United States v. Lippitt

APPEAL from the Court of Claims.

This was a claim of Lippitt for $1,742, to which he alleged that he was entitled as commutation for fuel and quarters while he was in the military service of the United States. It was referred to the court below by the Department of War.

He thereupon filed his petition. The United States traversed all its averments, and also pleaded that the claim was not filed in or transmitted to the Court of Claims within six years after it had accrued.

The court below found the following facts:--

1. The claimant was colonel of the Second California Volunteers, a regiment in the military service of the United States, from some day preceding the 2d of July, 1863, to some day subsequent to the 1st of August, 1864.

2. On the 2d of July, 1863, the claimant, then being in command of the district of Humboldt, California, where his regiment was stationed, was ordered by the commanding general of the Department of the Pacific to report in person at the head-quarters of the department, there to await further orders. The head-quarters of the department were at San Francisco during the war. The order referred to is that annexed to and forming part of the petition.

3. In complance with these orders, the claimant about the 25th of July, 1863, left his regiment, and from about that day to the 1st of August, 1864, was in San Francisco, absent from his regiment, awaiting orders.

4. There is no evidence that during the said period, the claimant received quarters and fuel in kind. There is no evidence that they could have been furnished in kind. The records of the War Department show that most if not all the officers stationed in San Francisco received commutation of quarters and fuel.

5. The commuted value of quarters and fuel in San Francisco, during the said period, for a colonel of infantry, was $1,742.

6. On the 19th of July, 1864, the following order was issued, in pursuance of which the claimant returned to his regiment:--

'HEAD-QUARTERS DEPARTMENT OF THE PACIFIC,

'SAN FRANCISCO, CAL., July 19, 1864.

'I, Colonel Francis J. Lippitt, Second Infantry California Volunteers, will repair to Fort Miller and assume command of his regiment; head-quarters at Fort Miller.

'The Quartermaster's Department will furnish the necessary transportation.



'By command of Major-General McDowell.

'RICHARD C. DUNN,

'Assistant Adjutant-General.'

7. It does not appear that the claimant was ordered to or performed any military duty during the time he was awaiting orders; nor that he reported himself at head-quarters, San Francisco, after his first report on his arrival there.

8. It does not appear that claimant made any demand on the proper officer at San Francisco that quarters and fuel be furnished him.

9. It does not appear that claimant received any military order after being placed on 'awaiting orders,' until the order of July 19, 1864, to repair to his regiment.

10. The claimant, in 1865, presented his claim to the proper department, and pressed its settlement from that day to the 9th of January, 1878, when it was referred by the War Department to this court, by virtue of the following order:--

'To the Honorable the Judges of the Court of Claims:--

'The undersigned, Secretary for the Department of War of the United States, hereby respectfully represents that a claim has been made against said department by Francis J. Lippitt, late colonel Second California Infantry, brevet brigadier-general United States Volunteers, for commutation of fuel and quarters while awaiting further orders at San Francisco, in 1863-64.

'Said claim involving controverted questions of law, and the decision affecting a class of cases, the undersigned hereby, and in accordance with the provisions of sect. 1063 Revised Statutes of the United States, causes said claim, with all the papers pertaining thereto, to be transmitted to the Court of Claims for trial and adjudication.

'GEO. W. McCRARY,

'Secretary of War.

'WAR DEPARTMENT, Jan. 9, 1878.'

Filed in the Court of Claims Jan. 10, 1878.

The Court of Claims held that the action was not barred by the Statute of Limitations, and rendered judgment on the merits for the claimant.

The United States then appealed to this court.

The Attorney-General for the United States.

Mr. James Lowndes, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.