#### LONG’S CASE. Eli Long *v.*The United States.

*On the Proofs.*

*The*Act July 28th, 1866, (14 *Stat. L., p.*336, § 26,) *authorizes the President to detail an officer of the army to act as professor in any college applying for a military instmictor. The War Department establishes a rule that where officers are selected by the Department, they will be regarded as entitled to commutation for fuel and quarters during the period of their service, but where they are detailed at their own solicitation, or the solicitation of college authorities on their behalf, they will not be entitled to commutation. The claimant, on the application of a college, and with his own co-operation, is detailed to act as professor at a town which is not a military station, and at which there is no quan-termaster. No requisition for quarters or fuel is made by him while there. The Department refuses to allow commutation, and he brings his action.*

*399Where an officer of the army is detailed hy peremptory order to act as professor in a college, under the *Act July 28th,*1868, (14 Stat. L., p. 336, § 26,) he is entitled to fuel and quarters or commutation therefor. The order detailing him is one which he is bound to obey, and his right to the commutation cannot he affected hy the fact that his detail was procured hy the president of the college with his co-operation. In such a case, if there he no quarters at the place, it will he a station without troops, within the meaning of the Army Regulations, and he need not make requisition for quarters.

*The Reporters'*statement of the ease :

The court found the'following- facts:

That the petitioner is, and has been since August 16, 1867, a brevet major-general in the Army of the United States, and was, by Special Order No. 439, on September 10,1867, retired with full rank of major-general.

Under the *Act 28th July,*1866, (14 Stat. L., p. 336, § 26,) which authorizes the President, for the purpose of promoting a, knowledge of military science among the young men of the United States, upon the application of an established college or university, &c., to detail an officer of the Army to act as professor, &c., in said college, General Long, on the application of the president of Indiana University, and with his own co-operation, was, on the 9th day of October, 1868, by Special Order No. 242, detailed to act as professor of military science at the University of Indiana, situated in Bloomington, and served in that capacity until the 26th day of January, 1869, when, by Special Order No. 18, dated January 22, A. D. 1869, he was relieved from that duty.

That during said service he was not supplied by the Government with fuel or quarters, either’in kind or commutation, but provided them for himself at his own expense.

That during his said service Bloomington was not a military station, and there was no quartermaster there, and no quarters or fuel belonging to the United States with which General Long could have been supplied.

That the quarters and fuel to which General Long would have been entitled by his rank in commutation were:

For quarters.,. $367 20

For fuel.1. 130 61

497 81

*400That no requisition for quarters or fuel was made by General Long.

*Messrs. Chipman & Hosmer*for the claimant:

The detail of General Long seems to have been in strict conformity with section 26 of the statute cited. The order emanated from the President; the university had sufficient capacity, and the post to which General Long was detailed was one of those positions mentioned in the statute. The only question remaining is, did the solicitation of the officer detailed, or of the college authorities for his detail, change the legal effect of the order ? One of these questions the statute itself answers, for by the provisions of the law the detail is to be made upon the application of the university. It is true that the university applied for General Long’s detail, but the statute provides for such an application.

It will be observed that the order of detail in General Long’s case is peremptory, and leaves no choice with him. It is in the ordinary language of military orders; but we think it is a new theory of military law that a military order, issued without consultation with the officer detailed by it, carries all allowances, but, when issued at the instance of the officer, or with his assent, it is in the nature of a leave of absence. It would strike the Adj utant-General as slightly subversive of military discipline for an officer to use his detail, to which he had assented, as a leave of absence, and abandon the duty he was directed to perform, and seek his pleasure under his leave of absence. The Adjutant-General in the one case would try the officer by court-martial for neglect of duty and violation of orders; but when he came to consider the order with reference to allowances, he would tell the officer it was a leave of absence, and he was therefore not entitled to commutation. Such cannot be the law.

There is but one other question to which we invite attention, and that is whether General Long, being a retired officer, stands in a different position, as to pay and allowances, from an officer on the active list. The Adj utant-General informs the court that General Long was retired with full rank of major-general by Special Orders 39, September 10, 1867. We suppose no question will be made as to the fact that General Long was properly and legally retired.

*401.By *Act 3d August,*18(31, section 25, (12 Stat. L., 289,) and by *Act 17th July,*1862, section 12, (12 Stat. L., 596,) direct authority of Congress is given “ to assign retired officers to any proper duty,” and by tbe latter law it is declared that “such an officer, thus assigned, shall receive the full pay and emoluments of his grade while so assigned and employed.” By the 26th section of the *Act July*28, 1866, (14 Stat. L., 337,) we have seen that the President may detail officers of the army to universities; and taking this in connection with the previous statutes, it is clear that his authority is unrestricted in selecting a retired or active officer. If this is so, then when he selects a retired officer by the act of 1862, the officer is entitled to “ full pay and emoluments of his grade while so assigned and employed.” That commutation of quarters and fuel is an emolument no one will question. That term has a technical meaning, and embraces fuel and quarters. It is similar in its signification to “allowances,” and they are used interchageably throughout the statutes and regulations. (See Scott’s Military Dictionary, title, Allowances.) By circular 66 of April 22,1868, the Paymaster-General announces an opinion of the Attorney-General that, “when a retired officer is assigned to duty, it is duty proper to his retired grade; ánd when assigned to duty, he will be entitled to full pay and allowances of his grade or rank, the same as if he was on the active list.” By Army Begulations of 1863, page 161, par. 1080, it is declared, when public quarters cannot be furnished to officers at stations without troops, quarters will be commuted at a rate fixed by the Secretary of War, and fuel at the market-price delivered. It may be suggested that the word “ stations ” in the Begulations has atechnical meaning, and is restricted to such places as are known as military stations; that a university is not a military station, and therefore commutation of fuel and quarters cannot be paid in this case. We do not find anywhere among military writers, in Army Begula-tions or elsewhere, that the word “ station” has a technical signification in military service, but that it has its ordinary signification, and means what Webster defines it to mean, “post assigned; office, or part of a public duty which a person is’ to perform; situation; position; employment; occupation; business.”

It may be suggested that the commutation of fuel and quarters is not an allowance, but there can be no serious claim of *402this kind made after examining the military law upon the subject. Colonel Scott, whose Dictionary is standard authority in the Army, says, under title of “allowances,” that they embrace fuel and quarters. No one at all familiar with the service will for a moment question this.

*Mr. Assistant Attorney-General McMichael*for the defendants:

I. The claimant’s title to commutation for quarters and fuel is created by the Army Regulations (pp. 101 and 162,1863) alone, and that it can be established only in the way provided for in said Regulations, (page 162, par. 1036.) The claimant must prove requisition made before he can maintain his suit.

II. That this commutation forms no part of his pay, but is rather an indemnity for whatever he lays out through the default of the Government in not furnishing’ quarters and fuel. This point is established by analogy. (See 1 Brightly’s Dig., p. 8o, par. 291,293,294; p. 86, par. 303; p. 87, par. 314; 2 Brightly’s, p. 49, par. 114; p. 50, par. 125.)

The officer is entitled to quarters and fuel, and must take them in kind in the field. When not in the field, he must take them in kind, if the Government offers to furnish them. Should the Government fail to furnish, upon his requisition, as by par. 1086, the officer is entitled to be indemnified for his failure according to the rates established in par. 1081, for sake of uniformity and convenience, provided he incurred any damages at all, by being obliged to expend money for quarters and fuel. If he did not provide himself with quarters and fuel, he is not entitled to indemnity, or, in other words, commutation. If he failed to make a requisition, he waives all indemnity.

Quarters and fuel form a part of the regular and ordinary allowánces only when they are required in kind. If the Government fails to answer such requisition, then the officer can furnish himself with quarters and fuel, and will be entitled to his outlays according to the agreed amounts of par. 1081. ■

But the *amount*paid *in commutation*cannot possibly be regarded as a part of the regular allowance, since, then, officers in the field and in the different cities would be entitled to different and unequal pay and allowances, based upon nothing but the accident of station. The rates established in par. 1081 are consistent with no other hypothesis than that they are intended as fixed measures of damages, and nothing else.

*403The report of the Secretary of War shows Long to have been a retired officer. By *Acts August*3,1861, &c., &c., (2 Brightly, 51 and 52,) the officer retires with pay, four rations, and *no other allowance.*Hence, in the case of retired officers especially, do the quarters and fuel constitute *no part*of the allowances. They are provided to such officers when called to duty, as per section 35 of the act of August 3,1861, and entitle* the officer to whatever damages he suffers by failure on the part of the G-overnment. He has a right to indemnity, and nothing else.

Losing, J.,

delivered the opinion of the court:

A retired officer, when called into service and assigned to duty, is entitled to receive the full pay and the emoluments of his rank. But the War Department rejected the claim of the petitioner upon the grounds set forth in the following memoranda:

> ■“MEMORANDA. — The following decision relates to officers detailed as professors at colleges under section 26, *Act July*28,, 1866:

> “August 17> 1869, the Adjutant-General submitted to the Secretary of War the question of allowances to officers detailed at colleges, and the following decision was made by the War Department, August 5,1870 : *'*In all cases where Army officers were selected by the War Department for duty at colleges and universities, under the act of Congress of July 28, 1866, they will be regarded as entitled to commutation of fuel and quarters during the period of their service under such selection j but in all cases where such officers were detailed in pursuance of their own solicitations, or the solicitations of college authorities or others in their express behalf, they are not to be regarded as entitled to commutation allowances.’ The principle in view being, that a ‘ detail’ by the Department, without consultation with the officer detailed, was compulsory as any military duty, and therefore should carry all allowances; but when procured at the instance of the officer, or with his assent-, it was in the nature of a leave of absence, to permit him to accept the place of professor.”

We think the distinction here made is not legally tenable. When an officer is acting under orders which in military subordination he is bound to obey, he is acting in the line of his duty. Such orders ar the command of his superior, and his assent is *404immaterial and of no legal effect; be is “ one under authority,” and obedience to that is *Ms duty,*and therefore, in obeying that, he is on duty. When he is “ *on leave,*” as the expression signifies, he has had permission to leave his duty, and for that reason, and that only, cannot claim the pay and emoluments which belong to him only when on duty, and then cannot be denied to him.

When General Long was ordered to Indiana University he had no election as to obeying that order; that place was his assigned post, and his duty obliged him to go there and to stay there until he was relieved from duty there by a subsequent order, the necessity for which is shown by the fact that it was issued. So that all the time he was there, he was under orders, and was acting in fulfillment of his military duty, as much as any officer at West Point or the Naval School.

It was contended at the bar that commutation for quarters and fuel was a right created by the Army Regulations, and therefore could not be used except on the terms prescribed, and that by them officers in the field were furnished with quarters and fuel in kind, and that at stations and posts officers are entitled to a commutation for quarters and fuel only in the single case that the United States had omitted to furnish them after a requisition made in a manner directed, and for this the authority cited was the article 1086. That article is in. these words :

> “ Abt. 1086. An officer arriving at a station shall make a requisition on the quartermaster for his quarters and fuel, accompanied by a copy of the order putting him on duty.”

But the Army Regulations do not create the right of commutation, for that is an emolument which the law creates as much as it does the officer’s pay, and the Army Regulations only regulate the right. And it would seem to be manifest that the article referred to has no application to this case; By it the requisition must be made on the quartermaster at the station to which the officer is ordered, and the article is applicable only where there is a quartermaster; and at Blooming-ton there was none, and neither quarters nor fuel belonging to the Government. Compliance with that article, therefore, was impossible in the position in which the Government had placed the petitioner, and *"Lex non cogit ad impossibilia."*

And the case would seem to fall more appositely under article 1080, which is as follows:

> *405“When public quarters cannot be furnished at stations without troops, * * * * quarters will be commuted at a rate fixed by the Secretary, and fuel at the market-price delivered.”

Under the orders given to General Long, Bloomington was for him a station without troops. And the evidence shows that the allowance claimed by General Long is the amount in commutation to which an officer of his rank, on duty at a station without troops, would be entitled to. As Bloomington was not a military station, it may be that the article was not made for a case like this, and it certainly was made before any such case had or could have arisen; for this case is created by the *Act July*28, 1866, which first authorized the detail of officers to colleges, and thus created a service unknown before, and for which the Army Regulations were not made. And then the case is, that General Long was placed on duty at a station which was not a military station; that he was, while on duty, entitled to the quarters and fuel he claims, either in kind or commutation, by his rank; that the Government did not furnish them in kind or commutation, and by the position in which they placed him precluded him from obtaining them by requisition, or otherwise than by purchase, and thus authorized that, not only because the quarters and fuel were his right, but also because they were necessary in the performance of the duty on which they had ordered him.

The judgment of the court is that the claimant recover the sum of $497.81.