United States v. Mitchell (205 U.S. 161)/Opinion of the Court
It is conceded by the government that claimant is entitled to extra pay, so that the question is to what amount. Was he entitled to receive one month's extra pay of a captain of cavalry, mounted ($166.66), or one month's extra pay of a second lieutenant of cavalry, mounted ($125)?

We lay out of view the suggestion that if claimant were entitled to the extra pay of a second lieutenant of cavalry only, then that a certain sum or sums ought to be deducted as having been previously improvidently paid by the auditor for the War Department. The United States filed no setoff or counterclaim, and we think we cannot overhaul the allowance by the auditor for the War Department in the circumstances. Such payment, if made in error, did not determine the question before us within United States v. Hite, 204 U.S. 343, 51 L. ed. 514, 27 Sup. Ct. Rep. 386.

The claim is made under § 7 of the act of April 26, 1898 (30 Stat. at L. 364, 365, chap. 191, U.S.C.omp. Stat. 1901, p. 895), reading as follows: '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.'

The main question is whether claimant exercised, 'under assignment in orders issued by competent authority, a command above that pertaining to his grade?' When he assumed command of his company. August 26, 1898, he was the senior officer present, the captain and the first lieutenant being absent. Section 253 of the Army Regulations of 1895, then in force, provided: 'In the absence of its captain, the command of a company devolves upon the subaltern next in rank who is serving with it, unless otherwise specially directed.'

Assistant Attorney General Van Orsdel and George M. Anderson for appellant.

George A. King, William B. King, and Clark McKercher for appellee.

[Argument of Counsel from pages 166-168 intentionally omitted]

This embodied the rule of succession by seniority prevailing in the ordinary course of military affairs, while, at the same time, it recognized that there might be exceptions, in respect of which special direction was required, and § 7 of the act of April 26, 1898, applied to such cases.

The exceptions spring from necessity, and where it is apparent that that does not exist, orders relied on as the basis for increased pay under § 7 are ineffectual for that purpose.

In Humphreys v. United States, 38 Ct. Cl. 689, the court of claims held that what the law contemplated was 'necessary, and not gratuitous, assignments, and only such as would be for the good of the service for the vigorous prosecution of the war.' Chief Justice Nott, speaking for the court, said: 'It seems to the court incontrovertible that the words 'under assignment in orders issued by competent authority' constitute the controlling limitation of the statute; and the limitation implies that the benefits of the statute extend only to cases where such an order is necessary to impose the burden of the higher command upon an officer.' We concur in that view, and, tested by it, Special Orders No. 44, dated August 24, 1898, whereby the lieutenant colonel of the First Ohio Volunteer Cavalry announced that First Lieutenant Forsyth was relieved of the command of troop E, and, as incident thereto, that Second Lieutenant Mitchell was appointed to the command, cannot be considered as an 'assignment in orders issued by competent authority,' within § 7. That section was not enacted to give increased pay for the discharge of the ordinary duties of the service, but to give compensation for the greater risk and responsibility of active military command, and no assignment in orders when unnecessary to that end can make a case within the statute. Truitt v. United States, 38 Ct. Cl. 398, 406; Parker v. United States, 1 Pet. 293, 297, 7 L. ed. 150, 151. Here the additional duties discharged by Lieutenant Mitchell were 'the ordinary incidental duties of military official life which go with each officer's commission.' 38 Ct. Cl. 692.

The attempted confirmation by Special Orders No. 97 must fail of effect under § 7 for like reasons.

Other questions argued at the bar need not be discussed.

Judgment reversed and cause remanded, with a direction to enter judgment in favor of claimant for $125. 

Notes