
    OSCAR D. DUNCAN v. THE UNITED STATES.
    [No. 23267.
    Decided February 27, 1905.]
    
      On the Proofs.
    
    An officer on duty at Norfolk is ordered to report at Boston for duty “in connection with a draft of men to he transferred to Mare Island, California.” Before tbe order takes effect at Norfolk the draft of men at Boston has been sent forward. On arriving in Boston the officer is ordered to proceed to Mare . Island. He does so, traveling in the usual way.
    I. Where an officer in Boston is ordered by competent authority to proceed to Mare Island, he will be traveling under orders and entitled to mileage.
    II. It is no defense that the Navy Department intended that the officer should accompany a draft of men from Boston if he failed to do so because the order was not transmitted to him in time.
    
      III. Constructive travel is where an officer is paid for travel where there was none. Actual travel under one order can not be held to have been constructively performed under another order which intended that the officer should travel on duty with a draft of men.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. On the 30th of October, 1899, the Navy Department telegraphed to the commandant of the Boston Navy-Yard concerning certain, officers, of whom the claimant was one, “ Upon reporting to you, instruct them to proceed immediately to Mare Island.”
    II. On the 31st of October, 1899, Admiral Sampson, commandant of the Boston Navy-Yard, gave this order to the claimant: “ Proceed immediately to Mare Island, California, and report to commandant of that station.”
    III. During the period covered by this claim the claimant was an ensign in the United States Navy.
    IY. On October 27,1899, there was issued by the Secretary of the Navy the following order, addressed to the claimant:
    “ You are hereby detached from duty on board the U. S. S. Texas; will proceed, without delay, to Boston, Mass., and report to the commandant of the navy-yard at that place for duty in connection with a draft of men to be transferred from the U. S. S. Olympia, navy-yard, Boston, Mass., to Mare Island, Cal.
    “ Proceed to Mare Island, Cal., and report to the commandant of the navy-yard at that place on November 9, 1899, for passage in the U. S. S. Solace to the Asiatic Station, and upon your arrival on the Asiatic Station report to the commander in chief for such duty as he may assign you.
    “ You are authorized to apply to the army quartermaster, accompanying your application with a certified copjr of these orders, for transportation for 150 pounds of baggage by express.”
    This order was received on' board the U. S. S. Texas, where the claimant was on duty, at Norfolk, Va., at 3 p. m., October 28, 1899, when the claimant was detached from the Texas. The claimant left Norfolk, Va., at 5 p. m., October 29, and arrived at Boston October 31, 1899. The draft of men which claimant was directed to accompany from Boston to Mare Island had left Boston, Mass., on October 29, 1899, and he did not accompany any enlisted men from Boston to Mare Island.
    Upon reporting to the commandant at Boston he received the order set forth in finding n to proceed immediately to Mare Island. Upon reporting to the commandant at Mare Island he was directed to report to the commanding officer of the Solace.
    Upon reporting to the commanding officer of the Solace, he was not given passage as a passenger to the Asiatic Station, but was immediately assigned to duty by the commanding officer of the Solace, November 7, 1899.
    V. The Navy Department Regulations, paragraph 226, provide as follows:
    “An order from the Secretary of the Navy to an officer requiring him to proceed to any point, but fixing no date and not expressing haste, shall be obeyed by leaving within four days after its receipt. If the order reads ‘ without delay ’ he shall leave within forty-eight hours; if ‘ immediately,’ within twelve hours; and all officers shall indorse on their orders the date and hour of their receipt.”
    VI. The distance from Boston, Mass., to Mare Island, Cal., is 3,329 miles. If the claimant is entitled to mileage from Boston, Mass., to Mare Island, Cal., there would accrue to him the sum of $101.16, in accordance with the following-statement :
    2,314 miles, at 7 cents per mile_$161. 98
    1,015 miles, at 4 cents per mile_ 40. 60
    202. 58
    Less amount allowed liim by the accounting officer for travel expenses-_- 101. 42
    Balance _$101.16
    
      Messrs. George A. and William B. King for the claimant.
    
      Mr. John Q. Thompson (with whom was Mr. Assistant Attorney-General Pradt).
    
   Nott, Cli. J.,

delivered the opinion of the court:

The law in this case is thus declared by statute: “ When any officer travels under orders, and is not furnished transportation by the Quartermaster’s Department, or on a conveyance belonging to or chartered by the United States, or on any railroad on which the troops and supplies of the United States are entitled to be transported free of charge, he shall be allowed seven cents a mile, and no more, for each mile actually traveled under such order.” (Acts 27th July, 1876, 19 Stat. L., p. 97, 100, sec. 2; 3d March, 1899, 30 id., 1064, 1068, sec. 1.)

The claimant in this case was not furnished transportation by the Quartermaster’s Department, and he did not travel on “ a conveyance belonging to or chartered by the United States, or on any railroad on which the troops and supplies of the United States are entitled to be transported free of charge.” Therefore, if he traveled “ under orders,” he was entitled to mileage.

On the 30th of October, 1899, the Navy Department teh egraphed to the commandant of the Boston Navy-Yard concerning certain officers, of whom the claimant was one, “ Upon reporting to you, instruct them to proceed immediately to Mare Island; ” and on the 31st of October Admiral Sampson, commandant of the Boston Navy-Yard, gave this order to the claimant: “ Proceed immediately to Mare Island, Cal., and report to commandant of that station.” The claimant was, therefore, traveling “ under orders,” which were given by competent authority, and his case comen directly within the terms of the statute.

The grounds of the defense are these:

On the 27th October, 1899, the claimant, an ensign in the Navy, was attached to and doing duty on board the U S. S. Texas, then lying at Norfolk, Ya. On that day the Navy Department issued an order saying: “You are hereby detached from duty on board the U. S. S. Texas; will proceed, without delay, to Boston, Mass., and report to the commandant of the navy-yard at that place for duty in connection with a draft of men to be transferred from the U. S. S. Olympia, navy-yard, Boston, Mass., to Mare Island, Cal.”

This order was received by the claimant on board the U. S. S. Texas at 3 p. m. October 28, 1899. The claimant started on his journey on October 29 at 5 p. m. When he so started, the draft of men to be transferred from Boston to Mare Island had left Boston.

The Navy Regulations (paragraph 226) provide: “An order from the Secretary of the Navy to an officer requiring him to proceed to any point, but fixing no date and not expressing haste, shall be obeyed by leaving within four days after its receipt. If the order reads ‘ without delay ’ he shall leave within forty-eight hours; if ‘ immediately,’ within twelve hours; and all officers shall indorse on their orders the date and hour of their receipt.” The claimant, therefore, was guilty of no delay in leaving Norfolk. lie did precisely what he was ordered to do. The fact that he did not start until after the draft of men had gone from Boston must be ascribed either to a blunder of some official in the Navy Department or to some mistake on the part of the commanding officer at Boston.

It has been suggested that the claimant was constructively traveling from Boston to Mare Island, under the first order which he received, with a draft of men, and on a railroad train belonging to or chartered by the United States. “ Constructive travel ” is travel Avliere an officer, by some fiction of law or fact, is paid for travel where there was none. In this case the travel was actual. To hold that it was constructive would be to hold that the officer was traveling on an imaginary conveyance belonging to or chartered by the United States, and with a phantom draft of men. It is not understood in this case that the Secretary of the Navy intended, by these orders, to deprive the claimant of his lawful reimbursement in the form of mileage; but if he had so intended, he could no more have changed the actual into the constructive than he could have changed an officer’s sea service into shore duty by the terms of an order. (Symond's case, 21 C. Cls. R., 148; 120 U. S. R., 46.)

The judgment of the court is that the claimant recover $101.16.  