#### HENRY WILLIAMS v. THE UNITED STATES.

[No. 30055.

Decided January 4, 1909.]

*On the Proofs.*

Messmen on the receiving ship Hancock are detailed by the Navy Department for duty as attendants on an officers’ mess on shore. They being subsisted by the officers their rations are commuted at thirty cents a day and paid to the mess. But the accounting officers require the members of the mess to refund the money. One of them .complies with the order and now seeks to recover back the money.

*176I.The Navy Regulations (§§'1115, 1120) which allow the detail of enlisted men to prepare and serve food for officers’ messes extend only to messes on board ship. Officers’ messes on shore are voluntary and there is no law or regulation which recognizes them.

II.Where enlisted men on shipboard were detailed to serve an officers’ mess on shore and were subsisted by the mess and their rations were commuted and paid to the mess the accounting officers could disallow the payment and compel the officers to refund the money.

III.The *Act 1st July, 1902*(32 Stat. L., p. 662, 680), authorizing the payment of money accruing from the rations of enlisted men “ *commuted for the benefit of any mess*” does not extend to an officers’ mess on shore.

*The Reporters'*statement of the case:

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

I. The claimant, as assistant naval constructor in the United States Navy, while regularly detailed for duty at the navy-yard, Brooklyn, N. Y., was a member of the officers’ mess at that yard between October, 1904, and February, 1905. Said mess was not subject to the Navy Regulations, but was subject to the official orders of the commandant of the yard, who was not a member thereof, and was governed by regulations of the New York Navy-Yard and Station; and officers weré permitted to mess therein at their option for their own convenience.

II. During said period certain enlisted men of the navy, enlisted for duty as mess men or servants in navy, on the U. S. receiving ship Hancock, were detailed by the Navy Department for duty as attendants on said mess on shore and were subsisted at said mess. Said enlisted men were not subsisted by the Government- and have not been paid the 30 cents a day in lieu of subsistence, but instead the 30 cents a day was paid to the treasurer of said mess for their subsistence» by the mess.

III. The accounting officers of the Treasury subsequently directed the collection of all such payments from the members of the mess and the payment of the money into the Treasury of the United States. The amount which claimant was thus compelled to return was $59.36, and he has not *177been reimbursed for said amount either by the. Government or the enlisted men.

IV. If the members of said mess ar.e entitled to the 30 cents a day in lieu of the daily ration for each of said enlisted men, the amount due to claimant is' $59.36.

*Messrs. Pack & Hinton*for the claimant.

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

Per Curiam :

In the act of July 1, 1902, making appropriation for the naval service, the last paragraph under the heading of “ supplies and accounts ” (32 Stat. L., 662, 680) provides: “ That money accruing from the rations of enlisted men commuted for the benefit of any mess may be paid on public bills to the commissary officer by the pay officer having their accounts.”

Sections 1115 and 1120, Navy Regulations of 1900, as well as 1905, have reference only to officers’ mess on board ship, and whatever practice may have grown up respecting the detail of enlisted men on shipboard to prepare and serve food to the officers thereof can have no application to officers’ mess on shore, nor is there any law authorizing the regulation of officers’ mess on shore. Officers on shore are at liberty to get their.meals when and how they please, and if they for economical reasons or otherwise unite in forming a mess on shore that is their own concern and no regulation respecting it other than that of their own making is required, and membership therein is entirely optional with them.

Revised Statutes, section 1232, providing that “No officer shall use an enlisted man as a servant in any case whatever,” is equally applicable to officers of the navy, at least on shore. Section 1034, Navy Regulations 1905, respecting enlisted men in the marine service, is equally ás explicit, so that whatever authority there may be for the enlistment of mess men of the servant class on board ship can have no application to a private mess formed by officers on shore.

By the act cited the pay officer is authorized to pay “ money accruing from the rations of enlisted men commuted for the benefit of any mess * * * to the commissary *178officer,” whose detail is provided for by section 387 and his responsibilities fixed by section 753 of the Navy Regulations. In construing that statute the comptroller, as we think rightly, said: “ I am of opinion that the provision referred to in said act of July 1, 1902, contemplates messes on board subject to the Navy Regulations, and that the pay officer is authorized to pay commuted ration money of enlisted men to the commissary of such messes only and not to the commissary' of private messes.”

For the reasons above given the claimant’s petition is dismissed.