
    RICHARD I. ESKRIDGE v. THE UNITED STATES.
    [No. 18168.
    Decided April 22, 1895.]
    
      On the Proofs.
    
    In 1892 a captain of infantry is assigned to the command of a battalion. Pursuant to the Infantry Drill Regulations, 1891, he mounts himself and furnishes forage for his horses. His department commander approves his pay accounts and he is paid as a mounted officer. Subsequently the department commander, pursuant to instructions from the General of the Army, declines to certify the accounts, but gives the officer a certificate stating that in his opinion the duty “required him to he mounted.’’ The officer continues to perform the duty mounted, but mounted pay and forage are refused.
    I.A court can not loot into the mind and motives of a military commander, but must be governed by his official acts. Where he refuses to certify, imrsuant to Army Regulations, 1889, that an officer’s duty, “in the opinion of the department commander, requires him to he mounted,” it is his official and not his individual opinion that controls.
    II.When an infantry officer is assigned to duty which, in the opinion of his department commander, requires him to be mounted, and he furnishes horses and forage, the facts constitute an estopiml against the Government until the officer is notified of the changed opinion of the department commander. A change of official action should not operate retroactively upon the legal rights of the officer.
    III.If the officer continues to furnish horses and forage and perform the duty mounted after the department commander refuses to certify his pay accounts, he does so at his own risk and cost.
    
      The Reporters’ statement of tbe case:
    The following are the facts of this case as found by the court as amended- by the order of the court November 11,1895:
    I. The claimant, Richard I. Eskridge, was, from the 1st day of May, 1892, to the 31st day of October, 1894, a captain in the Regular Army of the United States of more than twenty years’ service.
    II. During said period the following were in force as a part of the Infantry Drill Regulations of the Army:
    “Paragraph 249. In this school the senior officer presentís the instructor; in the text he is designated as major.
    
      “Paragraph 255. In line the major is posted.twenty paces in front of the center of the battalion; the adjutant and sergeant-major are opposite the right and left of the battalion, six paces in rear of the file closers. The staff officers, except the adjutant, in the order of rank, the senior on the right, take post at one pace apart, six paces to the right, and in line with the front rank of the battalion. The noncommissioned staff officers, except the sergeant-major, take post similarly on the left of the front rank.
    “ In column the major is on the side of the guide, twenty paces in front and opposite the center.
    # * # * #
    “ The field and staff officers are mounted.”
    “War Department,
    
      11 Washington, October 3,1891.
    
    “A board of officers consisting of Lieut. Col. John 0. Bates, Twentieth' Infantry; Lieut. Col. George B. Sanford, Ninth Cavalry; Maj. Henry 0. Hasbrouck, Fourth Artillery; Maj. John C. Gilmore, Assistant Adjutant-General; Capt. Joseph T. Haskell, Twenty-tbird Infantry; Capt. Edward S. Godfrey, Seventh Cavalry, and Capt. James M. Lancaster, Third Artillery, with First Lieut. George Andrews, Twenty-fifth Infantry, as recorder at first, and later First Lieut. John T. French, jr., Fourth Artillery, having prepared a system of drill regulations for infantry, which has been approved by the President, it is herewith published for tbe information and government of the Army and for the observance of the militia of the United States.
    “With a view to insure uniformity throughout the Army, all infantry exercises and maneuvers not embraced, in this system are prohibited, and those herein prescribed will be strictly observed.
    “Bedeield Proctor,
    “ Secretary of War.”
    
    III. During the period aforesaid the claimant was in command of the Second Battalion of the Twenty-third Regiment of Infantry, and owned and used two horses in the manner described in the following certificates of the commanding general of the department in which he was serving, and the commanding officer of his regiment:
    “Headquarters Department op Texas,
    “ San Antonio, Texas, November 3,1893.
    
    “ I hereby certify that Captain R. I. Eskridge, 23d Infantry, was, from September 1st, 1892, to October 31st, 1893, on duty which, in my opinion, required him to be mounted.
    
      “His pay accounts for that period were not so certified by me by reason of tbe views of the Major-General Commanding the Army, expressed in communication dated September 15th, 1892, that the duty (that of battalion commander under par. 255, Infantry Drill Regulations, U. S. Army) ‘is not of a character to warrant the department commander’s certificate under A. R,, 1443.’
    “Frank Wheaton,
    “ Brigadier- General, Commanding Department.”
    “Fort Sam: Houston,
    “ Sm Antonio, Texas, September 1,1893.
    
    “I hereby certify that Captain R. I. Eskridge, 23rd Infantry, has, from May 1,1892, to the present date-, been in command or the Second Battalion, 23rd Infantry, serving at this post under , my command.
    “That in the discharge of the above duty Captain Eskridge was required by par. 255, Infantry Drill Regulations, U. S. Army, to be mounted.
    “ That said, duty could not have been properly performed on foot.
    “That during the whole period above mentioned the said Captain Eskridge was mounted and did own and use in the public service in his capacity as battalion commander aforesaid, two horses, for which the issue of forage, on proper. returns made by myself as post commander, was refused by the Quartermaster’s Department.
    “ J. J. Copping-er,
    
      “Colonel 23rd Infantry, Commanding.”
    “Fort Sam Houston, Texas,
    “ November 5,1893.
    
    “I hereby certify that Captain R. I. Eskridge, 23rd Infantry, has, from September 1 to October 31,1893, been in command of the Second Battalion, 23d Infantry, serving at this post under my command.
    “That in the discharge of the above duty Captain Eskridge was required, by par. 255, Infantry Drill Regulations, U. S. Army, to be mounted.
    “That said dp.ty could not properly have been performed on foot.
    “That during the whole period above mentioned the said Captain Eskridge was mounted and did own and use in the public service in his capacity as battalion commander aforesaid, two liorses, for wbicb the issue of. forage, on. proper returns made by myself as post commander, was refused by the Quartermaster’s Department.
    “ J. J. COPPINGER,
    
      “Colonel 23rd Infantry, Commanding.”
    
    IV. On the 2d September, 1892, General Wheaton, commanding the Department of Texas, had addressed a communication to Major-General Schofield, commanding the Army of the United States, in which he called attention to the fact that paragraph 255 of the Infantry Drill Regulations requires the field officers of the battalion of infantry to be mounted, and said:
    “ In the practice of these regulations the two battalions of the 23rd Infantry at Fort Sam Houston have captains, acting majors commanding. Under Army Regulations 1443 officers whose duties, in the opinion of the department commander, require them to be mounted, receive mounted pay of their grade. Two officers of the 23rd Infantry at Fort Sam Houston have submitted pay accounts for certification as required by the paragraph of the regulations. Has appended necessary certificates in several cases. He knows these officers to be mounted and equipped at their own expense, and that Q. M. Department had not furnished public horses for their use. Further, it would hot seem fair to ask an infantry officer to do mounted duty as required by the recently adopted tactics and compel him to furnish his own mount. Either the United States should mount these officers or supply forage for private horses used as required by tactics. As many such cases are likely to arise he requests instructions:
    “First. Shall infantry captains, when acting as majors, receive pay of a mounted officer of the grade of captain ?
    “Second. Are they entitled to forage when furnishing their own mounts, and for how many animals?
    “Upon submitting the matter to the Major-General Commanding the Army, he remarked that the questions within are answered in the negative by the Major-General Commanding with reference to the decision of May 16,1892, covering the status at Fort Omaha, involving the 2nd Infantry. (37612 A. G. O., 1892.)
    “ The above decision was communicated to the commanding general, Department of Texas, in letter A. G. O., September 16,1892.
    “ The Major-General Commanding, May 16, 1893, decided, ‘ That at the present time it is not practicable to furnish horses as requested, and that when all the officers can not be mounted the ceremonies will be performed dismounted.’ ”
    
      Y. From tbe 1st day of May, 1892, to tbe31st day of August, 1892, the claimant was paid at the rate of $233.33 a month, that being the pay of a captain mounted, including longevity pay for over twenty years’ service.
    From the 1st day of September, 1892, to the 31st day of October, 1894, he was paid at the rate of $210 a month, that being the pay of a captain not mounted, including longevity increase as aforesaid.
    The difference between the pay which he has received as a captain not mounted during the later period and what he would have received if he had been paid as a captain mounted would be $606.67.
    YI. The claimant applied for the issuance of forage for his said horses, and the post commander made a requisition for such forage, but the Quartermaster’s Department refused to furnish it. The claimant thereupon provided forage for said horses at his own expense, at a cost of $8 a month for each of said horses, making a total cost for the thirty months from May 1, 1892, to October 31,1894, of $480.
    
      Mr. George A. King for the claimant:
    The circumstances under which officers of other than cavalry regiments are entitled to be mounted, and to be paid as mounted officers, have been considered by this court in several cases.
    In Forbes v. United States (17 O. Cls. R., 132) and in Garter v. United States (22 O. Gis. R., 73) it was held that officers of infantry riding cavalry horses merely by permission of the Secretary of War, and where the duties to which they were assigned were not such as actually required them to be mounted, were not entitled to the benefit of mounted pay under the second proviso of section 1270 of the Revised Statutes. But in Harrold v. United States (23 O. Ols. R., 295) it was held that any officer who was, either by statute, by regulation, or by army organization, required to be mounted, was a mounted officer within the meaning of the Revised Statutes, sections 1261,1270.
    In the present case, the Infantry Drill Regulations required the claimant, as commanding officer of his battalion, to perform certain evolutions, and expressly required the officers performing these evolutions to be mounted. The order of the Secretary of War establishing these regulations expressly prohibited all infantry exercises and maneuvers not embraced within the system thereby published, and directed that those therein prescribed should be strictly observed. It would be difficult to imagine circumstances more directly and imperatively requiring an officer to be mounted.
    Paragraph 1443 of the Army Regulations requires a certificate of the department commander, and the department commander accordingly certified that the duty in his opinion required the claimant to be mounted. He was accordingly so paid from the 1st of May to the 31st of August, 1892, after which, for the fourteen months for which he is claiming difference of pay, his pay was reduced to that of a captain, not mounted, although the service performed by him before the 1st of September, 1892, and that performed by him after that date were of precisely the same character.
    There was, therefore, a clear concession of the right to mounted pay during the performance of the duty in which the claimant was engaged. Adopting the language of the Supreme Court in its recent decision on the appeal from this court in the case of Caroline Sonthworth, executrix, etc., v. The United States, No. 11977, “ It would seem that its sufficiency was conceded, for the account therefor was allowed and paid. While no estoppel is created by the act of the Government in making such payment, yet it is significant,” etc.
    
      Mr. Felix Brmnigan (with whom was Mr. Assistant Attorney-, General Bodge) for the defendants:
    The department commander has declined to certify on claimant’s accounts for extra pay that in his opinion the duty required the officer to be mounted. He has deferred to the decision of the Major-General Commanding the Army that the duty was not “of a character to warrant the department commander’s certificate.” This decision brings the case within ' a very familiar principle of executive administration — that where the law confers a power upon an officer to be exercised according to his judgment, no right became fixed in respect to the matter intrusted to him until he has exercised his discretion, and no appeal lies from his decision thereon to the Court of Claims or any other court. (Decatur v. Paulding, 14 Pet., 497; Dorsheimer v. United States, 7 Wall., 166; Carriole v. Lamar, 116 U. S., 423.)
    
      In view of tlie x>rohibitions of sections 1763,1764, and 1765 of tbe Revised Statutes, every requirement of the regulations must be complied with and exercised in favor of claimant before he can maintain a suit in this court for the extra pay and forage claimed in his petition.
    The certificate of the department commander having been given subject to the decision of the Major-General Commanding the Army, it follows that the adverse decision of the superior officer operated as a revocation of the certificate.
    Neither the law nor the Army Regulations authorized the formation of infantry regiments into battalions so as to require captains to be mounted when commanding battalions. That formation, although an old and familiar one in infantry drill and military movements, was prescribed by General Orders, No. 29, of the Major-General Commanding the Army, dated Headquarters of the Army, April 14,1892, probably for the purpose of requiring such drills at small posts where that formation was likely to be neglected.
    In directing the battalion drills therein prescribed the Commanding General did not authorize or require captains commanding infantry battalions to be mounted. He knew that drill in battalion of one or more companies by infantry captains on foot was by no means uncommon at well-regulated posts, and that the commands could be given on foot as well as on horseback, either for field movements or ceremonies. Therefore, when the question was brought before him, he decided that it was not necessary that such captains should be mounted, and he still adheres to that decision. The Secretary of War has also decided that no reorganization of the Army should be made which would change the status or increase the pay of officers, and that General Orders, No. 29, did not require it.
    There can, therefore, be no conflict on the question of the necessity of mounting an infantry line officer for battalion drill between the department commander and the Commanding General of the Army. The former recognized his subordinate relation when he declined to certify the pay accounts of claimant, as set forth in the petition.
    It would be subversive of all military discretion, discipline, and command to hold that the certificate of an inferior officer as to the necessity for any specific military operation, formation, or drill could overrule tbe expressed discretion of tbe General Commanding tbe Army. In sucb matters tbe discretion of tbe supreme commander is the law of the Army, and from his decision there is no appeal to this court. The Commanding General of the Army has decided that it was not necessary that the claimant should be mounted; the department commander acts in obedience to that decision, and declines to certify claimant’s accounts, and hence their action leaves claimant without any standing whatever, under paragraph 1443 of the Army Regulations, and without any valid claim in this court. He can not be heard here to controvert the decision of the Commanding General of the Army upon a military matter.
   Nott, J.,

delivered the opinion of the court:

This case presents one of those delicate questions of Army administration which the judiciary is always reluctant to determine.

The claimant, a captain in the Twenty-third United States Infantry, has been in command of the battalion of that regiment from the 1st May, 1892, to the present time. The Infantry Drill Regulations of the Army, 249, 255, contemplate and direct that the field and staff officers be mounted. Captain Eskridge accordingly provided himself with a major’s outfit of two horses and furnished forage for the same. For the period extending from the 1st May, 1892, to the 31st August, 1892, his pay accounts were certified in the manner hereinafter indicated, and he received the pay of a mounted officer of his rank but not commutation of forage for his horses. Since the last date he has furnished the horses and performed the service of a mounted officer, but has not been paid.

The Army Regulations, 1889, provide:

“The following officers, in addition to those whose pay is fixed by law, are entitled to pay as mounted officers: Officers of the staff corps * * * and officers on duty which, in the opinion of the department commander, requires them to be mounted, and is so certified by the latter.”

There is also prefaced to these Army Regulations the following order:

“War DEPARTMENT, February 9,1889.
“The President of the United States directs that the following Regulations for the Army be published for the government of all concerned, and that they be strictly observed. Nothing contrary to the tenor of these regulations will be enjoined in any part of the forces of the United States by any ■commander whatsoever.
“Wk. C. Endicott,
Secretary of War.”

It therefore seems clear that the regulation above quoted constitutes the law of the case, and that no authority short of the President can change it. The regulations vest the discretion of determining what is the duty which requires an officer to be mounted wholly and exclusively in his department commander; the order of the President forbids that anything contrary to the regulations “be enjoined in any part of the forces of the United States by any commander whatsoever,” and the President has not interfered to suspend the force of the regulation or to overrule the decision of the department commander. .The judiciary can not try the question whether' the duty to which the officer was assigned required him to be mounted; and his furnishing horses and rendering mounted service gives him no right which can be enforced by law.

But in September, 1892, the general commanding the Department of Texas, in whose command the claimant was and who had theretofore certified that the claimant’s duty as commander of a battalion required him to be mounted, addressed a communication to the Major-G-eneral Commanding the Army of the United States, General Schofield, stating that he had so far given certificates and that it did not seem to him “fair to ask an infantry officer to do mounted duty as required by the recently adopted tactics, and compel him to furnish his own mount,” and asking his instructions upon the questions, “Shall infantry captains, when acting as majors, receive the pay of a mounted officer of the grade of captain?” and “Are they entitled to forage when furnishing their own mounts ? ”

The Major-General Commanding had previously decided in a similar case coming from another military department “ That at the present time it is not practicable to furnish horses as requested, and when all the officers can not be mounted, the ceremonies will be performed dismounted.”

This answer was returned to General Wheaton, and thereafter he refused to certify the claimant’s pay accounts. This, so far as paymasters of the Army were concerned, stopped Captain Eskridge’s pay as a mounted officer.

But General Wbeaton, at the time when he declined to certify the pay account, gave to Captain Eskridge the following certificate :

“I hereby certify that Captain R. I.Eskridge, 23d Infantry, was, from September 1,1893, to October 31, 1893, on duty, which, in my opinion, required him to be mounted.
“His pay accounts for that period were not so certified by me by reason of the views of the Major-General Commanding the Army, expressed in communication dated September 15,1892, that the duty (that of battalion commander under par. 255, Infantry Drill Regulations, U. S. Army) is not of a character to warrant the department commander’s certificate under A. R. 1443.’”

Declining to certify the pay' accounts was manifestly a proper compliance on General Wheaton’s part with the views expressed by the commanding general. Giving the above certificate was manifestly a proper and just act on the part of General Wheaton to place Captain Eskridge right on the record iind secure to him whatever legal right in the premises he might have.

It may be said that the certificate establishes the fact that in the opinion of the department commander the duty which Captain Eskridge performed was one which required him to be mounted, and therefore that Captain Eskridge was justified in continuing to render mounted service and is entitled to recover the pay which the law affixes to such service. The court, however, can not look into the'mind and motives of the department commander, but must be governed by his official acts. General Wheaton, doubtless, like many another man, was convinced against his will, but he nevertheless, so far as the record discloses, adopted his superior officer’s opinion as his own official opinion and acted accordingly. The action of the court must be regulated by General Wheaton’s official opinion and by his acts.

But it seems to the court equally clear that this change of official action should not operate retroactively upon the legal rights of the claimant. Captain Eskridge ha<l been assigned to this duty; the department commander had certified that it was a duty which required him to be mounted; he had j>ro-cured horses and furnished forage on the faith of that decision ; from the first of May to the last of August he had been paid as a mounted officer; from the first of September to the last of October lie continued to furnish horses and forage and per ■ form the same duty amid the same circumstances. Such were the facts when he went at the close of the bimonthly period for which the Army is paid, October 31,1892, to procure a certificate on his pay account similar to the certificates previously given to him. The facts constitute an estoppel, concerning services rendered up to that date, under the decision in Duval’s Case (25 C. Cls. R., 46), and the certificate which General Wheaton then gave, though not attached to a pay account and probably not sufficient to authorize a paymaster io pay Oaptain Eskridge as a mounted officer for the bimonthly period of September and October, nevertheless establishes the essential facts required by the Army Regulations, viz, that Oaptain Eskridge kept two horses in the service of the United States and furnished forage, and that the duty which he rendered was, in the opinion of his department commander, one which required him to be mounted.

The conclusion of the court, therefore, is that subsequent to the 31st October, 1892, Oaptain Eskridge furnished horses and forage at his own risk and cost, and for them he can not recover.

The judgment of the court is that for the months of September and October, 1892, he recover for his pay as a mounted officer, $46.66$ and for the months of May, June, July, August, September, and October, 1892, for his forage for two horses, $96, amounting in the aggregate to $142.66.  