
    ROBERT W. STEELE v. THE UNITED STATES.
    [No. 18233.
    Decided December 17, 1894.]
    
      On the Proofs.
    
    A naval constructor is on duty superintending work at the League Island Navy-Yard, Philadelphia. The Secretary of the Navy orders him "in addition to your present duties ” to take charge of the work on certain gunboats building at Chester. He continues to superintend at both places, going and coming between the two whenever necessary.
    I. The provisions of the Revised Statutes, section 1566, allowing 10 cents a mile to naval officers “for traveling expenses when under orders,” were repealed by the Act 16th June, 1874 (18 Stat, L,, p. 372), hut becam e in force though modified by reason of the A ct 30th June, 1876 (19 Stat L. p 65, sec 1), which repeals so much of the act 1874 “as is applicable to officers of the Navy,” ande allows to them 8 cents per mile in lieu of their actual expenses.
    
      II. An order of the Secretary of the Navy which does not relieve an officer from duty at the navy-yard, hut imposes upon him additional duty at another and requires his personal attention at hoth, entitled him to mileage for travel between the two, and invests him with discretion to determine when his presence is necessary at either. Such travel is travel “ under orders.”
    
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimant, a naval constructor in the United States Navy, received the following orders:
    “Navy Department,
    “ Washington, October 31,1885.
    
    “ Sir : Ton are detached from the board of inventory, and you will take charge of the work in completing the steel cruisers Chicago and Boston, at the Delaware River Iron Works, at Chester, Pa., under such general and specific instructions as you may receive from time to time from the Chief Constructor of the Navy, and you will proceed and report to him in person at the Morgan Iron Works, New York, on the 3d November next, and then proceed to Chester, Pa., to enter upon your duties at that place.
    “This employment on shore duty is required by the public interests, and such service will continue until 3d November, 1886, unless it is otherwise ordered.
    “Respectfully,
    “ W. 0. Whitney,
    “ Secretary of 'the Navy.
    
    “Naval Constructor Robert W. Steele,
    “United States Navy,
    “ Philadelphia, RaP
    
    “Navy Department,
    “ Washington, November 20,1885.
    
    “Sir: In addition to your present duties you will ‘proceed to the navy-yard, League Island, Pa., and report to the commandant of the navy-yard for duty, as the relief of Naval Constructor W. H. Varney.’
    “You will perform such travel as may be necessary for the proper execution of the duties assigned you under the Department’s order of the 31st of October, last, in connection with the new cruisers.
    
      “You will keep an account of tbe travel tbus performed and submit a memorandum of tbe same to tbe Department for its approval.
    ££ Yery respectfully, “ D. B. Harmony,
    
      “Acting Secretary of the Navy.
    
    “Naval Constructor Bobert W. Steele,
    “ United States Navy,
    “ Chester, PaP
    
    “Navy Department,
    “ Washington, June 30,1887.
    
    “ Sir : You are bereby detached from tbe duty assigned you at Chester, Pa., under tbe Department’s order of tbe 31st October, 1885, but you will continue in tbe performance of your duties at tbe navy-yard, League Island, Pa. “Bespectfully,
    “D. B. Harmony,
    
      uActing Secretary of the Navy.
    
    “ Naval Constructor Bobert W. Steele,
    “ United States Navy,
    “Navy-Yard, League Island, PaP
    
    “Navy Department,
    
      11 Washington, November 5,1887.
    
    “Sir: In addition to your present duties you will take charge of tbe work on the bulls of gunboats Nos. 3 and 4, to be built at tbe Delaware Biver Iron Works, Chester, Pa., under contract with Messrs. N. H. Palmer & Co., of New York. Tbe vessels are now being laid down, and you will proceed to Chester immediately and report by letter for further instructions to tbe Chief Constructor of the Navy.
    “Very respectfully,
    “D. B. Harmony,
    
      “Acting Secretary of the Navy.
    
    “Naval Constructor Bobert W. Steele,
    “United States Navy,
    
      ‘Navy-Yard, League Island, PaP
    
    “Navy Department,
    “ Washington, February 5,1891.
    
    “Sir: You are relieved from duty at Chester, Pa. Proceed to tbe navy-yard, New York, and report to tbe commandant' for special duty to superintend tbe completion of tbe contract work on tbe Concord and Bennington.
    
    
      “You. will perform such, travel between New York and Philadelphia, Pa., as may be necessary to enable yon to perform this duty in addition to your present duty.
    “Respectfully,
    “B. F. Tract,
    
      “Secretary of the Navy.
    
    “Naval Constructor R. W. Steele,
    “ United States Navy,
    “ Chester, Pa.”
    
    “Navy Department,
    “ Washington, April 14,1891.
    
    “ Sir : On the 30th instant you will regard yourself detached from duty at the navy-yard, League Island, Pa., and from such other special duties as may have been assigned you from time to time, and will proceed to San Francisco, Cal., for duty as inspector of the construction of the new vessels being built for the Government under contract with the Union Ironworks at that place. On your arrival you will report by letter to the Chief, Bureau Construction and Repair, also to the commandant, navy-yard, Mare Island, Cal.
    “This employment on shore duty is required by the public interests, and such service will continue until 1st May, 1894, unless it is otherwise ordered.
    “J. R. Solet,
    
      “Acting Secretary of the Navy.
    
    “Naval Constructor R. W. Steele,
    “United States Navy,
    
      11 Navy-Yard, League Island, Pa.”
    
    II. Pursuant to the orders of October 31 and November 20, 1885, he traveled back and forth between Chester and Philadelphia, Pa., after November 20, 1885, until June 30, 1887, when he was detached from the duty assigned to him at Chester, and for such travel he was paid mileage at the rate of 30 miles for the round trip. These trips were made on'his own judgment; he was governed by his own views in making them.
    III. Pursuant to said order of November 5,1887, the claimant proceeded to Chester, and on November 7,1887, reported by letter to the Chief Constructor of the Navy for further instructions, which were given to him from time to time, concerning the work on the hulls of said gunboats Nos. 3 and 4, as in said order contemplated. Such instructions required the claimant to familiarize himself with the plans and specifications and to note all departures from such specifications with tbe authority therefor, and to estimate the amount of material which, after the requisite inspection and tests, had been used; the estimated amount of labor which had been expended in the construction of the hulls of said gunboats, and to give his judgment with reference to the quality of the material used and of the work performed, and whether the amount claimed for the construction of the hull of such vessels from time to time as the work progressed had been earned by the contractor; also as to the mode of keeping a record of the weights and materials used and the manner of making reports to the Chief Constructor of the N avy. No specific instruction was given by the Chief Constructor authorizing the claimant to travel or to keep an account thereof; but the claimant, in the discharge of his duties under the order and instructions so given to him, traveled on his own judgment between Philadelphia and Chester, Pa., from November 8, 1887, to February 5, 1891, making, in all, during said period 483 round trips, 19 of which trips were prior to and one on the 10th day of January, 1888, leaving 463 round trips performed subsequent to January 10, 1888.
    IV. The claimant presented his claim to the Treasury Department for this mileage, and it was rejected December 7, 1891, by the accounting officers. The reason given by them was:
    “ For the reason that claimant was attached to the navy-yard, League Island, Pa., and there is nothing in his orders' from the Department or Bureau of Construction that required him to travel daily between Chester and Philadelphia.”
    And for this travel claimant has never received any mileage.
    V. The distance from Philadelphia to the claimant’s place of business in Chester, Pa., and return, by the shortest usually traveled route, is 30 miles.
    VI. The gunboats Nos. 3 and 4 were subsequently called the Concord and Bennington, and after February 5, 1891, when they were transferred to New York, the claimant, in superintending their completion, traveled between Philadelphia and New York until the order of April 14, 1891, and for such travel he has received mileage. In making these trips he was governed by his own judgment.
    VII. During the period from November 7,1887, to February 5,1891, covered by such travel, the claimant had under him, in addition to a large number of laboring men, clerks, and draftsmen at tbe League Island Navy-Yard, 4 clerks, 4 draftsmen, 2 naval carpenters, 1 naval boatswain, and 1 messenger at Chester, and during his absence he would plan such work as could be done by them. He received daily reports by letter or otherwise as to the progress of the work done on the gunboats, and was thereby enabled to determine when, in his judgment, his presence would be necessary at Chester in the discharge of his duties under the order at that place.
    VIII. The trips between Chester and Philadelphia Navy-Yard, mentioned in the third finding, were necessary to the proper discharge by claimant of the duties to which he was assigned at both places.
    
      Mr. John S. Blair for the claimant.
    
      Mr. Oonway Robinson (with whom was Mr. Assistant Attorney- General Bodge) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

On the 5th of November, 1887, the claimant was and for a long time prior thereto had been performing duty under the order of the Secretary of the Navy at the League Island Navy-Yard, in Philadelphia, Pa.

On that date the Secretary of the Navy addressed to the claimant a communication, of which the following is a copy:

“Navy Department,
“Washington, November 5, 1887.
“ Sir : In addition to your present duties you will take charge of the work on the hulls of gunboats Nos. 3 and 4, to be built at the Delaware River Iron Works, Chester, Pa., under contract with Messrs. N. H. Palmer & Co., of New York. The vessels are now being laid down, and you will proceed to Chester immediately and report by letter for further instructions to the Chief Constructor of the Navy.
“ Very respectfully,
“D. B. Harmony,
uActing Secretary of the Navy.
“Naval Constructor Robert W. Steele, U. S. N.,
“Navy-Yard, League Island, PaP

As contemplated by that order, instructions were given to the claimant from time to time, by the Chief Constructor of the Navy, concerning the work to be done by him on the vessels named in the order, the substance of which is set forth in the findings.

Neither in the order nor in any of the instructions referred to was the claimant given authority to travel other than as stated m the order, nor to keep an account thereof in the discharge of his duties thereunder; but the travel performed by the claimant in the discharge of said duties was made on his own judgment as to the wisdom and necessity thereof, and he seeks in this action to recover the 8 cents per mile therefor in lieu of actual expenses provided for by Revised Statutes, section 1566, as modified by the Act June 30, 1876, section 1 (19 Stat. L., 65).

The defendants’ counsel contends that because the order referred to did not in terms require the claimant to travel he can not recover; while the claimant contends that the order requiring him, in addition to his duties at the League Island Navy-Yard, in Philadelphia, “to proceed to Chester immediately” and take charge of the work on the hulls of gunboats Nos. 3 and 4, at Chester, Pa., was in effect and purpose an order to perform such travel thereafter between Philadelphia and Chester as in his judgment might be necessary to enable him to execute the order and the instructions therein contemplated.

Revised Statutes, section 1566, provides:

“ Sec. 1566. An allowance of 10 cents a mile may be made to officers in the naval service and storekeepers on foreign stations for traveling expenses when under orders. And an allowance may be made to officers traveling in foreign countries under orders for expenses of transportation' of baggage necessarily incurred.
“And no officer shall be paid mileage except for travel actually performed at his own expense and in obedience to orders.”

The Army appropriation act, June 16, 1874, section 1 (18 Stat. L., 72), provided:

“Only actual traveling expenses shall be allowed to any person holding employment or appointment under the United States, and all allowances for mileage and transportation in. excess of the amount actually paid are hereby declared illegal; and no credit shall be allowed to any of the disbursing officers of the United States for payment or allowances in violation of this provision.”

While the naval appropriation act, June 30, 1876, section 1 (19 Stat. L., 65), provides:

“ So much of the act of June 16,1874, etc., as provides that only actual traveling expenses shall be allowed to any person holding employment or appointment under the United States while engaged on public business as is applicable to officers of the Navy so engaged is hereby repealed; and the sum of 8 cents per mile shall be allowed such officers while so engaged, in lieu of their actual expenses.”

So that by this latter act so much of the act of 1874 (supra) as applied to officers in the Navy was repealed, and the defendants’ counsel contends that this had the effect to revive section 1566, notwithstanding Revised Statutes, section 12.

But for the'purposes of this case we will not consider the question further than to say that this court, in Crosby’s Case (22 C. Cls. R., 133), held that section 1566 was modified by the act 1876 (supra). And in the Hutchins Case (27 C. Cls. R., 137, 139), the court held in substance that section 1566 gave mileage; the act 1874 took it away, while the act 1876 restored it; so that, without considering the question as to whether section 1566 was repealed by the act 1874, or whether, if thereby repealed, the same was revived when the act 1876 repealed so much of the act 1874 as applied to officers in the Navy, we think it clear that section 1566 was in force, as modified by the act 1876, at the time the claimant performed the travel for which he sues.

In this view of the case, so sustained by previous decisions of this court, we turn to Revised Statutes, section 1566, where, as modified by the act June 30, 1876 (supra), it is provided that “8 cents per mile shall be allowed” to officers in the Navy for traveling expenses “when under orders.” The case therefore turns on the construction to be given to the words “ when under orders” as used in said section. What do they mean ? An officer in the Navy is subject to the orders of his superior officers when acting within the line of their official duties, and when so ordered it is his duty to execute such order, if he can thereby ascertain what duty is required of him, without questioning the wisdom or expediency of such order or omissions therefrom affecting his personal or pecuniary interests in the execution thereof, as the public business is the first and paramount duty of every officer of the United States, and “public business is tbe foundation on which mileage rests.” (Perrimond’s Case, 19 C. Cls. R., 509, 511; Du Bose et al., id., 514, 519.)

The order required the claimant, in addition to his duties at the League Island Navy-Yard in Philadelphia, to “ take charge of the work on the hulls of gunboats Nos. 3 and 4, to be built at the Delaware River Iron Works, Chester, Pa.”

The order did not relieve him from duty at the League Island Navy-Yard, but in addition thereto imposed upon him the duty of taking charge of the work on the hulls of the gunboats to be built at Chester, so that he was required to perform duties at both places, and, having no instructions to the contrary, it was for him to determine whether or not he would intrust to his subordinates the discharge of duties which had been assigned to him as the responsible head because of his technical knowledge; and in the absence of any instructions to the contrary, he was also to determine when it was necessary for him to travel in the execution of the order. If, in the discharge of his duties under the order, it became necessary for him to travel between Philadelphia and Chester, and he did so, he was traveling “under orders” within the meaning of section 1566, as the order requiring him to take charge of the work at Chester necessitated such travel to enable him to comply therewith.

The court has found that the travel performed was necessary to enable the claimant to discharge the duties required of him by the order, and he is therefore entitled to recover 8 cents per mile therefor under said section as modified by the act 1876 (supra) for the travel performed by him within six years prior to the time of filing his petition herein.

The findings show that nineteen of the trips for which claimant seeks to recover mileage were before and one on the 10th of January, 1888, while the petition was filed herein January 10, 1894.

The court has therefore included in the judgment mileage only for those trips made subsequent to January 10,1888, the others being excluded as barred under the provisions of Revised Statutes, section 1069.

For the reasons stated judgment will be entered in favor of the claimant for the sum of $1,111.20.  