#### HARRY P. HUSE v. THE UNITED STATES

[No. D-311.

Decided June 7, 1926]

*On the Proofs*

*Navy Pay; use of Government transport; jurisdiction of accounting officer.*— A vice admiral of tlie Navy, commanding the naval forces of the United States operating in European waters, detached by the Secretary of the Navy from such command and ordered by him to report to the commandant of the third naval district, New York, N. Y., for duty, had authority to issue his own travel orders, and the discretion exercised by him therein as to whether mail steamer or Government transport should be used can not be questioned by the accounting officer of the Government.

*The Reporter’s*statement of the case:

*Mr. Cornelius II. Bull*for the plaintiff. *King c& King*were on the brief.

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

The court made special findings of fact, as follows:

I. On December 27, 1920, plaintiff was serving as vice admiral in the United States Navy abroad as commander of the United States naval forces operating in European waters.

II. While so serving on December 28, 1920, said plaintiff received a radiogram order from the Secretary of the Navy detaching him from duty as commander of the United States naval forces operating in European waters and directing him upon the reporting of Rear Admiral Albert P. Niblack, who succeeded him, to proceed to New York, N. Y., and report to the commandant of the third naval district for duty as commandant of said district.

*361III. In pursuance of said order plaintiff considered the calling dates of transports and mail steamers from European waters to the United States and decided on sailing from the port of Cherbourg, France, to the United States on the mail steamer Aquitania, as being the most expeditious method of carrying out said orders of the Secretary of the Navy and fulfilling his purpose and intention to report to said third naval district in time to familiarize himself with the duties of his new office before the retirement of his predecessor commanding that district.

IV. Plaintiff thereupon issued the necessary orders for such travel, purchase of transportation, and other details relative thereto and signed said orders as “Commanding United States naval forces operating in European waters.”

V. Plaintiff was duly relieved by Near Admiral Albert P. Niblack and sailed from Cherbourg, France, to New York, N. Y., on mail steamship *Aquitania*on January 23„ 1921. Plaintiff reported to the commandant, third naval district, on January 31, 1921, and assumed command thereof the same day.

VI. Subsequent to the performance of said travel from France to the United States via the *Aquitania*the Acting Secretary of the Navy fully approved plaintiff’s action by letter to the Comptroller General dated June 26, 1923.

VII. Plaintiff submitted vouchers over his own signature for $445.53, his actual and reasonable expenses in traveling from Cherbourg, France, to New York, N. Y., under orders to the proper officers of the Government and was paid therefor $360.04.

VIII. Subsequent to said payment plaintiff was requested by the Comptroller General of the United States to refund to the United States Treasury the sum of $360.04, alleged overpayment to him on account of travel performed as aforesaid. Plaintiff refused to comply with said request and his pay was checked by the accounting officers $360.04. The balance, amounting to $85.49, was never paid to plaintiff.

IX. Plaintiff’s actual and reasonable traveling expenses under orders of the Secretary of the Navy from Cherbourg., France, to New York, N. Y., amounted to $445.53.

The court decided that plaintiff was entitled to recover..

*362Hat, *Judge.,*

delivered the opinion of the court:

This is a suit brought by an officer of the Navy, who was a rear admiral in command of the United States naval forces operating in European waters, when he was ordered by the Secretary of the Navy to change his station. The amount for which he sues is the sum of $445.58, his reasonable traveling expenses incurred by him in traveling from France to the United States in obedience to the order of the Secretary of the Navy.

The plaintiff was traveling under orders issued by himself, as he was the officer in command, and was the only person who could issue the orders which were necessary to be issued in order that the orders of the Secretary of the Navy might be obeyed. The plaintiff, after considering the sailing dates of transports and mail steamers from Cherbourg to the United States, decided to travel aboard the mail steamship Aquitania, and' he proceeded to sign the necessary orders for said travel, purchase of transportation, and so .forth, as he was authorized by law to do. See the act of August 5, 1882, 22 Stat. 286.

The Secretary of the Navy under the act of March 3, 1909, 35 Stat. 774, was given the authority to settle all traveling expense claims when the payment thereof is authorized by existing law, and the determination of distance and what constitutes the shortest usually traveled route within the meaning of the law shall accord to such rules as the Secretary of the Navy may prescribe. Navy Regulations 1920, article 1812, paragraph 3, provides:

> “ No allowance shall be made for traveling expenses without the United States unless the same shall be incurred on the order of the Secretary of the Navy, or of the commander in chief of a fleet or station, or upon orders approved by either of the above.”

It follows that the plaintiff had authority to issue the orders under which he traveled, and he had to determine whether such travel should be performed by mail steamer or by Government transport, and in so determining he was exercising a discretion conferred upon him by the statutes and regulations. The conduct of the plaintiff in issuing the •orders aforesaid was approved by the Secretary of the *363Navy. No authority rests in any other department of the Government to question the discretion exercised by the plaintiff.

There is a statute, the act of June 30, 1914, 88 Stat. 393, which provides that hereafter no mileage shall be paid to any officer when Government transportation is furnished such officer. But in this case no such transportation was furnished, nor is it conceivable that this statute was in anywise in question when the officer, having authority to do so, exercised the discretion conferred upon him by the laws and regulations and traveled on board a ship which took him to his destination by the most direct route.

The actual and reasonable expenses incurred by the plaintiff was the sum of $445.53, and that amount is not questioned by the defendant.

A judgment will be entered for the plaintiff in the sum of $445.53. It is so ordered.

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