US SUPREME COURT DECISIONS

An officer of the army who is ordered, even on his own request, to proceed to a particular place, including his home, and "there await orders," reporting thence by letter to the Adjutant-General of the Army and to the headquarters of the department to which he then belongs, is not an officer "absent from duty with leave" within the Act of Congress of March 3, 1863, which enacts that

"Any officer absent from duty with leave, except from sickness or wounds, shall during his absence receive half of the pay and allowances prescribed by law, and no more."

Such an officer is waiting orders in pursuance of law, but not absent from duty on leave.

An act of March 3d, 1863, [Footnote 1] 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. "

Page 90 U. S. 412

This statute being in force, Williamson was commissioned as a captain in the Forty-second Infantry to rank from January 22, 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 3, 1869, [Footnote 2] 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 order 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 chanrobles.com-red

Page 90 U. S. 413

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 transferred 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 3, 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. chanrobles.com-red

Page 90 U. S. 414