
    STUART D. CAMPBELL v. THE UNITED STATES
    [No. D-803.
    Decided February 14, 1927]
    
      On the Proofs
    
    
      Army pay; authority to assign junior officer to higher command while senior officer is present. — See Kinsolving v. United States, ante, p. 79.
    
      Same; operations against an enemy; effect of armistice November 11, 1918. — Upon the signing of the armistice November 11, 1918, there was no enemy to operate against within the meaning of the act of April 26, 1898, providing for increase of pay to officers exercising a higher command.
    
      The Reporter’s statement of the case:
    
      Mr. Cornelius H. Bull for the plaintiff. Mr. George A. King and King do King were on the briefs.
    
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows: ■
    1. The plaintiff, Stuart D. Campbell, was appointed first lieutenant, Officers’ Eeserve Corps, effective August IS, 1911, and took the oath of office on August 9, 1911. Plaintiff was on active duty in France with Company H, Eighteenth Infantry, on January 20, 1918, when the following order was issued:
    HEADQUARTERS EIGHTEENTH INFANTRY,
    Frcmce, January BO, 1918.
    
    Special Orders No. 15.
    [Extract]
    2. First Lieut. S. D. Campbell, Eighteenth Infantry, will assume command of Company E, relieving First Lieut. John B. Fountain, Eighteenth Infantry.
    By order of Colonel Parker:
    Wm. Winters,
    
      Captain and Adjutant, Eighteenth Infantry.
    
    Plaintiff complied with his order, assumed command of Company E, Eighteenth Infantry, as directed, and remained continuously in command thereof until July 21, 1918, when, as a result of a compound fracture of his right arm and hip by a machine-gun bullet wound in an attack upon the German line at Soissons, France, he was evacuated to a hospital.
    II. According to the testimony of the plaintiff on the issuance of Special Orders No. 15 and his taking command thereunder of Company E, First Lieut. John E. Fountain, who had been in command of said Company E, and senior in rank to plaintiff, remained with said company some time over one year afterwards.
    III. After plaintiff returned to Company E, Eighteenth Infantry, on or about August 19, 1918, the organization was under the command of Capt. M. P. Seed until November 28, 1918, when the following order was issued:
    HEADQUARTERS EIGHTEENTH INFANTRY,
    
      Luxembourg, £8 November, 1918.
    
    Special Orders No. 225.
    [Extract]
    10. First Lieut. S. D. Campbell, Eighteenth Infantry, will assume command of Company E, vice Captain M. P. Need, transferred to Company F.
    By order of Colonel Hunt:
    L. H. Thomas,
    
      Captain and Adjutant, Eighteenth Infantry.
    
    Plaintiff remained in command of said Company E until March 26, 1919, when he was appointed captain.
    IY. At all times between January 20,1918, and March 26, 1919, Company E of the Eighteenth Infantry was in France as a part of the American Expeditionary Forces. During the period January 20, 1918, to November 11, 1918, this organization was engaged in actual combat with enemy forces on the western battle front and on July 18 the First Division, of which the Eighteenth Infantry was a part, attacked the German line at Soissons. Company E of the Eighteenth Infantry also took part in active trench warfare in the Toul sector at Beaumont. This organization also assisted in the capture of the town of Cantigny, France.
    After November 11, 1918, Company E of the Eighteenth Infantry with the First Division was assigned to guard the frontier of occupied German territory. During the period from November 18, 1918, to March, 1919, and immediately after the armistice, and until March 31,1919, Company E of the Eighteenth Infantry constituted a part of the American Army of occupation occupying German territory.'
    V. The Adjutant General of the Army, War Department, reported July 23, 1920, to the Auditor for the War Department that when plaintiff joined Company E in compliance with this order he was the senior officer present, and the orders under which he commanded for the period November 28, 1918, to March 31, 1919, was a competent order of assignment under then existing regulations and was approved.
    YI. If entitled to the difference in pay and allowances claimed the amount due plaintiff for the period from January 20, 1918, to July 20, 1918, is $260.87, and the amount due for the period from November 28, 1918, to March 25, 1919, is $211.06.
    The court decided that plaintiff was not entitled to recover.
   Hat, Judge,

delivered the opinion of the court:

This is a claim of an officer who while serving in France during the war with Germany was assigned to exercise a command above that pertaining to his grade. He claims under the provisions of the act of April 26, 1898, 30 Stat. 365, which reads as follows:

“ That in time of war every officer serving with troops operating against an enemy who shall exercise under an assignment in orders issued by competent authority a command above that pertaining to his grade shall be entitled to receive the pay and allowances of the grade appropriate to the command so exercised.”

The claim is made for two periods of time; the first from January 20, 1918, to July 21, 1918; the second from November 29, 1918, to March 26, 1919.

The claim for the first period is the sum of $260.87.

On January 20, 1918, the plaintiff was serving with Company H of the Eighteenth United States Infantry in France while war was existing between the United States and Germany, and the said regiment was operating against the enemy in the field. On January 20, 1918, the plaintiff received an order from the colonel of the regiment directing him to take command of Company E of the same regiment. He obeyed said order and took command of Company E, and continued in command thereof until July 21, 1918, on which day he was wounded in battle and sent to the hospital, where he remained for four months and two days. During the time from January 18 to July 21, 1918, the company which he commanded was engaged frequently in actual combat with the enemy.

At the time the plaintiff was assigned by order of the colonel of the regiment to command Company E he was a first lieutenant, and when he took command there was serving with the said company, and available for duty, a first lieutenant senior to himself. The Government contends that under the one hundred and nineteenth article of war, which reads as follows:

“Rank and precedence among Regulars, Militia, and Volunr teers. — That in time of war or pubfic danger, when two or more officers of the same grade are on duty in the same field, department, or command, or of organizations thereof, the President may assign the command of the forces of such field, department, or command, or of any organization thereof, without regard to seniority of rank in the same grade.”

the order issued by the colonel of the regiment to the plaintiff was illegal and void, and that the colonel of the regiment had no authority to issue it, and that it was not issued by competent authority. In this view it is upheld by a decision of the Comptroller of the Treasury, 26 Comp. Dec. 691. This contention is based upon the fact that when the plaintiff was assigned by order to take this command a senior officer was present and was available for duty, and that the only authority of law for assigning a junior officer of any Army organization to take command of such organization in time of war while his senior officer is present and available for duty is by order or authority of the President. It seems to us that the order of the colonel of the regiment was not legal, and that the meaning of the act of April 26, 1898, was that the order assigning the officer to the command above that pertaining to his grade must be issued by competent authority. No one, in the face of the language of the one hundred and nineteenth article of war above quoted, had such competent authority save and except the President of the United States. It does not appear that it was necessary to issue such an ■order, nor is it suggested that First Lieutenant Fountain, who was the ranking officer present and available for duty when this order was issued, was incapable or that he had been guilty of any offense, military or otherwise. Indeed, it would seem one of those cases which makes plain the wisdom of the one hundred and nineteenth article of war.

As to the second period of time, from November 18, 1918, to March 25, 1919, for which the plaintiff' claims the sum of $211.06, we are of opinion that he can not recover. The armistice was agreed upon on November 11, 1918; at the time of his assignment to this duty there was no enemy to operate against. The war was over so far as operations against the enemy were concerned and therefore the plaintiff does not bring himself within the terms of the act of April 26, 1898. Moreover, the same reasons which defeat his claim for the first period are applicable here, even though it might be said that our troops after the armistice were operating against the enemy.

The petition of the plaintiff must be dismissed, and it is so ordered.

Moss, Judge; Graham, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  