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

[No. A-35.

Decided February 1, 1926]

*On the Proofs*

*Army pay; higher command,; operations against enemy.*— A first lieutenant of the Army, assigned to the command of a battery in the Field Artillery, .other than his own, is entitled to the pay and allowances of a captain under section 7, act of April 26, 1898, 30 Stat. 364, from the date he embarked with said battery for a country at war with the United States and not prior thereto while said battery was stationed in the United States. See *Walker*v. *United States,*43 0. Ols. 1.

*The Reporter's*statement of the case:

*Mr. Morrison ShafrotM*for the plaintiff.

*Mr. John G.*Ewing, with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant.

*505The court made special findings of fact, as follows:

I. The plaintiff, Frederic B. 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 remained in command of Battery F from January 6, 1918, until April 9, 1918.

II. On April 9, 1918, under orders from his regimental commander he was assigned to the 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 such. On June 22, 1918, the plaintiff in command of said battery embarked with said battery for a foreign country at war with the United States. During all of the time herein mentioned the United States was engaged in war with Germany.

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 allowance 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 $132.74. *506If he is entitled to the pay and allowance of a captain from June 22, 1918, to November 6, 1918, he should receive in addition to what he has received for that period the sum of $191.80.

The court decided that plaintiff was entitled to recover, in part.

Hay, Judge,

delivered the opinion of the court:

The defendant was granted a new trial in this case as a result of the decision of the Supreme Court of the United States in the case of *United States*v. Ferris, 265 U. S. 165.

In that case it was decided that an officer serving with troops in instruction camps in this country during the war with Germany is not entitled to be paid under the provision of the statute which reads:

> “ That in time of war every officer serving with troops operating against an enemy who shall exercise, under 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. * * * ”

It is said in the case cited that “ Troops in instruction camps across the ocean from the field of war can not in any proper sense be held to be operating against the enemy.”

The court in this case citing *United States*v. Ferris, supra, at page 161, stated: “ We agree with the opinion of the Paymaster General in 1898 in this matter. He said: ‘As yet, although war has been declared to exist between Spain and the United States, there are, in my opinion, with the exception of the troops embarked for the Philippine Islands, no troops operating against an enemy. There is within our borders no enemy, within the meaning of the law, for troops to operate against. An army has been called together and is being drilled, disciplined, and prepared to operate against an enemy, but until that army embarks for a foreign country or until an enemy appears on our shores and the army confronts it, it is held that no officer can receive the pay of a higher grade by virtue of anything in the act referred to.’ ”

*507In accordance with the opinion of the Supreme Court of the United States, so expressed, we are of opinion that the plaintiff was entitled to receive pay under the provisions of the statute above cited from June 22, 1918, the date of his embarkation, to November 6, 1918, which amounts to the sum of $191.80. Judgment will be entered accordingly.

Graham, *Judge;*Downey, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.