#### RUDOLPH A. ASHTON v. THE UNITED STATES.

[No. 30773.

Decided Feb. 7, 1916.]

*On the plaintiff's motion.*

*Navy*pay.—A paymaster’s clerk is not an “ officer of the Navy ” entitled to mileage pay, within the meaning of the statute, March 3, 1901, 31 Stats., 1029.

*Navy*regulation.—A regulation of a department is not sufficient to change the plaintiff’s status, so as to bring him within the terms of the act of March 3, 1901, *supra.*

*Katser*v. *United States,*49 O. Ols., 294, reviewed and distinguished.

*66
      *The Reporter’s*statement of the case:

The grounds for plaintiff’s motion are sufficiently stated in the opinion of the court.

*Messers. Chapman W. Maupin*and *George A. King*for the motion. *Mr. Fred B. Rhodes*was on the brief.

The whole question is fully covered by a recent decision of this court, *Katzer*v. *United States,*49 C. Cls., 294, which decision at the time of the previous arguments and decisions of the present case had not then been reported in the regular series of reports, and was not therefore before either counsel or the court on the previous hearings.

In that case the question was the same as it is in this, whether paymasters’ clerks in the Navy were to be reimbursed for their expenses of travel by the allowance of their actual expense bills or paid mileage allowance as in the case of commissioned officers of the Navy. The court in the opinion in the case referred to decided that paymasters’ clerks were entitled to mileage the same as any other officers in the Navy.

The decision was based upon the ground that paymasters’ clerks in the Navy are now appointed by the Secretary of the Navy and are thus officers of the Navy in the strictest sense of the term.

It was stated that since the decision of the Supreme Court of the United States in *United States*v. *Mount,*124 U. S., 303, the mode of their appointment has been changed, so that the decision in that case denying them mileage no longer applies.

The court referred to the mode of appointment of paymasters’ clerks as defined by article 1619 of the Navy Regulations for 1909, or article 1751, Par. I, of the edition of 1905. The same provision with the same number of paragraph and article, to wit, article 1751, par. 1, appears in the edition of 1900.

This claim contains no item of any earlier date. It is therefore precisely within the decision of the court in the *Katzer*case. That decision was rendered after elaborate argument on both sides and is decided in an elaborate and *67cerefully considered opinion. This case necessarily follows the decision in that.

It will be seen that the case was decided not on the act of 1908 changing the pay of paymasters’ clerks, but on the Navy Regulation which changed the manner of their appointment.

Not the slightest distinction can therefore be drawn between the two cases. Upon the authority of that case the judgment dismissing the present claim must necessarily be set aside and the case adjudged in favor of the claimant.

In addition to the *Katzer*case see also as having some bearing on the question involved the cases of *Davis*v. *United*States, 47 C. Cls., 195; *Poore*v. *United*States, 49 C. Cls., 192; *Calongne*v. *United*States, 49 C. Cls., 240.

See also *McDonald*v. *United*States, 23 C. Cls., 104, affirmed 128 U. S., 471, holding that where actual expenses are allowed for an entire journey for part of which the officer is entitled to mileage, such expenses will be apportioned in accordance with the distance traveled, and mileage allowed accordingly.

*Mr. Richard P.*Whiteley, with whom was *Mr. Assistant Attorney General Huston*Thompson, opposed.

Basnet, Judge,

delivered the opinion of the court:

This case now comes before this court upon a motion for a new trial by the claimant, the petition having been originally dismissed without an opinion. The claimant is a paymaster’s clerk in the Navy, and this claim is for mileage in lieu of actual expenses for travel performed under proper orders.

The act of March 3, 1901, 31 Stat., 1029, provides that “ officers of the Navy traveling from point to point within the United States under orders shall receive mileage at the rate of 8 cents per mile.” Hence the only question in this case is whether a paymaster’s clerk at the time of the travel in question was an officer of the Navy within the meaning of the statute above quoted. If he was, he is entitled to judgment ; if he was not, the petition was properly dismissed.

The claimant relies upon the decision of this court in the case of *Katzer*v. *United*States, 49 C. Cls., 294, for a judg*68ment in this suit, for this court in that case held a paymaster’s clerk was such officer of the Navy and entitled to mileage instead of expenses of travel. An examination of the facts in that case will show that the claimant was entitled to mileage under another statute.

In the *Katzer case*the court’s attention was directed to the two cases of *United States*v. *Mount,*124 U. S., 303, and *United States*v. *Hendee,*124 U. S., 309, both opinions being handed down on the same day, and the effect of the holdings in those cases was that one may be an officer of the Navy for the purpose of receiving one rate of pay but not for another. Without giving due consideration to section 2, article 2 of the Constitution, as construed by the Supreme Court in *United States*v. *Germaine,*99 U. S., 508, the opinion in the *Katzer case*laid emphasis upon the statement which was made in the opinion in the *Mouat case*as follows: “From all this it is clear that neither by the regulations, nor by the statutes, nor by any constitutional provision is the present claimant an officer of the Navy” (italics ours), and we treated this statement as equivalent to the assertion that if Mouat’s appointment had been authorized by the regulations the result in his case would have been different. In other words, the language quoted from the Supreme Court’s opinion was given a construction which probably was not intended when considered in connection with the plain language of said article of the Constitution. Whatever may be the force of a regulation of a department it is certainly not a law of Congress, and taking the language of the Constitution into consideration it seems hardly necessary to say that until Congress sees fit to grant authority to the heads of departments they can not confer it upon themselves by mere regulations. It appears that Congress has since assumed that legislative action in the premises was necessary, because by the act of March 3, 1915, 38 Stats, 928, 942, they have changed the title of these officers to that of “ pay clerks ” and vested their appointment in the Secretary of the Navy.

As above suggested, the result reached in the *Katzer case*would have been the same under another statute, which does not apply to the case of the claimant here; and as we are now *69unwilling to follow the reasoning in the *Katzer case*further it results that the claimants’ motion for a new trial must be and the same is hereby overruled.

All concur.