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

[ Congressional,

12774-1.

Decided May 20, 1909.]

*On the Proofh.*

When an officer is appointed second lieutenant in tlie Army July 25, 1899, tlie Revised Statutes are in force, and they allow pay for traveling expenses from the place of discharge to the place of residence, at the rate of one day’s pay for every twenty miles of travel. When the officer is discharged from the service June 30, 1901, the *Act 26th May, J900,*is in force, allowing only 4 cents per mile. The question in the case is whether tlie officer is entitled to mileage at the rate established by law at the time when he was appointed.

I.The purpose of the Revised Statutes, § 1289, and of the *A at 26th May, 1900*(31 Stat. L., p. 210), was to meet the probable expenses of an officer’s transportation and subsistence from the place of his discharge to the place where he entered the service, and the mileage allowed by either statute was in the nature of indemnity.

II.It is within the power of Congress, after an officer has entered the service, to reduce his mileage upon discharge. His right to this mileage does not rest upon contract, express or implied, *but upon*statutes which may be changed or repealed by Congress.

III.In such a ease, where the law determines the right, equity can not be invoked.

*533*The Reporters’*statement of the case:

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.

The claimant appeared and filed his petition herein March 26, 1907, in which he avers substantially that lie 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, I). 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 ivas 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, amounting to $483.89.

The following are the facts now found by the court:

I. On July 25', 1899, while Revised Statutes, section 1289, was in force, the claimant accepted, at Washington, D. C., his place of residence, a commission as second lieutenant in the Thirtieth Regiment United States Infantry, at a salary of $116.67 per month, 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 so mustered out the act of May 26, 1900 (31 Stat. L., 210), was in force, and under said *534act the claimant was paid 4 cents per mile travel pay from San Francisco to Washington, D. C., a distance of 8,132 miles, amounting to $125.28.

*Mr. William E. Harvey*for the claimant. *Messrs. Geo. A. & Wm. B. King*and *Messrs. Lyon & Lyon*were on the brief.

*Mr. 8. 8. Ashbaugh*(with Avhom. was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

PeelijE, 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 not 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 XT. S., 680, 685; *United States*v. McDonald, 128 U. S., 471, 473.) In the latter case, involving a question similar to the one in the present case, it was held that the claim rested “ not upon any contract, express or implied, with the Government, but upon the acts of Congress which provide for his compensation.” And, further, it was said that “ the compensation paid to public officers of the United States for their services or for traveling expenses incidental thereto is always under the control of Congress, except in the cases of the *535salaries of the President and the judges of the courts of the United States.”

It follows that as the claimant in the present case was paid under the act in force when he was discharged, the legal liability of the Government was thereby satisfied; and as the law has determined the claimant’s right, equity can not intermeddle. Equity can not be invoked to abrogate even the rigor of the law. Hence, any additional payment to the claimant for the travel performed by him is a matter resting not on legal or equitable grounds, but alone in the bounty of Congress.

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