#### JAMES D. GRAHAM v. THE UNITED STATES.

No. 11957

January 22, 1883.

The claimant, a naval officer, between August 10 and September 16, 1872, traveled, under orders of his superior officer, from Washington via New York, Aspinwall, and the Isthmus of Panama, to Mare Island, in California. He claimed ten cents a mile as traveling expenses, under the *Act of March*3, 1835 (4 Stat. L., 755). He was paid, in accordance with the uniform practice of the Department, only his actual traveling expenses for so much of the journey as was performed out of the United States. He brings his action for the difference between that amount and ten cents a mile.

Held-:

I. The *Act*o/1835 (4 Stat. L., 755), which provided that ten cents a mile should be. allowed to naval officers for traveling expenses while traveling under orders, made no distinction between traveling in or out of the country. That provision was not repealed by the *Act of April*17, 1866 (14 Stat. L., 38), nor by the *Act of July*15, 1870 (16 Stat. L., 332), and was in force during the period of the claimant’s traveling in 1872. So settled in *Templets Case*(14 C. Cls. R., 377, and 105 U. S. R., 97). See note at bottom of next following page.

*84II. The rule which gives weight to contemporaneous construction put upon a statute by those charged with its execution applies only in oases of ambiguity and doubt, and there being neither, in the provisions of the Act of 1835 relating to the travel pay of officers of the Navy, those officers were in 1872 entitled to ten cents a mile without as well as within the country, notwithstanding the long practice of the executive officers to the contrary.*

The following are the facts found by the court:

I. Claimant was an officer in the Navy from August 10 to September 16,1872.

II. August 10, 1872, claimant was ordered by his superior officer to proceed from Washington via New York, the Pacific mail steamer, Aspinwall, and the Isthmus of Panama, to the navy-yard at Mare Island, California, and report for duty on the United States steamer Benicia.

III. Claimant proceeded in accordance with said order, completing his journey September 16, 1872.

IY. In obeying said order, claimant traveled 6,363 miles, viz, from Washington to New York, 229 miles, and from New York to Mare Island, 6,134 miles.

Y. For his traveling expenses from Washington to New York, claimant was paid $22.90, being at the rate of ten cents per mile.

YI. For his traveling expenses from New York to Mare Isl- and, claimant received only transportation on the Pacific mail steamers, for which the defendants paid $150.

YII. In 1870, Lieut. E. M. Berry, U. S. N., was paid at the rate of ten cents per mile, less tax, for travel from San Francisco, Cal., to Sitka, Alaska, via Victoria, British Columbia, which was less than the actual expenses of such travel.

VIII. Since the passage of the *Act of March*3,1835 (4 Stat. L., 757), and until the late decision in the Temple Case in the Supreme Court, October term, 1881, the Navy and Treasury Departments have, with the exception set forth in finding YII, *85construed that act and subsequent acts on that subject, and decided that the ten cents per mile did not apply to travel to, from, or in foreign countries, but only to travel *within*the United States.

IX. The custom, ruling, and practice of the Navy Department and the accounting officers, up to and at the time of the passage of the Act of July 15, 1870, was not to pay naval officers, traveling abroad under orders, expenses of transporting their baggage.

X. The regulations of the Navy Department adopted and issued in 1832 provide as follows:

[Extract.]

*Hules of the Navy Department, regulating the civil administration of the Navy of*

*the United States.*

* **** City of Washington. * * *

1832.

AI.I.OWANCE FOR TRAVEL AND TRANSPORTATION OF BAGGAGE.

A- A A A . A A *

Chapter X. — Allowances.

§ 2. When the travel is performed in a conveyance by land, these allowances are fifteen cents per mile to captains and masters commandant and to judge-advocates not belonging to the Navy; and twelve cents per mile to all others.

When the travel is performed in a conveyance by water, the allowances are ten cents per mile to those in the first class, and eight cents per mile to those in the second.

ALLOWANCE FOR TRAVELING EXPENSES FROM ABROAD.

§ 1. Officers returning' to the United States when ordered home, or coming home sict, when no conveyance in a public ship is to be bad, will have their accounts for piassage money paid by the Navy agent.

Soon after the passage of the Act of' March 3, 1835, and on the 6th day of April, 1835, the Treasury Department issued the following circular, to wit:

*86[Extract.]

CIRCULAR.

Treasury Department,

Fourth Auditor’s Office,

*April*6, 1835.

Traveling expenses *within the United States*are fixed by law at ten cents per mile, and will be paid as heretofore by Navy agents. Tlie nearest mail route will be the guide, to be ascertained, when practicable, from the Post-Office book of distances, &c.

The usual and necessary passage money actually paid by officers returning from foreign service, under orders, or upon sick ticket, when they cannot return in a public vessel, will be paid as heretofore, as well as the like expenses of officers going out.

*it** * * 7* * *

Very respectfully, your obedient servant,

Amos Kendall,

*Fourth Auditor.*

* *it a a it **

Second Comptroller’s *Office,*

*April*6, 1832.

Sir: The circular instructions of April 6, 1835, made *in conformity*with the Act of March 4,1835, “to regulate the pay of the Navy,” submitted by you for my consideration, are approved.

*it a * a ^ a**

I am, sir, very respectfully, yours, &c.,

[seal.] J. B. Thornton,

*Second Comptroller.*

Paragraphs 1142 and 1143 of the Navy Regulations of 1865 provide as follows:

1142. The allowance for the traveling expenses of officers of the Navy *within the United States*is fixed by law at ten cents x>er mile. For traveling out of the United States the actual expenses only are allowed.

1143. The actual and necessary traveling expenses of officers proceeding from the United States, under orders, for foreign service, will be paid upon the x>roduction of bills and receipts; or if they shall certify that it was not liracticable to obtain receipts, then upon a statement of the actual and necessary expenses, made with as much particularity as may be in their power, and certified to be correct. The traveling expenses of officers returning to the United States from foreign service, under orders, or under permission granted in consequence of sickness or medical survey, will be paid upon the same evidence as is required by the last rule in the case of officers going abroad.

Paragraphs 1491 and 1492 of the Navy Regulations, issued March 31,1870, are in the same language as last above.

XI. It was the practice of the Navy Department and the ac*87counting officers for several years prior to the passage of tbe Act of March 3,1835, to pay only actual expenses for travel at sea and abroad.

XII. Under the practice of the War Department, prior to' and since July 17,1862, officers of the Army have been allowed, mileage for travel under orders out of the United' States.

XIII. Under said practice an advance was made to such officers on account of mileage for travel under orders, whether within or without the United States.

*Mr. Robert B. Lines*and *Mr. John Paul Jones*for the claimant :

1. The *Act of March*3, 1835 (4 Stat. L., 755), allows 10 cents per mile for naval officers’ “ traveling expenses, under orders.” Defendants claim that this allowance is limited to travel m the United States, and adduce a course of office from 1835 to 1874. As an executive construction this was contrary to the plain words of the statutes, and therefore entitled to no weight. (Smith Stats., 739, *Bdwards’s Lessee*v. Darby, 12 Wheat., 206; *Union Insurance Go.*v. *Hoye,*21 How., 35 ; *Temple*v. *United States,*14 C. Cls. E., 377 5 105 U. S. B., 97.)

2. A practical construction has no force where individual rights are involved *(United States*v. *Lytle,*5 McLean, 9); moreover, a course of office, like a particular custom, must be peaceable, and this was disputed; it must be continuous, and this was interrupted. (See case of Berry, who received mileage for travel from San Francisco to Sitka through British Columbia.)

Defendants explain that it was the custom to pay mileage for travel between home ports, even through foreign territory. If so, then Graham’s case comes within the custom, as his travel was from New York to San Francisco. But it would appear from Berry’s evidence that the practice was to pay mileage only when it was less than expenses. If so, the custom was void for uncertanity.

3. Section 4 of the *Act of July*15 1870 (16 Stat. L., 332), which 'is relied on as impliedly sanctioning this custom, only enforced, as to officers traveling abroad, a provision of the *Act of April*17,1866 (14 Stat. L., 38), which *permitted*an allowance for transportation of baggage, at home and abroad. This authority was never exercised, and Congress, while repealing it for home travel, required the allowance to be paid officers *88abroad, probably because baggage is charged for in foreign countries, while here it is transported free.

4. An argument *ab inconveniente*is also made against the claim. Such an argument cannot prevail against the plain words of a statute. (45 Me., 507; 4 B. Mon., 89; 3 Mass., 215, 523; 11 Pick., 487; 1 Kans., 285; 5 Md., 503, &c.)

*Mr. A. D. Robinson*(with whom was *Mr. Thomas Simons,*Assistant Attorney-G-eneral) for defendants:

1. The first statute on the subject was that of *Man-oh*3, 1835, (4 Stat. L., 757), which forbids all allowances, including transportation of baggage, except 10 cents a mile for traveling expenses when under orders.

Then came the *Act of July*17, 1862 (12 Stat., 594) (latter part of sec. 7), which only allowed mileage *“*for travel actually performed *at his own*expense and in obedience to orders.”

Then the *Act of April*17,1866 (14 Stat. L., 38, sec. 4, ch. 45), which repealed the prohibition of the Act of 1835, with reference to rent, furniture, lights, fuel, and baggage.

Then came the *Act of July*15,1870 (16 Stat., L., 332), which repealed all laws allowing rations and traveling expense to officers.

Previous to the Act of March 3, 1835, 15 cents per mile was allowed to naval officers traveling in the United States under orders, to captains and masters commandant by land, and 12 cents to all others; by water, 10 cents and 8 cents, and officers returning to the United States from abroad had their traveling expenses paid (Cong. Debates, vol. 11, part 1, pp. 719 and 880, for 1834^35.)

The Naval Regulations of 1832 provided actual expenses for travel abroad.

After the passage of the Act of March 3, 1835, the Treasury Department issued a circular providing for actual expenses for the same.

The Regulations of 1865 and 1870 also provided the same.

2. The claim is barred by the statute of limitations. Claimant reported September 16, 1872. The decision in *NeuratWs Case*(17 G., Cls. R., 225) seems to say that it was in time. (An-gelí on Limitations, 37 and sub., 6th ed.)

3. If the Act of 1835 was intended to apply to foreign travel, *89it would1 “ produo© tbe greatest practical inconvenience and absurdities” (4 Opin., 95), and would be “productive of inequality and injustice, ” and therefore the construction made by the Department and accounting officers, that it only applied to mileage within the United States, was proper1.

3. The custom of the Navy Department and accounting officers, previous to the Act of March 3, 1835, of paying mileage only in the United States and actual expenses for foreign travel, and so continuing to do after that act and up to the Act of July 15,1870, and the various regulations, and the passage of the various laws above mentioned, from time to time, with full knowledge of said custom, and no material change made in the language used, creates a strong presumption (quite conclusive) that Congress only intended such mileage to be allowed for travel within the United States, and that for foreign travel only actual expenses to be allowed. *(Moore’s Gase,*95 U. S. B., 763; *Smythe*v. *Fislce,*23 "Wall., 380-382; 2 Opin., 558; 4 Opin., 470.)

4. Not only do the facts mentioned in the last point create such presumption, but Congress ratified said construction by the *Act of July*15,1870 (16 Stat. L., 332).

At least since 1832 the custom had prevailed of paying-actual expenses for travel abroad, except for baggage — a uniform practice of nearly forty years.

Congress must be presumed to have had knowledge of it as above stated.

Having such knowledge, and more particularly of the Begu-lations of 1865 and 1870, Congress, by the Act of July 15,1870, ratified the practice of the Departments in paying actual expenses for foreign travel. No other reasonable construction can be given to the language.

Again, in view of the practice and the various regulations providing for payment of actual expenses only, if Congress intended to change the mode of payment, which then had been in use nearly forty years, they would have used more *cupt language*to express such intent — language that could not be misconstrued.

■ It will be observed that they did not use the word “ mileage,” as in the Act of 1835.

It is as clear that Congress intended to ratify that construction and practice of the Department as the construction given *90to an act of Congress by the Supreme Court in *Alexander’s Case*(12 Wal., 177, and 7*0. Cls. R., 205).

4. But the regulations prescribed by the Secretary of the Navy from time to time, as above noted, are *law. (Gratiot*v. *United*States, 4 How., 80; *JSx parte Seed,*100 XJ. S. R., 22.)

The Secretary of the Navy, at three several times, in 1832, 1865, and 1870, adopted and issued regulations providing for only actual expenses for travel abroad. And this is not inconsistent with any law of Congress.

5. Claimant did not travel “ at his own expense,” and therefore cannot recover.

It is conceded that if an officer travels in a government ship, he cannot have mileage or expenses.

So, again, if the Government charters a ship (the crew navigating it), and transports an officer in it, it will be conceded that he could not then have mileage.

If the Government purchases the passage-ticket for an officer on a steamship, what is the difference?

In either case the “ traveling” expenses and subsistence are borne by the Government. The law is not that he shall have traveling expenses whether he pays any or not, but when he travels “ at his own expense.”

*

 Note. — The Acts of 1835 and 1870 tere referred to were incorporated into Revised Statutes, $ 1566. That section was afterwards modified by the *Act of June*30,1876 (Ch. 159, 19 Stat. L., 65, and 1 Suppl. to Rev. Stat., 218).

By the *Act of August*5,1882 (22 Stat. L., 286), it is provided that “offioers *of*the Navy traveling abroad under orders hereafter issued shall travel by the most direct route * * * and shall receive, in lieu of the mileage now allowed by law, only their actual and reasonable expenses, certified under their own signatures and approved by the Secretary of the Navy.”

OPINION.

Davis, J.,

delivered the opinion of the court:

In the second section of the Act to regulate the pay of the Navy of the United States, approved *March*3,1835 (4 Stat. L., 757), it was enacted that the yearly allowance provided in the act should be all the pay, compensation, and allowance that should be received, under any circumstances whatever, by any officer or person in the naval service of the United States, except for traveling expenses when under orders, for which ten cents per mile shall be allowed.

By the fourth section of the *Act of April*17,1866 (14 Stat. L., 38), Congress repealed so much of the second section of the act of 1835 as prohibited allowances to naval officers for rent of quarters, or for furniture, or for lights, or for fuel, or for transporting baggage.

By the third, fifth, and seventh sections of the Act of July 15, 1870, Congress established rates of pay for officers of all *91ranks and grades in the Navy, and by tbe fourtli section of that act (16 Stat. L., 332) repealed all laws authorizing additional allowances, except those allowing rations and traveling expenses to officers, and further enacted that their traveling expenses in foreign countries should be construed to include such expenses of transportation of baggage as were necessarily incurred, but that no charge for transportation of baggage in connection with travel in the United States should be allowed.

This was the state of the statute law at the time when the travel took place which forms the subject of this suit. The claimant went to San Francisco via Panama, by order of the Department. The Act of 1835 commanded the accounting officers of the Treasury to allow him 10 cents a mile for that travel. The Act of 1866 authorized a further allowance for transportation of baggage in case extra expense was incurred on that account. The Act of 1870 confined that authority to make such allowance for baggage transportation to travel not within the United States. But as noclaim is made for transportation of baggage, this modification of the Act of 1835 is unimportant. If the case is to rest upon the legislation of Congress, there is no room for doubt as to the rights of the claimant.

The Attorney-General, however, suggests that we should set aside the legislation of Congress and decide this case on a construction of the law by the Executive Department, which he asks us to find, and we have substantially found, was for over forty years in conflict with the statute as construed by the court. He would have us assume that Congress must have known of the departmental annulling of the legislative will, and decide in substance that because the act of 1835 was not re-enacted by Congress as a renewed expression of legislative will, it must be regarded as repealed by departmental regulation.

We cannot give such force to executive construction; 'and even if we were disposed to do so, we should be restrained by an expression of the opinion of the Supreme Court on the exact point raised by the Government, which binds us, whatever force it may be supposed to have at the accounting offices of the Treasury.

In the *Army appropriation Act of June*16, 1874 (18 Stat. L., 72, and Supplement to Eev. Stat., 37), a provision was inserted that only actual traveling expenses should be allowed to any *92person bolding employment or appointment under tbe United States, and all allowances for mileages and transportation in excess of tbe amount actually paid were thereby declared illegal. Although contained in an army bill, this sweeping provision operated as general legislation affecting tbe Navy as well as tbe Army.

As if to correct this inadvertent legislation, Congress, by tbe naval appropriation *Aet of June*30,1876, chap. 159 (19 Stat. L., 65, and 1 Suppl. Eev. Stat., 218), enacted that—

> So much of the act of June sixteenth, one thousand eight hundred and seventy-four, making appropriations for the support of the Army for the fiscal year ending June thirtieth, one thousand eight hundred and seventy-five, and for other purposes, as provides that only actual traveling expenses shall he allowed to any person holding employment or appointment under the United States while engaged on public business, as is ap>plioahle to officers of the Navy while so engaged, is hereby repealed, and the sum of eight cents per mile shall be allowed such officers while so engaged in lieu of their actual expenses.

In 1878, Commodore Temple, by orders of tbe Navy Department, traveled from New York to Montevideo and back. The accounting officers allowed him bis traveling expenses, which were less than eight cents per mile. He demanded tbe statutory pay of eight cents per mile, and on refusal brought suit in this court. We gave judgment in bis favor. (14 C. Cls. R., 377.) Tbe Government appealed, and tbe Supreme Court unanimously affirmed tbe judgment in this court. *(Temple’s Case,*105 U. S. R., 97.) In tbe opinion tbe court expresses its views upon tbe Act of 1835, and upon tbe conduct of tbe accounting officer's in construing it. Tbe court say:

> The law as it stood wheu the travel was performed was explicit, and is not open to construction. ** * When this travel was performed there was not a line on the statute books of the United States which made any provision whatever, under any circumstances, for allowing officers of the Navy, when engaged on the imblie business, their actual expenses of travel. The only law ever enacted which made such provision had been expressly repealed by the act on which the appellee based his claim for mileage. This act declared him entitled, without condition or limitation, to mileage at the rate of eight cents per mile, and is the only law on the subject. * * The attempt to justify the decision of the accounting officers of the Treasury is based on an alleged practice in conformity therewith which it is said grew up in the Navy Department under the Act of 1835. The practice, if such there was, finds no higher warrant or sanction in the Act of 1835 than in the Act of 1876. * * The law on which the appellee bases his claim is *93plain and unambiguous. We must givo it its natural and obvious meaning, and thus interpreted it leaves the'appellant no ground to stand on.

Note. — In two other cases, involving substantially a similar state of facts, those of *Walton Goodioin*and *William D. Toy*v. *The United States,*judgment was rendered for the claimants for the amount of their respective claims. No opinions were given, as the foregoing opinion in Graham’s Case covered the whole ground.

In tbe appeal of tbe *Swift, Courtney & Beecher Company’s Case,*reported in tbe same volume (105 U. S. R., 691), tbe Supreme Court say:

> Tbe rule which gives determining weight to cotemporaneous construction put upon a statute, by those charged with its execution, applies only in oases of ambiguity and doubt. *(Edwards’s Lessee*v. *Darby,*12 Wheat., 206; *Smythe*v. *Fiske,*23 Wall., 374; *United States*v. *Moore,*95 U. S. R., 760; *United Stales*v. *Pugh,*99 ibid., 265.)

Tbe Supreme Court bas said of a law parallel in every respect with that which we have now to construe, that it is plain and unambiguous, and leaves tbe Government resisting it no ground to stand on. This emphatic language leaves no possible excuse for resorting to contemporaneous executive construction.

Judgment will be entered in tbe claimant’s favor for four hundred and sixty-three dollars and forty cents.