United States v. Ferris/Opinion of the Court

This was a suit by the plaintiff, a lieutenant colonel of Field Artillery, National Army, in the service of the United States, to recover increased pay and allowances for exercising a command as colonel of Field Artillery from August 27, 1917, to January 5, 1918. His action is based on section 7 of the Act of Congress of April 26, 1898, c. 191 (30 Stat. 364, 365), as follows:

'That in time of war every officer serving with troops     operating against an exemy 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. * *  * ' Comp. St. § 2093.

There is no dispute that the claimant is in every respect within the provision of this act except in the requirement that he was 'serving with troops operating against the enemy.' The Court of Claims held that this requirement was complied with, and gave judgment. 57 Ct. Cl. 566. The counsel for the government oppose this view and seek by this appeal to reverse the judgment.

The claimant exercised his command as colonel over the 315th Field Artillery, which was part of the 80th Division of the National Army. The division was organized and trained at Camp Lee, Va., and later on became a part of the American Expeditionary Force and engaged in action with the enemy.

During the whole period from August 22, 1917, to January, 1918, in which the claimant acted as colonel, the regiment was stationed at Camp Lee, Petersburg, Va., and this camp was used as a camp of instruction.

Was this officer serving with troops operating against the enemy? The requirement is that the service shall not only be in time of war, but also with troops operating against the enemy. Troops in instruction camps across the ocean from the field of war cannot in any proper sense be held to be operating against the enemy. Camp instruction is doubtless a necessary preliminary step to effective operation against the enemy, but it does not constitute such operation. This act was passed during the Spanish War, and the Court of Claims rested its conclusion on the opinion of the Attorney General, 22 Ops. Attys. Gen. 95, in which he held that troops assembled in camps of instruction in the United States were to be considered as operating against an enemy under the statute. We think that the construction is so at variance with the ordinary meaning of the language that we cannot follow it. It can hardly be said to have become the basis for a long executive construction and practice, because the Spanish War was soon over and the question of its application did not arise until the recent great war. We agree with the opinion of the Paymaster General in 1898 in this matter. He said:

'As yet, although war has been declared to exist between     Spain and the United States, there are, in my opinion, with      the exception of the troops embarked for the Philippine      Islands, no troops 'operating against an enemy.' There is,      within our borders, no enemy, within the meaning of the law,      for troops to operate against. An army has been called     together, and is being drilled, disciplined, and prepared to      operate against an enemy, but until that army embarks for a      foreign country, or until an enemy appears on our shores and      the army confronts it, it is held that no officer can receive      the pay of a higher grade by virtue of anything in the act      referred to.'

The judgment of the Court of Claims is reversed.