered to return, there was no other place of duty or proper station for him than Fort Davis, that being tbe only place where be was obliged by force of existing orders to report for duty.
    Tbe order of March 27 did not make San Antonio such a station 5 it merely directed that claimant should conduct certain prisoners to San Antonio; it did not contain any instructions as to bis movements thereafter, neither directing him to return to await orders nor to avail himself of bis leave of absence. It was to do a certain thing, such as would imply constant service up to tbe time of reaching San Antonio, but, necessarily, no longer. This is, therefore, not such a case as Williamson’s, cited by claimant. There tbe distinction rested upon tbe fact that tbe plaintiff bad been directed to go to a certain point and there await orders, and be was, because awaiting orders, held to be on duty. Here tbe order was to a duty which could not engage him longer than to San Antonio; having there reported, tbe order was executed and exhausted, and tbe omission of any instructions further, when it would have been competent and usual to insert them if such was the purpose, is conclusive that the intention was not so to do.
    The order was sought by claimant and given after that he and tbe department commander — through whom tbe application by tbe regulations must go — were made aware, by announcement in orders, that it was granted. And it was, therefore, in contemplation of tbe leave, and with tbe view of facilitating its operation, not of conflicting with it.
    This leave was granted by the Secretary of War (i. e., the President), and no inferior officer could by Ms order change its legal effect. The leave, if accepted, must be exactly on the ■terms it was granted, and these are determined by the position ún wMch the applicant was.
    This case was decided by the Secretary of War upon the official record, and in conformity with the regulations and the uniform construction there given to them. The effect of this rule is not to forbid orders for the indirect benefit of an officer so long, as such orders obtain actual service for the government while it is transporting and paying the officer on his leave distance. After, however, such friendly orders have, as in this ■case, ceased to be of use to the government, the rule does take notice of the fact, and construes that thereafter duty basis was merged and lost in the leave status voluntarily /.entered upon by the officer. An order given principally for the benefit of the officer should not be allowed by technical construction to endure when there is no longer benefit to the government, but actual loss. Should tMs court establish by decision the rule sought by claimant, though it would operate for his •advantage, it would often work hardship to other officers. If the place where the last temporary service ter minated is the station meant by paragraph 176, officers must always be found there on the expiration of their leaves; and the undesirable 'result will be apparent if it is supposed that Colonel Andrews •had been ordered to San Francisco instead of San Antonio, and the point where he enjoyed his leave thereafter was New York.
    It would have been compulsory that he rejoin at San Francisco instead of the nearer station, Fort Davis $ and this would unnecessarily entail upon the officer an expenditure of money, time, and travel which the present rule would have avoided.
   Hunt, J.,

delivered the opinion of the court:

The claimant, a colonel in the United States Army, was stationed at Fort Davis, in Texas, in command of the post, in March, 1876. On the 7th of that month leave of absence was granted him by order of the Secretary of War, for six months, with permission to apply for an extension of two months. On the 27th of March, 1876, after receiving this leave, he procured from the general commanding the department an order directing him to conduct two prisoners, one of whom was then at his post, Fort Davis, and the other at Fort Stockton, to San Antonio, together with the papers pertaining to their cases. •

The claimant performed this duty, and on the 17th May following commenced to avail himself of his leave of absence.

On the 27th of the next October he returned to San Antonio,, and on the following day he reported to the Assistant Adjutant-General of the Department of Texas.

On the 26th of November, 1876, he reached Fort Davis and resumed duty as commander of the post. An interval of 28-days had then elapsed between his reporting at San Antonio' and his return to his station. During this interval he has been allowed half pay only by the Paymaster-General. He claims, to be entitled to full pay for the time, on the ground that the station to which he was required to return from leave was Sam Antonio and not Fort Davis; and he brings this suit to recover $175, the amount thus withhéld.

The Army regulations in force require that the expiration of' an officer’s leave “must find him at his station.” (Reg. 1863, par. 176.) His right to full pay depends on.a compliance with this requirement. The only question in this case is whether the-claimant’s proper station was San Antonio, where he commenced to enjoy his leave, after having performed the special duty to which he had been detailed by the general commanding the-department, or whether that station was Fort Davis, the post of which he was regularly in command when he was allowed, his leave of absence by the Secretary of War.

This question is determined' by considering the date and effect of the several orders to which the claimant was subject. His sole and proper station at the time his leave of absence was granted and conveyed • to him was Fort Davis. His right to ■ this leave was complete and immediate then and there. But when subsequently he was detailed to special and- temporary duty, by an officer authorized to make such detail, his leave of' absence became interrupted or suspended during the time required for such special duty. Its duration could neither be • increased nor diminished by an inferior authority. He was entitled to six months’ leave, and that, in the very words of the • order of the Secretary of War, was “ granted to Col. G. L. Andrews, Twenty-fifth Infantry (Fort Davis, Tex.).” Thus the-station of the claimant was as distinctly designated as the duration of his leave. Immediately after proceeding to San Antonio - and delivering over Ms prisoners, be reverted to bis u status of leave of absence,” as it is termed in tbe General Orders No. 97, section III, No. 9. He became entitled to mileage from tbe place ■of tbe receipt of tbe order to the place of performance of tbe duty and to return mileage. But be did not become entitled to a change of bis proper station by tbe order to temporary duty, nor yet to full pay.

It is true that tbe claimant, on bis way back to bis station at Fort Davis, stopped at San Antonio and reported to tbe commanding general of the department. But be was neither assigned to nor performed any duty until be resumed bis command at Fort Davis.

If tbe proper station of an officer ordered to perform a temporary service while on leave of absence becomes changed to tbe place where such service terminated, tbe most inconvenient consequences might result to tbe officer and to tbe service. For example, in this instance tbe claimant might have been detailed to perform a special service ending at San Francisco instead of San Antonio. Being required by tbe regulations to be found at bis proper station, be would have been compelled, after spending Ms summer in New England, or some distant place, to repair all tbe way back to San Francisco at tbe termination of bis leave before-returning to bis command at Fort Davis.

It is therefore ordered, adjudged, and decreed that tbe claimant’s petition be dismissed.  