#### CLEVELAND McCAULEY v. THE UNITED STATES.

[No. 32547.

Decided February 1, 1915.]

*On the Proofs.*

This is a claim of an officer of the Navy for actual expenses while traveling abroad and mileage in the United States while proceeding to his home in obedience to orders issued to him in consequence of having incurred a disability temporarily unfitting him for duty while serving in tropical waters.

*106I. Tlie rule is well settled that the terms of an order given for any purpose can not determine the character of the travel or the service performed, but that question must be determined from the particular facts in each case.

II. When a sick officer, while convalescent, is sent home for the purpose of allowing him to regain his health, it is sending him on public business within the meaning of the law.

*The Reporter's*statement of the case:

*George A. King*for the plaintiff. *King <& King*were on the brief.

The claim in this case was disallowed by the Comptroller of the Treasury on the ground that the travel was for the purpose of taking leave of absence. The decision of this court in *Perrimond,*v. *United States,*19 C. Cls., 509, 511, is referred to in support of this ruling.

The statute regulating mileage in the Navy is the act of March 3,1901, *31 Sta. L.,*1029:

“That in lieu of traveling expenses and all allowances whatsoever connected therewith, including transportation of baggage, officers of the Navy traveling from point to point within the United States under orders shall hereafter receive mileage at the rate of eight cents per mile, distance to be computed by the shortest usually traveled route; but in cases where orders are given for travel to be performed repeatedly between two or more places in the same vicinity the Secretary of the Navy may, in his discretion, direct that actual and necessary expenses only be allowed. Actual expenses only shall be paid for travel under orders outside the limits of the United States in North America.”

The comptroller in applying the *Perrimond ease*to this one seems to have misapprehended the scope of that case. It there appears “that private delinquency and not public business was the cause of travel,” 19 C. Cls., 511. The commanding officer recognizing that that was the cause of travel, directed the officer to travel “ at his own expense.” The statute then in force allowed mileage to officers of the Navy “while engaged on public business.” Under these circumstances the officer was held not entitled to mileage.

In a case reported in immediate sequence, *ATlderdiee*v. *United*States, 19 C. Cls., 511, an ensign resigned and the Secretary of the Navy ordered him to his home, directing *107that his resignation take effect on arrival. The court said, page 513:

“Although the purpose of the claimant’s journey was to resign and leave the service, yet, nevertheless, it was the duty, as it was the intention, of the Secretary of the Navy to restore the officer to his residence before the resignation should take effect. Such has been the policy of the Government with regard to soldiers and sailors. The journey, therefore, was a matter of public obligation, and to that extent on public business, and for such journeys mileage was allowed to naval officers.”

In a case concluding a series of four reported together, the court in *Hannum*v. *United*States, laid down the following general conclusion applicable to all mileage cases, 19 C. CIs., 518, 519:

“ The right of an officer to mileage depends upon his having traveled upon public business, and it is ordinarily for his commanding officer to determine whether the public business requires that he should travel,” etc.

In the present case the claimant’s commanding officer regarding him as traveling on public business, and ordered him to his home for the benefit of the public service. He had incurred illness, in the line of duty. If he had been ordered to a hospital no question could have been raised as to the travel being on public business.

In *GoUins v. United*States, 37 C. CIs., 222, it was even held that an officer under treatment in a hospital, not detached from sea service, remained entitled to sea pay. This emphasizes the idea that an officer who has incurred illness in the line of duty is in a duty status. He is so treated by section 1265 of the Revised Statutes, an Army Statute applicable to the Navy, which allows full pay to officers “ when absent on account óf sickness.”

*Mr. B. W.*Andrews, with whom was *Mr. Assistant Attorney General Huston*Thompson, for the defendants.

Travel on public business is the foundation on which rests the right of an officer of the Navy to charge traveling expenses abroad and mileage within the United States. The law and the adjudicated cases sustain that proposition.

*108The statutory law applicable is found in the acts of ¿Tune 30, *1876,19 /Siat.,*65; June 7, 1900, *31 Stat.,*685; and March 3, 1901, *31 Stat.,*1029. The act of June 30, 1876, *supra,*contains the following provision:

“And so much of the act of June sixteenth, one thousand eight hundred and seventy-four, making appropriations for the support of the Army for the fiscal year ending June thirtieth, one thousand eight hundred and seventy-five, and for other purposes, as provides that only actual traveling expenses shall be allowed to any person holding employment or appointment under the United States while engaged on public business, as is applicable to officers of the Navy so engaged, is hereby repealed; and the sum of eight cents per mile shall be allowed such officers *while so engaged*in lieu of their actual expenses.”

The act of June 7,1900, supra, contains the following provision :

“ * * * That in lieu of traveling expenses and all allowances whatsoever connected therewith, including transportation of baggage, officers of the Navy traveling from point to point within the United States under orders shall hereafter receive mileage at the rate of eight cents per mile, distance to be computed by the shortest usually traveled route; * *

The act of March 3, 1901, *supra,*contains the following provision:

“That in lieu of traveling expenses and all allowances whatsoever connected therewith, including transportation of baggage, officers of the Navy traveling from point to point within the United States under orders shall hereafter receive mileage at the rate of eight cents per mile, distance to be computed by the shortest usually traveled route; but in cases where orders are given for travel to be performed repeatedly between two or more places in the same vicinity the Secretary of the Navy may, in his discretion, direct that actual and necessary expenses only be allowed. Actual expenses only shall be paid for travel under orders outside the limits of the United States in North America.”

It is readily seen that the express provision in the act of June 30, 1876, allowing mileage to officers of the Navy only “ while so engaged ” *on public business*has never been repealed or modified. The subsequent acts deal only with the rate of mileage, how calculated, limits mileage to travel *109within the United States, and provides for actual expenses instead of mileage for travel outside the United States. . Mileage is a commutation of traveling expenses, and the payment of either mileage or expenses rests upon the same foundation — viz, *public business.*

In the case of *Perrimond*v. *United*States, 19 C. Cls., 509, it was said:

“ Brit it is also equally plain that if the claimant was not traveling on public business the admiral could not make the Government liable for mileage by ordering him to rejoin his ship. Mileage is a form of reimbursement for money expended by an officer *in the Government's*service, *and public business is the foundation on which mileage rests."*

The rule is plainly stated in *Barker*v. *United*States, 19 C. Cls., 291, as follows:

“ If the cause of these warrant officers’ travel was ‘ public business’ they were entitled to reimbursement, and should recover their mileage, less whatever amount may have been paid them. Temple’s case, 14 C. Cls., 377; 105 U. S., 97. If the cause of their travel was private business they should have borne their own traveling expenses and should not have been paid anything, and may be liable to refund the money which has been paid to them.”

See also the case of *Eannum*v. *United*States, 19 C. Cls., 518, wherein the court held that the right of a naval officer “ to mileage depends upon his having traveled upon public business.”

The attorney for claimant in referring to the *Perrimond case*states that “the statute then in force allowed mileage to officers of the Navy ‘while engaged on public business,’” the inference being that said statute is no longer in force, or that mileage .is allowable even though the travel is not upon public business. Such a contention is manifestly unsound. The law in that particular has not been changed, as already shown hereinabove. Public business still remains the foundation upon which mileage rests.

The true relation of an officer to the public service and the public business is stated in the decision in *United States*v. *Williamson,*23 Wall., 415, where it is explained that—

“While absent from duty ‘with leave’ the officer is at liberty to go where he will during the permitted absence, .to *110employ his time as he pleases, and to surrender his leave if he chooses. If he reports himself at the expiration of his leave, it is all that can be asked of him.”

The *Williamson case*is cited with approval in *United States v.*Phisterer, 94 U.S., 221, and in the case of *United States*v. Liffitt, 100 U. S., 669.

Even if claimant had performed temporary duty at his home while on leave of absence, it would not have put him in a duty status so that he could recover mileage going from or back to his post. See the case of *Barr*v. *United States,*14 C. Cls., 272, where it was held that an officer under the circumstances just mentioned is not entitled to mileage under orders “to rejoin his proper station.”

The rule that an officer traveling to and from his post in connection with a leave of absence must travel from and to his post at his own expense, the travel not being on public business, is recognized and adhered to in the case of *Fits-patric7e*v. *United*States, 37 C. Cls., 332, wherein the court said:

“ Nevertheless, there is a principle which has long been recognized both by the accounting officers, the departments, and the courts, which is that the expiration of a leave of absence finds the officer, in legal contemplation, at his post. It necessitates a hard rule, viz, that where an officer’s prescribed leave of absence is shortened, perhaps practically destroyed, he likewise loses his traveling expenses if the public exigency requires his return to duty. The court understands the principle to be too well established to be disregarded or changed. An officer takes his leave of absence at his own risk; it is not granted for the benefit of the Government; if the Government wants his services before his leave expires it must have them, and the officer who takes the risk of that must bear the loss of his personal traveling expenses. It is not the intention of the court to question the general principle or impair its operation.”

This court also followed the *Barr ease*and the *Fitzpat-rich case*in dismissing the petition in the *Johnson*case, No. 25016, Court of Claims.

In *Gourfs*case, 16 Comp. Dec., 611, which is similar to the case at bar, and to which the court’s attention is respectfully invited, as the decision therein is a clear exposition of *111the law involved in the present case, the comptroller decided, quoting from the syllabus:

“An officer of the Navy ordered to proceed to his home and granted a leave of absence, and at the expiration of such leave to return to his station, is traveling for his own pleasure and benefit and not on public business, and he is not entitled to mileage.”

The comptroller also held that:

“It was no possible concern of the Government whether the claimant spent his leave at his home or elsewhere in the United States, or how he employed his time during his leave * *

In the case of *Foster*v. *United States,*43 C. Cls., 170, it was said by Mr. Justice Booth in delivering the opinion of the court:

“ The elementary and well-settled principles applicable to this case lead inevitably to the conclusion that travel pay can not be allowed. An officer on leave of absence is enjoying a respite from military duty, and it' is granted for his sole accommodation. If, during the continuance of his leave, he is called upon to perform military duty inconsistent with the real purpose of the leave, and is thereby deprived from its enjoyment, the emoluments of such duty, including travel pay, are clearly his. If, however, the leave granted is but temporarily suspended or interrupted, and its real purposes not diverted by curtailment of time, it is unjust to entail upon the Government the expense of the officer’s return to his regiment, which in the first instance is imposed upon the officer himself.”

In the case of *Williams*v. *United*States, 47 C. Cls., 56, the court in denying full duty pay to a naval officer while on sick leave shows by its reasoning that an officer’s status in regard to the public business while on sick leave is no different from what it is while on ordinary leave. The court in that case, through Mr. Justice Booth, said:

“He was away from his station, disconnected entirely therefrom, with no duties to attend in connection therewith; his leave was in a measure for his benefit to enable him to fully recover his health. While not formally detached from the service by express order, it can be seen at a glance that he was in fact detached, doing no duty of a military character whatever.”

*112In *Henderson’s case,*decided by the Comptroller of the Treasury October 18, 1910, it was said:

“Whether a leave of absence is granted on account of sickness or for other causes, the officer’s status is the same so far as the matter under consideration is concerned (mileage to his home). While on “ sick leave ” or “ ordinary leave ” he is not on duty, nor is he subject to the orders of superior authority. His time is placed at his owm disposal, as he may see fit, and he can go and come as he chooses.”

It is well settled that gratuitous and unnecessary orders, framed apparently in an attempt to give officers pay that they have no legal right to receive, are ineffective to accomplish that purpose.. See *Humphreys*v. *United*States, 38 C. Cls., 618, 693, cited with approval in *United States*v. Mitchell, 205 IT. S., 169.

In the case- at bar the order directing the claimant to proceed to his home and granting him leave of absence does not, it is noticed, state anywhere expressly that the travel is on public business. The attention of the court is also invited to the fact that “ it matters not if the travel was made before the leave began, it was in no sense upon public business,” as held by the comptroller in *Greetham’s case, 17*Comp. Dec., 254.

Barney, Judge,

reviewing the facts found to be established, delivered the opinion of the court:

This is a claim of an officer of the Navy for actual expenses while traveling abroad and mileage in the United States while proceeding to his home in obedience to orders issued to him in consequence of having incurred a disability temporarily unfitting him for duty while serving in tropical waters.

The facts in the case are substantially as follows: This officer was taken seriously ill about February, 1911, from exposure while on duty while serving on the U. S. S. *Princeton*in the Pacific waters on the coast of Nicaragua. In consequence, on February 16, he was ordered to proceed to a Government hospital at Panama City, Panama, for treatment, which he did, and remained there under medical treatment until March 7,1911, when he had so far become convalescent that a board of medical survey, convened for that purpose, recommended that he be granted a sick leave for *113three months. On March 16, 1911, the Chief of the Bureau of Medicine and Surgery disapproved said recommendation and further recommended that claimant be “ transferred to the naval hospital, Mare Island, Cal., for treatment, observation, and disposition.”

On March 11, 1911, claimant was ordered by the proper authorities to proceed to his home, and upon his arrival there was granted three months’ leave. He was discharged from the hospital on March 15, 1911, and in obedience to said order proceeded to his home, which was at Quanah, Tex. The mileage and traveling expenses sued for in this case were incident to said journey.

The statute regulating mileage in the Navy is the act of March 3, 1901, 31 *Stat. L.,*1029:

“That in lieu of traveling expenses and all allowances whatsoever connected therewith, including transportation of baggage, officers of the Navy traveling from point to point within the United States under orders shall hereafter receive mileage at the rate of eight cents per mile, distance to be computed by the shortest usually traveled route; but in cases where orders are given for travel to be performed repeatedly between two or more places in the same vicinity the Secretary of the Navy may, in his discretion, direct that actual and necessary expenses only be allowed. Actual expenses only shall be paid for travel under orders outside the limits of the United States in North America.”

It is the contention of the Government that the claimant is not entitled to recover expenses and mileage under this statute for the reason that he was not traveling on “ public business” within the act of June 30, 1876, *19 Stat. L.,*65. Without quoting the latter act in full, it is sufficient for the purposes of this case to say that it provides for payment for mileage and expenses in the Navy only in case of travel on “ public business.” Hence the question for decision in this case is whether the travel of the claimant above described was travel on *“*public business.”

The rule is well settled that the terms of an order given for travel, or for that matter for any other purpose, can not determine the character of the travel or the service performed, but that question must be determined by the court from the particular facts in each case. *Curry*v. *United*
      *114
      *States,*47 C. Cls., 893, 398; *McGovern*v. *United*States, 36 *C. Cls.,*63; *Leach*v. *United States,*44 C. Cls., 132; *Doyle*v. *United*States, 46 C. Cls., 181.

It can not be denied in this case that if the claimant, when he took this journey home, did it for his own pleasure or on private business he is not entitled to mileage. *Perrimond*v. *United States,*19 C. Cls., 509; *Barker*v. *United States,*Id., 291. But that is not this case. The claimant did not ask for and receive the ordinary leave of absence. He was in a hospital under treatment for serious illness and had so far recovered that it was recommended that a sick leave for three months was advisable. It should be here noted that the Chief of the Bureau of Medicine and Surgery, after the departure of claimant for home (doubtless being unadvised of that fact) disapproved of this recommendation and further recommended that the claimant be sent to the naval hospital at Mare Island for treatment. This fact is very significant as to the character of the journey which the claimant made to his home under the order of his superior officer, showing that it was ordered to be done and was done for the purpose of regaining his health. Certainly if he had not gone, and the recommendation of the superior medical officer had been followed, as it doubtless would have been, and he had been sent to the hospital at Mare Island for treatment, the expense to the Government would have been far more than the payment of his mileage home. The trip home was for the same purpose, doubtless more beneficial and less expensive to the Government. It appears from the record in this case that the disease with which the claimant was afflicted was contracted while he was on duty, and it would be cruel as well as contrary to law to order him home to recuperate at his own expense.

In conclusion we believe the sending to his home of a sick officer while convalescent for the purpose of allowing bim to regain his health is sending him on public business within the meaning of the law, from which it follows that the claimant is entitled to a judgment in the sum of $127.37, and it is so ordered.

All concur.