#### GEORGE A. MOORE v. THE UNITED STATES.

[No. B-149.

Decided July 2,1923.]

*On the Proofs.*

*Mileage; sea travel; home waters.*— Where an Army officer is ordered to proceed from a station on the Pacific coast to a station on the Atlantic coast, via the Panama Canal, it is travel in “ home waters ” and not “ sea travel,” and he is entitled to his mileage by the shortest traveled route between the two stations.

*The Reporter’s*statement of the case:

*Mr. George A. King*for the plaintiff. *King ds 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, George A. Moore, a captain of Cavalry, United States Army, received the following order:

Special Orders, War Department, No. 260-O. { Washington, *November 8, 1921.*

7. Captain George A. Moore, 17th Cavalry, is relieved from assignment to that regiment and will proceed from the Presidio of Monterey, California, to Mare Island Navy Yard, California, at such time as will enable him to proceed on the United States naval transport Henderson, scheduled to leave that station on December 2, 1921, for Hampton Roads, Virginia. Upon arrival at Hampton Roads he will proceed *476to Washington, D. C., and report to the Chief of Cavalry for duty in his office. The travel directed is necessary in the military service and is chargeable to procurement authority FD 41 P 2451 A 2. (A. G. 210.313, Cav. 10-7-21.)

JortN J. PershiNG,

*General of the Annies, Chief of Staff.*

Official:

P. C. Harris,

*The Adjutant General.*

II. Plaintiff was paid by the proper disbursing officer of the Government in December, 1921, the sum of $122.32 mileage, being at the rate of 4 cents per mile from San Francisco, Calif., to Washington, D. C., a distance of 3,058 miles. On January 18,1922, plaintiff filed a claim with the General Accounting Office, War Department Division, for mileage from San Francisco to Washington by the route actually traveled, 5,832 miles, at 4 cents per mile, amounting to $232.92, less $122.32 theretofore paid. The claim was disallowed by the accounting officers on April 12, 1922, upon the ground that “travel on a naval transport, as ordered, from San Francisco to Hampton Hoads, Virginia, via the Panama Canal is sea travel, for which actual expenses only shall be paid to commissioned officers when traveling on duty under competent orders (act of June 12, 1906).” The accounting officers allowed $40.10 for subsistence on the transport and mileage from Hampton Roads, Va., to Washington, 207 miles at 4 cents per mile, $8.28, a total of $48.38, theretofore paid by plaintiff, and disallowed the balance of the payment of $122.32, amounting to $73.94.

On April 13, 1922, a review of this settlement was requested, and in compliance therewith the Comptroller General on June 2, 1922, rendered an opinion sustaining the above settlement, and requested the plaintiff “ to forward to this office at once the amount of $73.94 overpaid him by the disbursing officer,” and that amount was accordingly refunded to the Comptroller General and deposited in the Treasury.

III. (1) If plaintiff is entitled to mileage from San Francisco to Hampton Roads via the Panama Canal, 5,823 miles, at the rate of 4 cents per mile, the amount would be $232.92, *477less $40.10 paid him for subsistence, leaving a balance of $192.82.

(2) If plaintiff is entitled to mileage from San Francisco to Washington by the shortest usually traveled route, 3,058 miles, at the rate of 7 cents per mile, less land-grant deduction for 367 miles at 3 cents per mile, it would amount to $203.05. Deducting from this amount $48.38 theretofore paid to him for subsistence and mileage would leave a balance of $154.67.

(3) If plaintiff is entitled to mileage from San Francisco to Washington at the rate of 4 cents per mile by the shortest usually traveled route, it would amount to $122.32. Deducting therefrom the amount heretofore paid to him for mileage and subsistence, $48.38, leaves a balance of $73.94.

MEMORANBUM by the court.

The claim is for travel pay by an Army officer who was ■ordered to proceed from the Presidio of Monterey, Calif., to Mare Island Navy Yard, thence to proceed on a naval transport to Hampton Eoads, Va., and thence to Washington, D. C., where he was to report for duty. He traveled under this order on the transport *Henderson*via Panama Canal to Hampton Eoads.

1. The act of June 24,1906, 34 Stat. 246, authorizes certain mileage, distances to be computed over the shortest usually traveled routes. It provides that for “ sea travel ” actual expenses only shall be paid, and further, among other places that travel in the home waters of the United States or between the United States and Alaska “ shall not be regarded us sea travel.”

2. Before the act of 1906 was passed it had been held by the Supreme Court, affirming this court in *Hutchins*ease, 151 U. S. 542, that under a statute regulating the pay of naval officers and providing for mileage while traveling under orders, *in the United*States, and for actual expenses while traveling abroad, the question of whether the travel was abroad or within the United States “ should be determined by the termini of the journey rather than by the route actually taken.” In that case the travel was under *478orders from San Francisco to New York via the Isthmus of Panama. The Supreme Court say:

“ While the voyage in question was not literally ‘in the United States,’ it was such within the intent and spirit of the enactment. An officer is to be understood as traveling abroad when he goes to a foreign port or place under orders to proceed to that place or from one foreign port to another, or from a foreign, port to a home port. But where he is ordered to proceed from one place in the United States to another, and the Government for its own purpose requires him to proceed by sea rather than by land, he ought not thereby to be disentitled to his mileage by the nearest traveled route.”

The Congress knew of this construction when they passed the act of 1906, and it may be reasonably held that they intended “sea travel” in the act to mean substantially what travel abroad was held to mean in the case cited. Declaring that a voyage between the United States and Alaska should not be accounted “ sea travel,” it is hardly to be assumed that they meant that a voyage between points in the United States would be sea travel, though it passed over only a part of the same general route.

3. It is not necessary to the officer’s right of recovery to hold that the particular voyage was entirely “in home waters,” though it actually began and ended in home waters. The act provides that the Secretary of War may determine what shall constitute travel and duty without troops within the meaning of the laws governing the payment of mileage and commutation of quarters to officers of the Army. The Army Regulations provide: “Travel in the Philippine Archipelago * * * and the home waters of the United States is confined to travel in which both termini of the journey are in one of the above places.” A. R. 1913, sec. 1279. Thus treating travel between two termini in the United States as being “ in home waters ” for the purposes of mileage is not an unreasonable exercise of the authority conferred on the Secretary by the act in question. In accordance with this regulation, “ sea travel ” is not involved where a voyage is between two termini in the United States.

The officer is entitled to mileage computed by the shortest usually traveled route with the deductions required by the *479statute. See *Hutchins*case, 27 C. Cls. 137; 151 TI. S. 542; and 20 Comp. Dec. 741.

Judgment for plaintiff in the sum of $73.94.