#### FREDERIC R. LANAGAN v. THE UNITED STATES.

[No. *35-A.*

Decided January 2, 1923.]

*On the Proofs.*

*Army pay; etuereise of higher command.-*— Where a first lieutenant in a certain battery in the absence of his captain is assigned in orders issued by competent authority to command said battery, he exercises such command by virtue of his seniority and is not entitled to higher command pay under the act of April 26, 1898, 30 Stat. 365. *United States*v. *MitoheU,*205 U. S. 161.

*Same.*— Where a first lieutenant in one battery is assigned in orders issued by competent authority to the command of another battery. he is entitled to higher command pay under the act of April 26, 1898, *supra. Ferris*v. *United States,*57 O. Ols. 566.

TTu-» *Reporter's*statement of the case:

*Mr. Morrison Shafroth*for the plaintiff.

*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, Frederic R. Lanagan, was appointed first lieutenant, Field Artillery, National Army, in the service of the United States, August 15, 1917, and was on that day assigned to the Three hundred and forty-first Field Artillery, Eighty-ninth Division.

In November, 1917, the plaintiff, while serving with Battery F, Three hundred and forty-first. Field Artillery, was relieved from duty with that battery and assigned to brigade headquarters, One hundred and sixty-fourth Field Artillery Brigade, and was detailed from there to the Brigade School of Fire December 11, 1917. About January 1, 1918, the plaintiff was detailed from the Brigade School of Fire as an instructor at the Third Officers’ Training Camp. Shortly thereafter the captain of Battery F was ordered to Fort Sill and the plaintiff received a release from his assignment as instructor and was by the order of the commander of his regiment placed in command of Battery F, Three-hundred and forty-first Field Artillery, on January 6, 1918. He re*51mained in command of Battery F from January 6, 1918, until April 9, 1918.

II. On April 9, 1918, under orders from bis regimental commander, be was assigned to tbe command of Battery E, Three hundred and forty-first Field Artillery, and remained in command thereof to October 11, 1918, on which last-named day, under orders from his regimental commander, he took command of a battery of French guns attached to the Three hundred and forty-first Field Artillery, and remained in command thereof to November 6, 1918, on which last-named day he was appointed captain of Field Artillery and accepted his commission as snch. During all of the time herein mentioned the United States was engaged in war with Germany, and the service of the plaintiff was with troops in the field operating against an enemy, part of the time in the United States and part of the time at the front in France.

III. During all of this period the plaintiff received the pay and allowances of a first lieutenant. If the plaintiff is entitled to the' pay and allowances of a captain from January 6, 1918, to April 9, 1918, he should receive in addition to what he has received for that period the sum of $182.74. If he is entitled to the pay and allowances of a captain from April 9,1918, to November 6,1918, he should receive in addition to what he has received for that period the sum of $295.44.

MEMORANDUM

BY THE COURT.

As to the service of the plaintiff in command of his battery from January 6 to April 9, 1918, we are of the opinion that the plaintiff is not entitled to the pay and allowances of a captain for the reason that the command exercised by him was in discharge of the ordinary duties of the service. In the absence of his captain the command of the battery devolved upon the plaintiff; the fact that he was away from his battery on detail would not make any difference when he, by competent authority, was ordered back to his battery. The special order issued by' his regimental commander was superfluous and not necessary, and can not be construed as “ an assignment in orders issued by competent authority.” *52
      *Humphreys*v. *United*States, 38 C. Cls. 689-692; *United States*v. *Mitchell,*205 U. S. 161.

The service of the plaintiff as commander of Battery E, Three hundred and forty-first Field Artillery, and his service as commander of a battery of French guns attached to the Three hundred and forty-first Field Artillery present a different question. It can not be said that he had any connection with Battery E before he was assigned to command it. He was not a subordinate officer of Battery E or of the battery of French guns attached to his regiment. He was not in command of either of these batteries by reason of the fact that he was the senior officer of either of them; but took command of them by virtue of an order of his regimental commander, who had authority to issue such an order. It is probable that Battery E had a first lieutenant of its own, who, but for the order placing tfie plaintiff in command of it, would in the oi'dinary routine of the service have taken command of it in the absence of its captain. At all events, it does not appear that the plaintiff was assigned to Battery E as its first lieutenant. It does appear that the plaintiff was assigned to command a battery to which he did not belong; that he was under an assignment in orders issued by competent authority, exercising a command above that pertaining to his grade; that being the case, he was entitled to receive the pay and allowances of the grade appropriate to the command so exercised. The same is true as to his service with the battery of French guns. His service with these two batteries was from April 9, 1918, to November 6, 1918, and he should recover in addition to what he has received the sum of $295.44.

The statute (act of Apr. 26, 1898, 30 Stat. 365) under which the plaintiff claims 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.”

See also *Ferris*v. *United*States, 57 C. Cls. 566.

Judgment for plaintiff in the sum of $295.44.