#### CHARLES J. FERRIS v. THE UNITED STATES.1

[No. 315-A.

Decided November 6, 1922.]

*On the Proofs.*

*Army pay; exercise of higher command.*— Where an officer is serving in one regiment and is assigned to a higher command in another regiment at a camp of instruction in the United States, *567during the war with Germany, by order issued by competent', authority, and he exercises such command, he is “ serving with. troops operating against an enemy,” and is entitled under the-act of April 26, 1898, 30 Stat. 365, to the pay and allowances' of the grade appropriate to the command so exercised.

*The Reporter’s*statement of the case:

*Mr. George A. King*for the plaintiffs. *King ds King*were on the briefs.

*Mr. J ohn G.*Ewing, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

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

I. The plaintiff, Charles J. Ferris, was appointed lieutenant colonel, Field Artillery, National Army, in the service of the United States, August 5, 1917; accepted this appointment August 21, 1917, and was attached to and joined the 315th Regiment, Field Artillery, August 23,1917.

While attached to that regiment he was, August 27, 1917,. by special orders issued by the commanding general of the 80th Division, American Expeditionary Forces, placed in command of the 315th Field Artillery, there being no colonel or lieutenant colonel with that regiment at the time. He immediately assumed command of said 315th Regiment of Field Artillery on the date of said order, August 27, 1917, and remained in command thereof by orders of the commanding general until the return of the lieutenant colonel of said 315th Regiment to duty with his regiment January 5, 1918.

During that period he requested to be transferred to said 315th Field Artillery as lieutenant colonel thereof and his request was refused on the ground that there was no vacancy, there being already a lieutenant colonel of said 315th Field Artillery, who was absent on detached duty and who protested against being detached from said 315th Regiment.

The order placing him in command of the 315th F. A. was necessary to enable him to assume such command. The 80th Division was one of the several National Army divisions organized for the purpose of carry on and bringing to a *568close the World War and was composed of the different organizations and branches of the service going to make up a combat division, the 314th and 315th Regiments F. A. being component parts thereof. This division was organized and trained at Camp Lee, Virginia, and later on became a part of the American Expeditionary Forces and engaged in action with the enemy.

During the period from August 22, 1917, to January 5, 1918, the 315th Field Artillery was stationed at Camp Lee, Petersburg, Va., and this camp was used as a camp of instruction.

II. During all the time that said Lieutenant Colonel Ferris exercised the command of the 315th Regiment of Field Artillery he was a lieutenant colonel of more than fifteen years, service in the Army and was paid as such.

If paid as a colonel for that period he would be entitled to receive over and above the pay he has already received the sum of $179.17.

1

 Appealed.

MEMORANDUM BX THE COURT.

This is a suit brought by the plaintiff to recover increased pay and allowances for exercising a command above that pertaining to his grade from August 27, 1917, to January 5,1918.

Fie relies upon the act of Congress approved April 26, 1898, 30 Stat. 365, which reads as follows:

“That in time of war every officer serving with troops operating against an enemy, who shall exercise, under an assignment in orders issued by competent authority, a command above that pertaining to his grade shall be entitled to receive the pay and allowances of the grade appropriate to the command so exercised.”

The plaintiff was a lieutenant colonel of the 314th Field Artillery, and was by orders issued by competent authority under assignment to command the 315th Field Artillery, and exercised said command from August 27, 1917, to January 5, 1918. These two regiments of Field Artillery were in the 80th Division of the National Army organized for the purpose of carrying on the war, which was then being waged *569between the United States and Germany. These regiments were organized and trained at Camp Lee, Virginia, and it was while they were being so organized and trained that the plaintiff rendered the service and exercised the command for which he is now claiming increased pay and allowances.

The troops which were being organized and trained at Camp Lee were assembled there for war purposes, and were necessarily operating against the enemy. They were there for no other purpose. Therefore the service rendered by the plaintiff was with troops operating against the enemy within the meaning of the statute. As was said in 22 Ops. Atty. Gen. 95—

“ Any troops assembled at camps in the United States for * * * war purposes can properly be considered as operating against an enemy although their * * * service is confined to the ordinary routine of camp life.”

The plaintiff is entitled to recover, and judgment will be rendered in his favor for $179.17.