United States v. Williamson

APPEAL from the Court of Claims. The case was thus:

An act of March 3d, 1863, relating to the government of the army, enacts—

'That any officer absent from duty with leave, except for sickness or wounds, shall, during his absence, receive half of the pay and allowances prescribed by law and no more.'This statute being in force, Williamson was commissioned as a captain in the Forty-second Infantry to rank from January 22d, 1867; and served as captain in that regiment until it was consolidated with the Sixth Infantry. This consolidation was effected by General Orders Nos. 16 and 17, series of 1869, from headquarters of the army.

General Order No. 16 was issued in compliance with the second section of an act of Congress of March 3d, 1869, by which the infantry regiments were required to be consolidated, and the whole number reduced to twenty-five regiments.

This order, after requiring the consolidation of infantry regiments as directed in the act of Congress, further directed that the senior company officers of each grade present for duty with any two regiments to be consolidated and fit for active service, would be the officers of the consolidated regiment. The supernumerary officers were to be ordered to their homes to await further orders.

The o der further provided that all vacancies that might thereafter occur in the twenty-five infantry regiments would be filled by assignment of the senior officers of the same grade from the list of officers awaiting orders.

General Order No. 17 provided that the company officers would be assigned as directed in General Order No. 16, from the senior officers present and fit for active service with any two regiments consolidated; but 'should any of the officers so assigned'-said the order-'prefer to await orders, the senior officers of the grade desiring service with their regiments may be substituted for them.'

It provided further:

'No applications can be entertained from officers 'awaiting orders,' or on the 'retired list,' for special duty. If their services are required they will be detailed without applying.'

After the consolidation of the Forty-second Regiment with the Sixth, Williamson, on the 22d of April, 1869, was regularly assigned as captain of company H, in the Sixth Consolidated Regiment, and on the 20th of May following he joined his company. On the 29th of the same month he was regularly trnasferred from that company to company A, vice Captain Bailey, unfit for active service.

It did not appear that Captain Williamson ever joined company A, to which he was transferred. Soon after his transfer, being then at Fort Gibson, Cherokee Nation, he addressed, May 3d, 1869, a note to the Adjutant-General of the Department of Missouri-the proper department for him to address-by which, 'in accordance with paragraph 3, General Order No. 17, current series, headquarters of the army,' he 'elected to be placed on waiting orders.'

On the 21st of June, 1869, the Adjutant-General responded to the claimant's request, as follows:

'By authority of the General of the Army, Captain Williamson, Sixth United States Infantry, is, at his request, relieved from duty in this department, and will proceed to his home and await orders, reporting thence by letter to the Adjutant-General of the Army, and to these headquarters.'

Captain Williamson was mustered out of service on the 31st of December, 1870.

From the 15th of December, 1869, to the 31st December, 1870, he received at the rate of $165 per month, the rate fixed by Congress as the pay of a captain of infantry, less than full pay by $690.11. For this sum of $690.11 he brought suit against the United States in the Court of Claims.

The court awarded to him the amount claimed, and the United States appealed to this court.

Mr. G. H. Williams, Attorney-General, and Mr. John Goforth, Assistant Attorney-General, for the United States:

It was at his own request that Captain Williamson was relieved from duty, i. e., from command of a company in the Sixth Regiment of Infantry, and from that time up to December 31st, 1870, the date when he was mustered out of service, he was absent from duty, ceasing to perform any military service or to actively exercise the functions or authority of an officer of the army of the United States.

He was absent from duty with leave, being neither sick nor wounded; whether he technically asked for a leave of absence eo nomine, or whether, within the spirit of the law, he elected to be placed on waiting orders. The act itself merely says, 'absent from duty with leave;' absent-not necessarily by means of 'a leave of absence,' so called, but absent from duty with leave, howsoever that absence from duty was accomplished, if according to law and the regulations. There can be but two classes of officers under this head: those who are actively performing military duties, i. e., in charge of some military character are withheld by whom all functions of a military character are withheld by the operation of absence from duty. Here there was an officer placed in command of a company of infantry-that is to say, ordered to the performance of military service-who elected to be placed on waiting orders, i. e., to be absent from all such duties, and he now demands the same pay and allowances when his request is acceded to that he would have been entitled to had he been actually and actively on duty. The act of March 3d, 1863, says that in case of absence he shall receive 'but half of the pay and allowances prescribed by law, and no more,' and, as he has received these, he has no further claim on the United States.

Mr. H. E. Paine, contra.

Mr. Justice HUNT delivered the opinion of the court.