#### FRANK de L. CARRINGTON v. THE UNITED STATES.

[No. 30401.

Decided March 27, 1911.]

*On the Proofs.*

An officer of the Army, for some months, is in the custody of the civil authorities in Manila awaiting trial, on bail and not actually restrained of his liberty. Subsequently he is under military arrest and confined to the limits of the city of Manila. During all this period he is under orders assigning him to temporary duty in Manila and resides in a private house, not having been furnished with quarters. Until his arrest he receives pay and commutation of quarters.

I. The court reiterates its decision in *Walsh's case*(43 C. Cls. R., 225) that it requires the decision of a court-martial to deprive an Army officer of his pay and emoluments.

*280II. Where an officer is awaiting trial before either a civil or military tribunal under waiting-orders issued by authority of the War Department, he is entitled to the emoluments of his office, including commutation for quarters.

*The Refortevs1*statement of the case:

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

I. The claimant, Frank de L. Carrington, a major in the United States Army, was tried and convicted by civil court in the Philippine Islands in 1905, but on writ of error his conviction .was reversed by the Supreme Court of the United States (208 U. S., 1). He was also tried by a general court-martial and sentenced to be dismissed from the military service, and was dismissed July 15, 1905. Later, under authority of the act of June 23, 1910 (36 Stat. L., 600), the President nominated and appointed claimant a major on the retired list, and the claimant is now a major on the retired list of the Army.

II. From .the 1st of March to the 15th of July, 1905, claimant was in the hands of the civil authorities at Manila, awaiting trial. He was during this period on bail, and was not actually restrained of his liberty.

On June 30, 1905, The Adjutant General of the Army sent the following telegram to the general commanding the Philippines Division:

“Washington, *June*SO, *1905.*

“Corbin, *Manila:*

“Beferring to telegram from this office of 20th instant, Secretary of War, under authority section 1265, Bevised Statutes, excuses absence of Frank de L. Carrington while-in the hands of civil authorities as unavoidable.

“Ainsworth.”

During all this period claimant was on temporary duty at Manila without troops. On April 10-, 1905, claimant received and obeyed an order from headquarters of the Philippines Division, United States Army, directing him to report at once to said headquarters in arrest, and to confine himself to the limits of the city of Manila. He obeyed said- order, and remained in arrest till July 15, 1905.

*281III. For some time prior to and during the whole of the period from March 1 to July 15, 1905, claimant resided in a private -house in Manila, and was not furnished with public quarters. For the period immediately prior to March 1, 1905, he had received pay and commutation of quarters; but during the period from March 1 to July 15,1905, he .did not at the time receive any pay or allowances whatever.

Subsequently he received pay for that period, but he has. never received commutation of quarters therefor.

IV. If entitled to commutation of quarters from March 1 to July 15, 1905, there is due claimant $216.

*Messrs. King c& King*for the claimant. *Mr. Archibald' King*was on the brief.

*Mr. Franhlin W. Gollms*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

Atkinson, J.,

delivered the opinion of the court:

The findings show that claimant was a major in the-United States Army who was convicted by a civil court in the Philippine Islands, and on a writ of error the decision of the trial court was reversed by the Supreme Court of the United States (208 U. S., 1). He was also tried by a general court-martial and was dismissed from the Army. Subsequently he was reinstated in the military service under the-act of June 10, 1910 (36 Stats., 600), and was placed on the retired list with the rank of major. Claimant was under waiting orders of the War Department during the pendency of his trial, and as no military quarters were available he furnished his own quarters and filed a claim for commutation amounting to $216, in accordance with the ratés established by War Department regulations, which claim was disallowed by the auditor for said department on the ground that as claimant “was not on duty at a station -without troops, he is not entitled to commutation for quarters for the period claimed.” The case was appealed to the Comptroller of the Treasury, who sustained the action of the auditor.. Hence this suit.

The same principle that was in .part involved, in *Walsh*v. *United, States*(43 C. Cls., 225) is controlling in this case,.' *282although the facts are not entirely the same. Walsh was tried by an illegally constituted court-martial, but was on waiting orders, without troops, during the pendency of his trial. His claim was rejected for commutation for quarters by the accounting officers of the Treasury Department. In the case at bar claimant was tried and convicted in a civil court at Manila, and the judgment of the court below was reversed by the Supreme Court of the United States. He was, as we have already stated, subsequently tried, convicted, and dismissed from the Army by a military court-martial, and was thereafter reinstated and retired. In Walsh’s case it was decided that it required the decision of a court-martial to deprive an- Army officer of his pay and emoluments. Therefore, we must hold in this case that although claimant was first tried by a civil tribunal, he was afterwards tried by a general military court-martial, and being under waiting orders issued by authority of the War Department, which covered the time involved in both trials, he is entitled to all of the emoluments allowed by Army Regulations, which include commutation for quarters.

Judgment against the United States in the sum of $216 is accordingly rendered.