#### JOSEPHINE L. SCHREINER, ADMINISTRATRIX, *v.*THE UNITED STATES.

[No. 26067.

Decided May 25, 1908.]

*On the Proofs.*

The single question involved in this case is whether service as a clerk and messenger in the Quartermaster’s and Subsistence departments is “ *actual time of service in the Army*” to be allowed to officers when computing their longevity pay.

I. The *Act 2J/th February, 1881*(21 Stat. L., p. 346), provides that “ *the actual time of service in the Army or Navy, or both, shall be allowed all officers in computing their pay.”*Employment as clerk and messenger in the Quartermaster’s and Subsistence departments is not “ *service in the Army*” within the meaning of the statute.

II. A paymaster’s clerk in the Navy holds an appointment to such office and takes an oath to serve until regularly discharged, and must wear a uniform, and is subject to trial by court-martial. But a clerk or messenger in the Quartermaster’s or Subsistence department is a mere civilian and in no sense a part of the Army. Hence this case must be distinguished from that of *Sendee*(124 U. S. R., 309).

*The*Reporters’ statement of the case:

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

I. The claimant, Josephine L. Schreiner, is a citizen of the United States and a resident of the District of Columbia, and is the administratrix of Francis M. Schreiner, deceased.

II. From July 19, 1864, to September 80, 1869, inclusive, said Francis M. Schreiner was employed from civil life in the Commissary Department of the United States Army in the capacities of messenger, collector, and clerk. From April 1, 1810, to August 5, 1882, he was employed in the Quartermaster’s Department of the United States Army in *481the capacities of messenger and clerk. Said services cover a period of seventeen years six months and sixteen days.

III. On May 25, 1898, said Francis M. Schreiner accepted a commission as captain and assistant quartermaster of volunteers, in which capacity he served until July 14, 1898, when he was appointed major and quartermaster of volunteers. He served in the latter capacity until appointed captain and quartermaster in the Regular Army April 8, 1901. He was retired from active service on April 25, 1903, and died February 10, 1905, after the filing of the original petition herein.

IY. During the time said decedent served as captain in the army he was paid at the rate of $2,000 per annum; while serving as major he was paid at the rate of $2,500 per annum, and he was retired with three-fourths of the pay of a captain, mounted.

During said decedent’s service in the Quartermaster’s Department as aforesaid he was paid from the appropriation for the support of the army.

V. If the time said decedent served as an employee of the Commissary and Quartermaster’s departments should be counted as service in the army for the purpose of paying longevity pay, there would be due claimant as follows:

Pay as captain, over 15 years’ service, May 25 to July 13, 1898, 49 days_ $81.66

Pay as major, over 15 years’ service, July 14 to August 23, 1898, 1 month, 10 days_ 83.34

Making a total of- 165.00

due for the period prior to six years before the filing of the petition herein:

Pay as major, over 15 years’ service, August 24, 1898, to November 8,1900, 2 years, 2 months, 15 days-$1,656.25

Pay'as major, over 20 years’ service, November 9, 1900, to April 30, 1901, 5 months, 22 days- 477.81

Pay as captain, over 20 years’ service, May 1,1901, to April 25, 1903,1 year, 11 months, 25 days_:_ 1,588. 88

Pay as captain, retired, April 26,1903, to February 10,1905, 1 year, 9 months, 15 days- 1,075. 00

A total of_ 4,797.94

*482
      *Mr. Frederich B. Rhodes*for the claimant.

*Mr. George M. Anderson*(with whom was *Mr. Assistant Attorney-General John Q.*Thompson) for the defendants.

Atkinson, J.,

delivered the opinion of the court:

The single question involved in this suit is whether service as a clerk and messenger in the Quartermaster’s and Subsistence departments of the army is such service as to entitle one to longevity pay under the act of February 24, 1881 (21 Stat. L., 346), which is in the following language: “And the actual time of service in the army or navy, or both, shall be allowed all officers in computing their pay.”

Claimant’s decedent, Francis M. Schreiner, served as a clerk in the commissary department of the United States Army from July 19, 1863, to September 30, 1869, and from April 1,1870, to August 5, 1882, as a messenger and clerk in the Quartermaster’s Department. His terms of service in both of these departments covered a period of eighteen years six months and sixteen days.

He was appointed captain and assistant quartermaster of volunteers May 12, 1898, and accepted May 25, 1898; was appointed major and quartermaster July 14,1898 (under act of July 7,1898), and served as such until November 25,1898. November 26, 1898, he was appointed major, quartermaster of volunteers, accepted December 5, 1898, and was honorably discharged May 1, 1901. On February 2, 1901, he was appointed captain and quartermaster in the Eegular Army, and accepted April 8, 1901. He was retired from active service April 25, 1903, and never served outside the limits of the United States.

Claimant also relies upon the act of March 3, 1883 (22 'Stat. L., 473), which provides that:

> “All officers of the navy shall be credited with the actual time they may have served as officers or enlisted men in the Eegular or Volunteer Army or Navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous and in the Eegular Navy in the lowest grade, having graduated pay held by such officer since last entering the service.”

*483In construing the above statute the Supreme Court in the case of the *United States*v. *Hendee*(124 U. S. R., 309) decided that service as a paymaster’s clerk should be taken into consideration in computing longevity pay of officers of the navy, for the reasons that such position is one of importance; that an appointment to such office must be approved by the commander of the ship; that the one holding it must take an oath to serve until he is regularly discharged; that he must submit to navy discipline; that he has a fixed rank; that he must wear a uniform; that he is borne upon the pay roll and is paid accordingly; and that he is subject to trial by court-martial, etc.

Section 1190 of the Revised Statutes provides for the appointment of paymaster’s clerks from noncommissioned officers or privates of the army, and if such can not be procured then citizens may be employed at a salary of $1,200 a year, by and with the approbation of the Secretary of War. And the act of May 26, 1900 (31 Stat. L., 209) provides for the pay of army paymasters on a longevity basis. The pay status of such officers, therefore, is the same as regular army or naval officials in either branch of the military establishment. But we have failed to find any statute or decision of any court which places a civil service clerk in the Quartermaster’s or Subsistence department on a parity with paymaster’s clerk, in the army and navy. It can not be justly claimed that every one who has employment under the Government in immediate connection with the army belongs to or is serving in the army. Such persons are mere civilians and are in no sense a part of the army any more than any other class of clerks in the classified service of the Government.

We are, therefore, of the opinion, and so decide, that the status of claimant’s decedent while serving as messenger and clerk in the Quartermaster’s and Subsistence departments of the United States was that of a civilian not in the service of the army within the meaning of the act of February 24,1881, and the petition accordingly is dismissed.