#### FRED S. BYERLY v. THE UNITED STATES.

[No. B-59.

Decided April 16, 1923.]

*On the Proofs.*

*Commutation of quarters, etc.; officers’ cluh.*— Where the Secretary of War determines there are no available quarters at an Army camp for an officer, who thereupon occupies and pays for rooms at an officers’ club maintained as a private concern by the officers of the camp, he is entitled to commutation of quarters, heat, and light.

*The Reporter’s*statement of the case:

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

*Mr. John 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, Fred S. Byerly, captain of Infantry, United States Army, arrived at Camp Knox, Ky., January 24, 1922, under proper orders assigning him to duty there, and immediately made application for assignment of quarters for himself and family, consisting of his wife and two children. He was officially informed that no public quarters were available. At the same time he was required in common with other officers on duty at said Camp Knox to live on the reservation on the ground that the duties of *270an officer, and particularly of a captain commanding a company, could not be properly performed when living off the reservation.

He thereupon rented quarters in the building hereinafter described, consisting of two rooms, for which he paid rent to the Officers’ Club at the rate of $45 a month, including heat and light. He continued to occupy said quarters until April 7, 1922, when quarters in kind were assigned to him on the military reservation, consisting of an old schoolhouse, which has since been occupied by himself and another officer after alterations at their own expense.

II. The building occupied by him from January 24 to April 7 was erected during the World War from private funds raised by the War Camp Community Service and was paid for from private funds raised by that organization. Upon the withdrawal of that service from the camp the building was neither abandoned nor turned over to the Government, but was taken over by a mutual association of the officers of Camp Knox, called the Officers’ Club, and has ever since been operated by said club in the interest of the officers stationed at. the camp. Said building has never been controlled or operated by the Government, but has remained under the control of said Officers’ Club. The repairs, maintenance, and upkeep of the building have been paid entirely by said Officers’ Club out of the rents paid by officers for the occupancy of rooms by themselves and their families, as well as from the proceeds of a restaurant serving meals to the officers and from the proceeds of a soda foimtain run in connection therewith. The club keeps a manager (a man) as well as a woman bookkeeper and stenographer, both devoting their entire time to the service of said Officers’ Club and paid entirely by them, as are also the maids and other employees working in the building. All such persons are civilians and not in either the military or civil service of the Government.

III. It is provided by General Orders, No. 57, War Department, Washington, November *30, 1921,*as follows:

*“*2. Under the provisions of the act of Congress approved April 16, 1918 (Bub No. 22, W. D. 1918), as amended by the *271act of Congress approved May 18, 1920 (Bul. No. 21, W. D. 1920), authorizing payment of commutation of quarters, heat and light to certain officers and enlisted men on account of the maintenance of an abode for wife, child, or dependent parent, the expression ‘ on duty in the field ’ shall have application to all duty in the United States or in its insular possessions at camps and cantonments (except at permanent posts or forts), where public quarters are not available for the occupancy of the families or dependents of officers at such stations.

“ ‘ Permanent posts and forts,’ as used in the foregoing sentence, will be considered to mean all those military stations of permanent construction which existed prior to the World War and all additional military stations which have been announced as permanent posts in War Department orders issued since the World War, or which may hereafter be so announced.”

Camp Knox was established during the World War. It had not been completed when hostilities were suspended by the armistice, and is still incomplete. It has never been announced as a permanent post in any War Department orders.

Appropriations have been made in the years 1920 and 1921, as follows: The act of February 28, 1920, 41 Stat. 453, provides for the purchase of real estate to complete said camp, and the act of June 30,1921, 42 Stat. 70, and the act of June 30,1922, 42 Stat. 477, provide for the purchase of necessary material, employment of services, and other expenses of instruction at the Field Artillery School at Camp Knox, Ky.

IY. November 4, 1919, the commanding general Camp Knox, Ky., addressed a communication to The Adjutant General of the Army, Washington, D. C., which, together with the indorsements thereon, is as follows:

November 4, 1919.

Comanding General Camp Knox, Ky.

The Adjutant General of the Army, Washington, D. C. Commutation of quarters.

1. Bequest decision as to the status of commutation of light, heat, and quarters for officers under the following conditions :

The War Camp Community Service is building a hotel and hostess house on the reservation which will be completed about November 15th. The building contains sixty rooms and has modern conveniences, including a cafeteria *272and a stage for theatrical productions. A building of this size will require competent help and management and will be operated under the direction of the recreation officer. It is thought that the cafeteria, barber shop, soda fountain, etc., will be self-supporting, but to support the hotel proper it will be necessary to charge $60 a month for three-room suites, $50 for two rooms, $30 for a single room, and $1.50 per night for transients to cover maid service, labor, laundry, and other operating expenses. The building also is to be used as a hostess house for the entertainment of friends of both officers and enlisted men, and for the theatrical productions, as the Liberty Theater has not been completed at this camp.

There are no other available houses for officers’ families nearer than Louisville, which is 38 miles away.

2. Can officers living with their families in this hotel draw commutation of light, heat, and quarters ?

George G. Gatley,

*Brigadier General, U. S. A., Commanding.*

*[1st*indorsement.]

War DepartmeNT, A. G. O., *November SO, 1919.*

To: The Commanding General, Camp Knox, Ky.

Returned for information as to whether material belonging to the Government is being used in the construction of the building referred to.

By order of the Secretary of War.

C. S. McNeill, *Adjutant General.*

[2d indorsement.]

Headquarters, Camp Knox, Ky., *Nov. S8, 1919.*

To: The Adjutant General of the Army, Washington, D. C.

Returned.

1. All material being used in the construction of this building was purchased from the funds of the War Camp Community Service.

George G. Gatley,

*Brigadier General, U. S. A., Commanding.*

[3d indorsement.]

War Department, A. G. O., *Dec. 3,1919.*

(Through the Director of Finance.)

To the Commanding General, Camp Knox, Kentucky.

1. With the information that officers living with their families in the War Camp Community Service Hotel at Camp Knox may draw commutation of quarters, fuel, and *273light under the act of April 16,1918, as they are not occupying Government quarters.

By order of the Secretary of War.

' C. S. McNeill, *Adjutant General.*

In accordance with the above ruling commutation of quarters, heat, and light was regularly paid to officers having quarters for themselves and families in said Officer’s Club building.

At a later date the finance officer at Camp Knox inquired whether he was authorized to continue such payments to officers residing with their families at the Officers’ Club. The commanding general at said Camp Knox thereupon submitted the question, December 8,1921, expressing his opinion that officers occupying rooms at said Officers’ Club and paying rent for the same were legally entitled to receive commutation of quarters. The major general commanding the Fifth Corps Area approved the view of the brigadier general commanding said Camp Knox and forwarded the papers to The Adjutant General of the Army. The Secretary of War thereupon, December 21, 1921, referred the question to the Judge Advocate General of the Army for an opinion.

The Judge Advocate General, January 6, 1922, rendered an opinion concluding as follows:

“ 4. It is the opinion of this office that the hotel feature of the Officers’ Club is not in any manner under the operation of the Government, but that it is a private concern, a mutual association run for the benefit of the officers of the camp, and the profits obtained from the rental of rooms are sums expended entirely for the officers of the camp and not used for any Government activity. That, therefore, this case is distinguished from the Comptroller General’s decision of September 26, 1921, and commutation of quarters, heat, and light can be legally paid.”

This opinion was approved by the Secretary of War and that approval officially communicated to the commanding general at Camp Knox.

■ The Comptroller General, however, decided that payment of commutation of quarters, heat, and light to officers, either in their own right or in that of dependents, was not authorized.

*274Y. If the plaintiff, Capt. Fred S. Byerly, is entitled to commutation of quarters, heat, and light under the circumstances heretofore mentioned, he would be entitled during the period January 24, 1922, to April 7, 1922, to the following amounts:

Quarters_$118.40

Heat_ 32. 52

Light_ 4. 07

154. 99

MEMORANDUM

BY THE COURT.

Under the act of March 4, 1915, 38 Stat. 1069, it is provided “ That hereafter the Secretary of War may determine where and when there are no public quarters available within the meaning of this or any other act.”

The Secretary of War determined that there were no public quarters available for the use of the plaintiff at Camp Knox, and that being so, he was entitled to commutation of quarters, heat, and light while occupying and paying for rooms in the Officers’ Club at Camp Knox.

The decision of the Secretary of War is conclusive. *United States*v. Jones, 18 How. 92; *Dyer*v. *United*States, 37 C. Cls. 337; *Acker*v. *United*States, 46 C. Cls. 63.

The plaintiff in this case had to pay out his own money for quarters, heat, and light. The Government failed to furnish him with quarters, and having hired them at his own expense, the Government must reimburse him.

Judgment for plaintiff in the sum of $154.99.