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UNITED STATES v. PHISTERER.

October 1, 1876

UNITED STATES
v.
PHISTERER.



APPEAL from the Court of Claims.

The opinion of the court was delivered by: Mr. Justice Hunt delivered the opinion of the court.

Mr. Assistant Attorney-General Smith for the United States.

Mr. Halbert E. Paine, contra.

The present case is one of a class of which several are now pending in this court, and many more, it is understood, are before the Court of Claims.

The claimant was a captain of infantry in the United States army, and on the seventh day of January, 1870, by special order from the Adjutant-General's office, at his own request, was ordered home to await orders. This was done by virtue of the Consolidating Act of March 3, 1869. The claimant proceeded from Fort Bridger, Wyoming Territory, where he then was, to his home in New York City. On the 28th of February, 1870, he reported as waiting orders at that place, and afterwards as waiting orders at Littleton, N. J., which was then his home.

The claim now made is for mileage in travelling from Fort Bridger to New York, and for commutation for quarters and for fuel while thus awaiting orders. orders.

The Court of Claims allowed the petitioner both for his mileage and the commutation for quarters and fuel during the period mentioned. The questions will be separately considered.

1. As to mileage.

Comment is made upon the circumstance that the claimant reported himself to the department as awaiting orders at the city of New York, on the 31st of January, 1870, specifying that place as his home, and that on the 31st of March following he reported himself at Littleton, N. J., specifying that place as his home. We see nothing in this that should prejudice the claimant's right of recovery. New York may well have been his home in January, and Littleton his home in March. It is not extraordinary nor a ground of suspicion that an officer should change his place of residence. Whether he resided in New York or in New Jersey could make no difference in his position in the army, or in his liability or readiness to respond to any orders given to him. It was indeed important that he should keep the department advised of his residence, that he could be called upon when it was desired. This he did. The department made no objection to this change of residence at the time, nor does it place its refusal to pay the mileage upon this ground. We think the circumstance quite unimportant.

The effect of the order to proceed to his home and there to await orders, and the difference between this status and that of an officer 'absent from duty with leave,' was considered by this court in the United States v. Williamson, 23 Wall. 411. That decision secures to the officer his full pay while thus awaiting orders, and we find no occasion to correct any thing contained in it. We are still of the opinion that the officer was not absent on leave, but that he was awaiting orders at his home. It results also from this decision, that, in thus proceeding to his home, he was travelling under orders.

The provision relating particularly to the case we are considering is found in sect. 1109 of the Army Regulations, authorized and confirmed by the act of July 28, 1866. It is there provided that 'an officer who travels not less than ten miles without troops, escort, or military stores, and under special orders in a case from a superior, or a summons to attend a military court, shall receive ten cents mileage.' This means that he shall be entitled to an allowance of ten cents for each mile thus travelled. It is hardly denied that the claimant was travelling within the meaning of this regulation.

But it is contended that, under regulation, sect. 1117, the department was justified in withholding the allowance. That regulation is in these words: 'When officers are permitted to exchange stations, or are transferred at their own request from one regiment or company to another, the public will not be put to the expense of their transportation. They must bear it themselves.' If A. at one station and B. at another desire to exchange stations or regiments or companies with each other, and prefer a request to that effect, the provision assumes that the commanding officer may, in his discretion, grant it; but, as no public interest is advanced by it, and it is consented to for the advantage or pleasure of the two officers, they must bear their own expense of transportation in making the exchange. This is just and reasonable.

We are inclined to think that it would be too narrow a construction of this provision to hold that it required that two officers should be concerned in the exchange. An exchange from one station to another station by the same officer at his own request, if found compatible with the public service, would be within the words of the rule, and apparently as much within its spirit as when the exchange was made by and between two officers.

But we are of the opinion that Captain Phisterer did not make an exchange of stations within the meaning of this regulation. In other words, although he left a military station at Fort Bridger, his home at New York, to which he went, did not become, and is not to be deemed, a military station. In the broadest use of language, no doubt the word 'station' means a place or position; and it may be said that wherever a man, in pursuance of orders, stays or remains, he is stationed, and that if he is a military man, such place becomes a military station. This word (station) has a recognized and a different meaning under different circumstances. It is a technical word ...


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