
    EDWARD W. WHITE v. THE UNITED STATES
    [No. C-371.
    Decided March 16, 1925]
    
      On the Proofs
    
    
      Army pay; oath of office; notification of assignment. — Where plaintiff is appointed an Army field clerk, accepts the appointment, takes the necessary oath of.office, and is assigned to duty hut receives no notification of such assignment, and some time thereafter in response to an order reports for active duty, he is entitled to the salary and emoluments of his office upon taking the oath. , "
    
      The Reporter’s statement of the case:
    
      Mr. George A. King for the plaintiff. King & Ki/tig were ■on the brief.
    
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney General William J. Donovan, for the defendant.
    The following are the facts as found by.the court: ■
    I. The plaintiff was on August 20, 1917, appointed an Army field clerk, United States Army. Immediately on receipt of notice thereof he accepted the appointment, took the necessary oath of office at his home in Portland, Oreg., and forwarded the same on August 23, 1917, when he was assigned to duty at Camp Lewis, in the State of Washington. It does not appear that he was personally notified of this assignment to Camp Lewis.
    He was at that time 66 years old and was engaged in the, insurance business. He resigned 'his position in that business and thereafter engaged in no gainful occupation, and awaited orders of the War Department at his hojne.
    From that time he frequently wrote to The. Adjutant General at Washington asking instructions and assignment to active duty, and to the same effect on several occasions he wrote to the chief: clerk of the. Western Department of. the Army at San Francisco, Calif. He received no response to any of these communications until March 30, 1918, when he was ordered to report for active duty at San Francisco. He immediately went by rail, to that city and reported for and entered upon active duty April 1, 1918. The reason for his not being earlier placed on active duty was that a squad from the Army had been instructed to pick up plaintiff on their way to Camp Lewis, American Lake, Wash., but had neglected to perform that duty. These instructions to the squad or its head officer were not known to the plaintiff at that time and were learned by him only upon reporting at San Francisco for active duty. The distance from Portland,. Oreg., to American Lake, Wash., is 130 miles; to San Francisco, 772 miles.
    During the period covered by this claim the plaintiff was residing with his wife in his own home at Portland, Oreg.
    At the rate of pay of $100 a month provided by law a« the entrance pay of an Army field clerk Ills total pay for the period August 23, 1917, to March 31, 1918, would amount to_ $726. 67
    Commutation of quarters, two rooms, at $12 per room per month_ 174. 40‘
    Commutation of heat and light_ 63.17
    Total_964. 24
    The court decided that plaintiff was entitled to recover.
   Gkaham, Judge,

delivered the opinion of the court:

This is a case of an Army field clerk who apparently complied with the requirements and tests of the War Department for appointment to such position, and was appointed on August 20, 1917, accepted said appointment, and took the prescribed oath of office on August 23, 1917, when he was assigned to duty at Camp Lewis. He was not personally notified of this assignment to Camp Lewis, but an order seems to have been issued by some one in authority directing-that he should be picked up at his home and taken to that camp. This order was not complied with by those to whom it was given, nor was it known to the plaintiff, and did not become known to him until he reported at San Francisco-for active duty under the assignment of March 30, 1918. He has received no pay or allowances for the period between the date of his qualification for the position and assignment to Camp Lewis on August 23, 1917, and April 1, 1918,. when he entered upon the discharge of his duties under the assignment of March 30, 1918. He is claiming here his pay for this period at the rate of $100 a month and commutation for quarters and for light and heat. During the period mentioned he resided with his wife in Portland, and repeatedly communicated with the War Department asking-instructions and assignment to duty, but he received no responses to these communications.

The act of July 9, 1918, 40 Stat. 853, provides as follows r

“ That during the present emergency Army field clerks shall have the same allowances and benefits as heretofore-allowed by law to pay clerks, Quartermaster Corps, not including retirement: Provided, however, That the minimum, or entrance pay, exclusive of said allowances, of said Army-field clerks shall be $1,200 per annum.”

The act of August 29, 1916, 39 Stat. 625, provides :■

“Hereafter headquarters clerics shall be known as Army field clerks and shall receive pay at the rates herein provided,, and after twelve years of service, at least three years of which shall have been on detached duty away from permanent station, or on duty beyond the continental limits of the United States, or both, shall receive the same allowances, except retirement, as heretofore allowed by law to pay clerks,, Quartermaster Corps, and shall be subject to the rule's and articles of war.”

Plaintiff is entitled to his pay, though he performed no active duty and was awaiting orders. United States v. Lippitt, 100 U. S. 663, 667, 669. Under the act just quoted, upon accepting the appointment he became subject to the rules and articles of war and liable for their violation and obligated to their strict observance as much as an officer or enlisted man. The act placed field clerks in the military service. This latter act puts them in the same class as pay clerks, except as to retirement. The act of June 3, 1916, 39 Stat. 170, provided that pay clerks should thereafter have the-rank, pay, and allowances of a second lieutenant; making-them commissioned officers.

When a person is elected or appointed to a public office he is usually required by law to do some act preparatory to assuming its duties, as well as to signify his acceptance, and when he has, as in this case, accepted the office and taken the necessary oath, he is invested with the office, and, in the absence of any rule or regulation to the contrary, is entitled to its emoluments. Poore v. United States, 49 C. Cls. 192; Whiting, administratrix, v. United States, 35 C. Cls. 291.

The plaintiff, by executing the oath of office, was ready, willing, and able to perform his duties $ in fact he was anxious to do so, as is shown by his communications with the War Department asking for instructions. ITe had cut himself off from his business connections and was subject to orders at any time as a member of the Army. Had he received orders and failed to comply with them, he would have been liable to the penalties provided by the rules and articles of war. He should recover his salary and emoluments, which amount to $964.24, and for this sum judgment should be entered in Ms favor, and it is so ordered.

Hat, Judge; Downey, Judge;. Booth, Judge; and Campbell, Chief Justice, concur.  