#### HARRY McL. P. HUSE v. THE UNITED STATES.

[No. 28467.

Decided December 2, 1907.]

*On the Proofs.*

Professors in the Military Academy have the pay and allowances of colonels, lieutenant-colonels, and majors, with longevity pay, and they are appointed by the President. The claimant is an officer in the Navy performing the duties of a professor at the Naval Academy. He receives only his pay as an officer in the Navy and now seeks to recover the pay of a professor of relative rank in the Military Academy.

I. The *Act 3d, March, 1899*(30 Stat. L., 1007), provides that commissioned officers of the Navy shall receive the pay and allowances provided by law *“for the officers of corresponding ranlc in the Army;”*and the Revised Statutes (§1336) provide that the professors of the Military Academy *“shall have the pay and alloioances of colonel,”*of *“lieutenant-colonel,”*and of *“major."*But these provisions do not entitle a naval officer detailed to serve as professor in the Naval Academy to the pay specifically provided for professors in the Military Academy. The act of 1899 does not secure similarity of pay though both persons perform similar duties.

*20II. The office of professor in tlie Military Academy is not an Army office within the military acceptation of that term.

III. The *Act 28th June 1902*(32 Stat. L., 409), was designed to give rank to civilian professors *to*enforce military discipline at the Academy, but does not change the character of the office by the addition of actual rank in the Army.

*The Reporters'*statement of the case:

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

I. Harry McL. P. Huse entered tbe naval service September 30, 1874, reached the grade of lieutenant May 13, 1894, and remained in that grade until March 3, 1901, upon which date he was promoted to the grade of lieutenant-commander. He remained a lieutenant-commander until January 9, 1905, when he was appointed a professor of mathematics in the navy, with the rank of commander, in accordance with the provisions of the naval appropriation act approved April 27, 1904 (33 Stat. L., 345). On September 26, 1898, he was ordered to the Naval Academy, reported there on September 29, 1898, and remained there until June 11, 1900, when he was detached in obedience to the department’s order of May 31,1900.

On November 29, 1900, he reported for duty in command of the U. S. S. *Villalobos*in obedience to an order of the commander in chief of the Asiatic Fleet dated November 28, 1900. Pie remained on this duty until August 8, 1902, when he was detached in obedience to an order of August 3, 1902. The *Villalobos*was a vessel of the navy of the third rate and was on duty in the Philippine Islands. The order of the commander in chief of the Asiatic Station of November 28, 1900, is as quoted in the petition.

On October 3, 1902, Mr. Huse was again ordered to duty at the Naval Academy. He reported for this duty October 6, 1902, and has continued on duty at that institution to the present time.

II. On September 29, 1898, Lieutenant Huse, upon reporting at the Naval Academy, was assigned to duty as head of the department of modern languages, and he continued on that duty until June 11, 1900, when detached as aforesaid.

*21On reporting at the Academy October 6, 1902, Mr. Huse, then a lieutenant-commander, was assigned to duty as an instructor in the department of navigation. On December 15, 1902, he was made head of the department of modem languages and so remained until July 1, 1903, when the title of his duties was designated as “ in charge of the department of modern languages.” This continued until February 1, 1904, when he was again made head of the department of modern languages, which position he has retained up to the present time. During the period from July 1, 1903, to February 1, 1904, a civilian professor held the title “ head of department of modern languages.”

It appears, from the journal of the academic board at the Naval Academy, that during the period from July 1, 1903, to February 1,1904, Mr. Huse sat on the academic board and actually performed the duties of head of the department of modern languages, the same as during the periods when he was so designated.

The professor at the head of the department of modern languages at the Military Academy at West Point is appointed by the President and has the rank and pay of colonel in the army.

III. During the time covered by this claim, the claimant was only paid as a lieutenant at the rate of $2,200 a year, to March 3, 1901, when he became a lieutenant-commander, and after that date as a lieutenant-commander at the rate of $3,500 a year, except as hereinafter stated.

During the time for which additional pay is claimed for exercising a higher command than that pertaining to his grade while in command of the Villalobos, he was paid at the rate of pay of a commander in the navy, the rate appropriate to the higher command so exercised by him from November 28,1900, to March 2,1901, and from April 1,1901, to June 7, 1901. But the period from March 3 to 31, 1901, was not paid.

IV. The difference between the pay of a lieutenant-commander of more than twenty years’ service in the navy at $3,500 a year, already received by the claimant between March 3 and March 31, 1901, and the pay of a commander *22for the same period at the rate of $4,000 a year, would amount to $38.89.

Y. The difference between the pay of a lieutenant at $2,200 a year, which claimant has received, and the pay of a commander at $4,000 a year, corresponding to a lieutenant-colonel in the army, less 15 per cent for shore duty, from September 16, 1899, to June 11, 1900, is $1,130.50; and the difference between the pay of a lieutenant-commander on shore duty at $2,975 a year, which claimant has received, and the pay of a commander at $4,000 a year less 15 per cent for shore duty, from October 6, 1902, to January 8, 1905, is $1,967.58, making a total of $3,098.08.

*Mr. George A. King*for the claimant. *Messrs. George A. and William B. King*were on the brief.

*Mr. John Q. Thompson*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants.

Booth, J.,

delivered the opinion of the court:

Harry McL. P. Huse, the claimant herein, was assigned to duty at the Naval Academy on September 29,1898, as the head of the department of modern languages. He continued under said assignment until detached on June 11, 1900. During this entire period he occupied the grade of lieutenant in the navy. On October 3, 1902, he was again ordered to duty at the Naval Academy, and under the following assignments remained there, namely: From October 6, 1902, until December 15, 1902, instructor in the department of navigation; from December 15, 1902, until July 1, 1903, head of the department of modern languages; from July 1, 1903, until February 1, 1904, in charge of the department of modern languages; from February 1, 1904, to January 9, 1905, head of the department of modern languages, and during all the period of these latter assignments he held the grade of lieutenant-commander in the navy.

From July 1, 1899, to June 16, 1900, claimant was paid for services at the academy as lieutenant in the navy, and from October 6, 1902, to January 9, 1905, as a lieutenant-commander in the navy on shore duty. He now claims pay *23as a commander corresponding with the pay of a lieutenant-colonel in the army, and it is for this difference in pay he seeks recovery. This suit is predicated on the act of March 8, 1899 (30 Stat. L., 1007) :

> *“*That after June thirtieth, eighteen hundred and ninety-nine, commissioned officers of the line of the navy and of the Medical and Pay Corps shall receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the army: Provided, That such officers when on shore shall receive the allowances, but fifteen per centum less pay than when on sea duty.”

Claimant’s contention being that while a line officer of the navy performing the duties of a professor at the Naval Academy he became by virtue of the foregoing statute entitled to receive the same pay as a professor performing like services in the Military Academy.

Section 1336, Revised Statutes, as amended by the act of June 23, 1879 (21 Stat. L., 34), provides as follows:

> “ Each of the professors of the Military Academy whose service as professor at the academy exceeds ten years shall have the pay and allowances of colonel, and all other professors shall have the pay and allowances of lieutenant-colonels; and the instructors of ordnance and science of gunnery and of practical engineering shall have the pay and allowances of major; and hereafter there shall be allowed and paid to the said professors ten per centum of their current yearly pay for each and every term of five years’ service in the army and at the academy: Provided, That such addition shall in no case exceed forty per centum of said yearly pay; and said professors are hereby placed upon the same footing, as regards restrictions upon pay and retirement from active service, as officers of the army.”

Section 1313, Revised Statutes, page 226, provides as * follows:

> “ The superintendent, the commandant of cadets, and the professors shall be appointed by the President. The assistant professors, the acting assistant professors, and the adjutant shall be officers of the army, detailed and assigned to such duties by the Secretary of War, or cadets, assigned by the superintendent, under the direction of the Secretary of War.”

*24The Assistant Comptroller of the Treasurer, in passing upon this case, held:

> *“*The claimant while performing the duties as 4 head of the department of modern languages ’ at the Naval Academy did not come within the term 4 other professors ’ within the meaning of section 1336 of the Revised Statutes. * * *

> “ The position of professor at the Military Academy is an office separate and distinct from any other office in the army, the incumbent of which is appointed by the President and not detailed from the officers of the army.” * * *

We think the above conclusions clearly deducible from the foregoing statutes. The claimant during his first period of service at the Naval Academy ranked with a captain in the army and was paid accordingly. During his second service he ranked with a major in the army and received the pay of a major. The act of March 3, 1899, *supra,*in terms, fixes rank as the basis for assimilating pay between army and naval officers. Its meaning is not so comprehensive as to include within its operation a similarity of pay between a naval officer of the line of the navy regularly detailed to certain duty and a professor of the Military Academy appointed by the President and in no wise subject to army detail, although both persons may in fact perform similar duties. *(Stevens*v. *United*States, 41 C. Cls., 455.)

A professor at the Military Academy may or may not be an army officer. No authority appears whereby an officer of the army may be detailed for such service, and in this respect at least Congress has not evinced an intention to place army and navy professors upon a similar basis as respects their pay. The office of professor at the Military Academy is not an army office within the military acceptation of that term. It is created by statute, is supplied by appointment, rank with limitations assigned, and although it exclusively „ concerns the military arm of the Government is made a separate and distinct office in order that peculiar fitness and competency for the position may obtain. The case of *Crosley*v. *United States*(196 U. S., 327) is not analogous. In the *Crosley case*the claimant was regularly detailed to perform the services as an aid to a rear-admiral. There was a corresponding office and rank in the army to which officers of *25the army under regulations could be detailed, and the court very properly assimilated the pay of the corresponding officers. In this case the statute provides for the manner of appointment and pay of a professor of the Military Academy in a way peculiar to the particular office to be supplied and not to the army in general.

The act of June 28, 1902 (32 Stat. L., 409), evidently designed by its limitations to give rank to civilian professors ; to establish and enforce military discipline at the Military Academy, does assign actual rank to the professors. It does not, however, repeal or modify section 1313, Revised Statutes, by bringing the officers therein mentioned within the purview of military law in respect to their appointment. The character of the office itself is not changed by the addition of actual rank in the army.

We are therefore of the opinion that as to these two items the claimant can not recover. In any event a certain portion of the amount claimed for is barred by the statute of limitations. The amounts stated in the findings are the correct amounts, not coming within the statute of limitation.

There is a small item claimed for exercising higher command while commanding the U. S. S. *Villalobos*(Finding IY). This item is allowable under *Thomas*v. *United States*(39 C. Cls., 1).

Judgment will therefore be awarded the claimant in the sum of $38.89.