
    FRANKLIN J. MOSES v. THE UNITED STATES.
    [No. 24089.
    Decided December 11, 1905.]
    
      On the Proofs.
    
    A captain commanding a company in tlie Marine Corps bas quarters assigned him in Fort San Felipe, Cavite, P. X., which are inadequate for bimself and wife. He rents rooms outside of the fort, and now seeks to recover commutation of quarters.
    I. Commutation of quarters is allowable only where an officer is de: tailed for duty without troops.
    XI. The Army Regulations (088) provide for the renting of quarters where the public buildings are inadequate, but the authority to rent is reserved expressly to the Secretary of War, and can not be exercised without his approval.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Franklin J. Moses, was a captain in the United States Marine Corps. On October 11, 1900, he was assigned to the command of a company en route to Cavite, P. I., by way of the U. S. S. Brooklyn. He arrived at Cavite November 3, 1900, and was on duty at said place with troops until January 11,1903.
    II. Upon his arrival at Cavite he was assigned one room in officers’ quarters, Fort San Felipe, which he continued to occupy until November 14, 1900, when he surrendered possession of same to occupy quarters outside the barracks, hired by claimant for the use of himself and wife, remaining therein until September 1, 1901.
    III. From November. 15, 1900, until September 1, 1901, claimant expended out of his own funds for said quarters the sum of $285; and if entitled to commutation of quarters the amount would be $342.
    IV. On December 3, 1900, claimant addressed the following letter to the commanding officer of the First Regiment U. S. Marines, at Cavite, P. I.:
    “ Headquarters 1st Regiment Marines,
    
      “Cavite, P. /., Dee. 3,1900.
    
    
      “ Sir : 1. Upon my arrival here I was assigned one room in officers’ quarters, Fort San Felipe, which was so crowded that some officers were two in a room.
    “ 2. Upon the arrival of my wife, who accompanied me with the approval of the Brigadier-General Commandant and the Secretary of the Navy, it was necessary for me to rent quarters, as the one room assigned me could not be occupied by her.
    “ 3. Believing that I am entitled to either rent or commutation of quarters, I would respectfully refer the matter to you for consideration. >
    “ Yery respectfully,
    “ F. J. Moses,
    “ Capt., U. S. M. C., Begtl. Adjutant.
    
    
      “ The Commanding Oeeioer,
    “ 1st Regiment U. S. Marines.”
    V. The following is a copy of the report of the quartermaster, dated February 21, 1901, in reply to the claimant’s letter of December 3, 1900:
    “ Respectfully returned to the Brigadier-General Commandant U. S. Marine Corps.
    “ If one room is available for assignment to Capt. F. J Moses, U. S. Marine Corps, as appears to be the case from his own statement, he is being furnished public quarters. In accordance with file instructions of the accounting officers of tlie Treasury under the general subject of allowances of this kind, it would seem that Captain Moses is not entitled to hire of quarters Avhile serving with troops when provided with public quarters, although such public quarters may not be equal to the number of rooms provided for in the Army Regulations for an officer of his grade. While this would seem to be a hardship in this as well as other similar cases, this office can not see its way clear in. a reasonable construction of the decision of the accounting officers of the Treasury to arrive at any other conclusion in the premises.
    “ The Comptroller of the Treasury, under date of March Gth, 1899, in the case of Lieutenant L. C. Lucas, TJ. S. Marine Corps, on duty at the naval station, San Juan, P. R., who was furnished with one room as quarters in the barracks, held that that officer was not entitled, as a matter of right, to the full allowance of quarters, notwithstanding the fact that the assignment of one room was less than the number provided by Army Regulations for officers of his grade. In the same decision the Comptroller held that the allowance of quarters shall be reduced pro rata when the number of officers and troops serving at a station rendered it necessary.
    “ F. L. DbNNY,
    “ Oolonel, Quartermaster, 77. S. M. ¿7.”
    VI. A claim for commutation or hire of quarters for said period was duly presented by claimant and same was rejected and claim therefor refused by the accounting officers of the Treasury.
    
      Mr. Jolm Baum, for claimant.
    
      Mr. John Q. Thompson (with whom was Mr. Assistant Attorney-General Pradt), for defendants.
   Booth, J.,

delivered the opinion of the court:

The claimant, Franklin J. Moses,was a captain in the United States Marine Corps. October 11, 1900, he was assigned to the command of a company en route to Cavite, P. I., arriving; there November 3, 1900, and remaining on duty with troops until January 11, 1903. Immediately upon his arrival he was assigned for occupancy one room in officers’ quarters, Fort San Felipe, which he continued to occupy until November 14, 1900, when he relinquished possession of the same and took up quarters previously leased by him outside the barracks.

It appears that claimant’s assigned quarters were inadequate for the accommodation of himself and wife, and in consequence thereof he did go outside the barracks to procure suitable living rooms. This suit is brought to recover $342, alleged to be due the claimant as commutation or hire of quarters at the rate of $36 per month, from November 15, 1900, to September 1, 1901, the period of time during which said claimant occupied outside quarters.

It is to be observed that the claimant was serving with troops, and commutation of quarters is- only allowable where an officer is detailed for duty without troops. (Hunt v. United States, 38 C. Cls., 704; Anderson v. United States, 39 ibid., 316.)

The claimant’s contention is founded upon certain regulations prescribed for the Army and- embraced in sections 984 to 988 (U. S. Army Regulations 1895, pp. 137, 138).

Section 988 of the Army Regulations of 1895 provides, among other things, “ If the public buildings are inadequate the commanding officer will apply, through the department commander, to the Secretary of War for authority to hire necessary quarters.” This -regulation affords a - remedy for the exact condition existing in this case. The authority to hire additional quarters, in the event of inadequacy, is reserved expressly to the Secretary of War. Without his authority it can not be done. Its application can not be so enlarged as to permit an officer of his own accord and upon his own motion to involve the United States in a pecuniary liability for quarters aside from those furnished him by the Government.

Under the Arn^ Regulations the practice has been for the proper officers to obtain the necessary authority to hire quarters as prescribed in regulation 988, and deal directly with the landlord, making disbursements directly to him through the Department of War, thus precluding the making of individual contracts of rental for quarters. We find no army regulation divesting the Secretary of War o‘f this authority or permitting- individual discretion or opinion as to the adequacy of army quarters.

Nothing appears to indicate that the expenditure made by claimant was under or by virtue of any statute or by authority of the Secretary of War, as contemplated by army regulation 988. We are therefore of the opinion that the petition should be dismissed.

Petition is dismissed.  