#### ROBERT H. GULICK v. THE UNITED STATES.

[Congressional,

12774-1.

Decided March 9, 1908.]

*On the Proofs.*

The claimant becomes an officer of volunteers in July, 1899. At the time he enters the service the Revised Statutes, section 1289, are in force allowing to an officer at the end of his service travel pay and commutation of subsistence *“for such time as may*6e *sufficient for him to travel from the place of his discharge to the place of his residence*” “ *computed at the rate of one day for every twenty miles.”*When this officer is discharged the law has been changed by the act 26th May, 1900, allowing to an officer four cents a mile.

I. The purpose of the statutes making allowance to officers on their discharge from the service for their traveling expenses to their homes is of the nature of an indemnity.

II. It is within the power of Congress to change the law allowing indemnity or commutation to officers on their discharge from service for traveling expenses to their homes; and an officer so paid has no legal or equitable claim against the Government for a larger amount than that allowed by the law at the time of his discharge.

*The Reporters’’*statement of the case:

The following is the preliminary statement of the court with the facts found:

The claim herein, for difference in travel pay as second lieutenant in Company L, Thirtieth Regiment U. S. Infantry Volunteers, provided for by Revised Statutes, section 1289, and the amount received under the act of May 26, 1900, was referred to the court, on January 29, 1907, by the Committee on War Claims of the House of Representatives.

*307The claimant appeared and filed his petition herein March 26, 1907, in which he avers substantially that he was commissioned a second lieutenant in Company L, Thirtieth Regiment U. S. Infantry Volunteers, on the 5th day of July, 1899, under the act of March 2, 1899; that he accepted his commission and was mustered into the military service of the United States at Washington, D. C., his place of residence, and served honestly and faithfully upon the Pacific Ocean and in the Philippine Islands until he was honorably discharged and mustered out with his regiment at San Francisco, Cal., on June 30, 1901; that upon his discharge at San Francisco he was allowed and paid travel allowances at the rate of 4 cents from the place of his discharge to his home in Washington, where he entered the service; that at the time he entered the service Revised Statutes, section 1289, was in force and continued in force until May 26, 1900, at which latter date the rate for travel allowances was fixed at 4 cents per mile; that he claims the difference between what he would have been entitled to under Revised Statutes, section 1289, and said act of May 26, 1900.

The following are the facts of the case as found by the court:

On July 25, 1899, the claimant accepted, at Washington, D. C., his place of residence, a commission as second lieutenant in the Thirtieth Regiment U. S. Infantry, and served as such in the Philippine Islands until mustered out and discharged at San Francisco, Cal., by reason of expiration of his term of service, June 30, 1901.

At the time the claimant was .mustered out he was paid 4 cents per mile travel pay from San Francisco to Washington, D. C., a distance of 3,132 miles, amounting to $125.28. .

*Mr. 'William E. Harney*and *Mr. Georye A. King*for the Claimant. *Messrs. George A. <& William B. King*and *Lyon (& Lyon*were on the brief.

*Mr. S. 8. Aslibaugh*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

Peelle, Ch. J.,

delivered the opinion of the court:

When the claimant entered the service Revised Statutes, section 1289, was in force. That section provided that when *308not furnished in kind the officer should be “ allowed travel pay and commutation of subsistence, according to his rank, for such time as may be sufficient for him to travel from the place of his discharge to the place of his residence or original muster into service, computed at the rate of one day for every twenty miles.”

That section continued in force until, by the act of May 26, 1900 (31 Stat. L., 210), travel pay, upon the discharge of an officer, was fixed at 4 cents per mile from the place of his discharge to the place of his residence at the time of his appointment or to the place of his original muster into the service.

The purpose of both statutes was to meet the probable expenses of transportation and subsistence from the place of discharge to the place where the officer entered the service, and was in the nature of indemnity *(see Sherburne’s*case, 16 C. Cls. R., 491).

That it was within the power of Congress to change the law after the claimant had entered and while he was in the service is not controverted *(Embry*v. *United*States, 100 U. S., 680, 685; *United States*v. McDonald, 128 U. S., 471, 473). That being so, and the claimant having been paid under the act in force when he was discharged and having accepted the same without objection or protest so far as appears of record, the claim, instead of resting in equity and good morals, as the claimant contends, is one the settlement of which, under the law in force at the time, should be considered as final.

The foregoing finding, together with a copy of this opinion, will be certified to Congress.