Curry v. United States

delivered the opinion of the court:

This is a suit by a clerk in the Quartermaster’s Department of the Army to recover the sum of $596.75 for reimbursement of expenses incurred by him while on duty at Washington, D. C., and Philadelphia, Pa., under orders of March 23 and April 8,1909, assigning him to duty in connection with the settlement of the accounts of Maj. Baker, as chief quartermaster, Army of Cuban Pacification. The plaintiff had theretofore been on duty at Habana, Cuba, with Maj. Baker, and the Quartermaster General directed his transfer to Washington, D. C., for such time as might be required in connection with the settlement of Maj. Baker’s account as such chief quartermaster. The order further directed that on completion of this duty at Washington he should be transferred to St. Louis, Mo., for duty under the. depot quartermaster there. On his arrival in Washington, April 5, 1909, the plaintiff reported from day to day to Maj. Baker for duty, until April 8, 1909, when an order was issued by the Quartermaster General to Maj. Baker, directing him to order the plaintiff to proceed from Washington, D. C., to Philadelphia, Pa., for duty in connection with the settlement of his (Maj. Baker’s) accounts, and upon completion of this duty to be transferred to St. Louis, Mo., for duty under the depot quartermaster at that place. This duty was designated as temporary duty in the order and it also directed that the necessary transportation and sleeping-car accommodations to Philadelphia be furnished the plaintiff, but made no provision for the transportation of baggage. His duties at Philadelphia related solely to the settlement of Maj. Baker’s accounts. The plaintiff remained on said duty from April 9, 1909, to September 2, 1909, when he went to St. Louis, Mo., for duty under the quartermaster there, in compliance with his orders. Transportation and sleeping-car accommodations were furnished him on the lat*397ter trip, but no transportation for baggage. During a portion of the time while the plaintiff was on duty at Philadelphia he was allowed for his actual expenses, but these were afterwards refused by the accounting officers, and the amount already allowed him was collected back. The total amount of the expenses of the plaintiff while on such duty at Washington and Philadelphia was $596.75, and this suit is brought to recover that sum.

At the time of the performance of this service the Army Eegulations provided as follows:

“744. Eeimbursement of actual expenses when traveling under competent orders will be allowed, under the following heads, to civilians in the employ of any branch of the military service, excepting the expert accountant of the Inspector General’s Department, paymasters’ clerks, and those mentioned in paragraph 745, viz: * * *

“ 5. Cost of meals and lodgings, including baths, tips, and laundry work, not to exceed $4.50 a day, while on duty at places designated in the orders for the performance of temporary duty.”

During a portion of the service of the plaintiff the regulations provided for an allowance of $3 per day, and during such period his claim is on that basis.

It will be seen from the foregoing statements that the only question in the case is whether the plaintiff was on temporary duty while at Washington and Philadelphia within the meaning of that term in the Army Eegulations above quoted. If he was, he is entitled to recover for his actual expenses during such service; if he was not, he has no claim.

An examination of the two orders transferring the plaintiff, as they appear in Finding III, will show that the plaintiff was first assigned to duty at Washington “ for such time as required in connection with the settlement of” the accounts of Maj. Baker, and was afterwards assigned to duty at Philadelphia “for temporary duty in connection with the settlement” of the accounts of the same officer. It will thus appear that by the terms of both orders the duty performed by the plaintiff was designated as “temporary duty ” in one case and substantially so in the other.

*398■It has been repeatedly held, however, by this court that the terms of an order assigning to a particular service can not classify the service actually performed, but that the facts in each case must be considered, and the paramount service performed must determine the basis on which to place the right of pay. It is unnecessary to say that that principle obtains in this case. In other words, in each case the character of the service is a question of fact to be determined by the court. (McGowan v. United States, 36 C. Cls., 63; Leach v. United States, 44 C. Cls., 132; Doyle v. United States, 46 C. Cls., 181.)

The word “ temporary ” is defined in the Standard Dictionary to mean: “(l)For a short time only; (2) not permanent.” We think the service performed by the plaintiff under orders at Philadelphia and Washington comes fairly within both of these definitions. As compared with the length of service at a stated post usually performed by clerks in the Quartermaster’s Department, certainly less than five months is a short time. The second definition, however, is the one which is particularly applicable to this case; i. e., a service which is not permanent in character. A service of any kind can only be said to be permanent in character when it is to continue for a definite period of considerable extent, or an indefinite period in the discharge of all the duties generally belonging to such service. To be sure, any service may be terminated unexpectedly the next day after begun, though it was anticipated it would continue for years. On the other hand, a temporary service may continue for some time. The question to be asked is: Is it a fixed, permanent service, or is it to be terminated upon the performance of a particular piece of work? The plaintiff was ordered to Washington and Philadelphia to finish one job only belonging generally to the duties of his office, and the same order provided that when he had finished that job he should proceed to another place, presumably for the discharge there of general duties belonging to his office, as no special duties were designated.

While on duty at either place, if the plaintiff had been asked as to the character of his duties as to time of employ*399ment, can it be doubted tliat his natural and truthful answer would have been that he was there only temporarily for the performance of one particular piece of work, and when that was finished he was to go to another city for permanent work ?

The reason for the making of the regulation quoted is evident. If an officer is placed on permanent duty in any place he can make such arrangements as will enable him to live more economically and at the same time more comfortably than he can if he is on duty which is temporary only. In the latter case he can not establish a home, but must take up temporary quarters at a hotel, which will generally use up about all of his salary, as was true in the case of the plaintiff.

It follows from the foregoing that the plaintiff is entitled to a judgment for his actual expenses as provided in the Army Regulations quoted, which are found to be $596.75, and judgment in that sum in his favor is ordered.

dissenting:

The plaintiff, George A. Curry, brought this suit to recover the sum of $596.15, which amount, he avers, was expended by him for meals, lodgings, etc., while on duty at Washington, D. C., and Philadelphia, Pa., in connection with the settlement of the accounts of Maj. Chauncey B. Baker, chief quartermaster, Army of Cuban Pacification.

Prior to March 23, 1909, plaintiff was a clerk, at large in the Quartermaster’s Department, United States Army, and was on duty in the office of the chief quartermaster, Army of Cuban Pacification, Havana., Cuba. On said date an order was issued from the Quartermaster General’s Office to Maj. Baker directing his transfer to the United States, and on April 1, 1909, plaintiff was also transferred from Havana, Cuba, to Washington, D. C., where he arrived April 5, 1909, and upon his arrival reported to Maj. Chauncey B. Baker for duty under said order. On April 8, 1909, an additional order was issued by the Quartermaster General’s Office to *400Maj. Baker, who had been ordered to Philadelphia, Pa., as depot quartermaster in addition to his special duties in closing up his Cuban accounts.

This latter order directed plaintiff to proceed to Philadelphia, Pa., “ for temporary duty ” in connection with the settlement of the accounts of Maj. C. A. Baker, who had formerly been the chief quartermaster at Havana, Cuba. In obedience to this command plaintiff proceeded to Philadelphia, Pa., on or about April 13, 1909, and entered immediately upon the duties assigned to him and continued to discharge those duties until September 2, 1909, when he was assigned to duty in the office of the depot quartermaster at St. Louis, Mo.

Under the order assigning plaintiff to so-called “temporary duty ” and by virtue of the Army Begulations quoted in the findings, plaintiff submitted monthly accounts for reimbursement of expenses for meals, lodgings, and laundry from April 6, 1909, to September 2, 1909. It appears from the findings that these accounts from April 5 to June 30, 1909, were approved and paid by Maj. Chauncey B. Baker, quartermaster, United States Army, which action was approved by the Quartermaster General. The accounts, as approved, were forwarded to the Auditor for the War Department, who audited and approved them for the sum of $311.75.

After plaintiff completed his duties at Philadelphia, Pa., September 2, 1909, he submitted an account covering meals, lodging, and laundry from July 1, 1909, to September 2, 1909, amounting to $285, which was approved by Maj. Baker, quartermaster at Philadelphia, Pa.; but the Quartermaster General refused to approve this account, for the reason that plaintiff was not on “ temporary duty ” at Philadelphia. Plaintiff thereupon appealed to the Auditor for the War Department for payment of said amount. The auditor allowed $237 of the account, but disallowed the sum of $48, assigning as a reason that no more than $2.50 per day could be allowed for expenses, because said amount was the average daily expenses of his former account. The plaintiff *401thereupon appealed to the Comptroller of the Treasury, who reversed the action of the auditor and disallowed the entire claim. The comptroller thereupon directed the reopening of the accounts of Maj. Baker, for the period from April 6, 1909, to June 30, 1909, and disallowed $311.75 which had previously been paid to plaintiff and which he was required by the accounting officers of the Treasury to refund, which was done by him under protest. None of the above facts is contested by the^Government.

The only question in the case is whether the duty performed by the plaintiff was “ temporary duty.” Prima facie it was temporary duty, because it is so defined in the official order to the plaintiff. But the character of a duty must be determined by the facts. The courts have held that they may go behind the orders of executive officers of departments of the Government and determine from the facts what the character of a duty is. (Leach's case, 44 C. Cls., 132.)

In this case the Quartermaster General placed the plaintiff on temporary duty in his order of April 8, 1909. On July 23, 1909, the same officer, reviewing the case, addressed Maj. Baker, depot quartermaster, Philadelphia, Pa., an official letter in which he declined to allow the incidental expense account of plaintiff, and adding, in substance, that his temporary hire was not intended to carry with it reimbursement of expenses while engaged in such service, and stating further that he was receiving full pay for his grade and was at his regular station until he was transferred elsewhere.

The contentions of the defendants, briefly stated, are that plaintiff was employed as a clerk and accountant in the Quartermaster’s Department, .United States Army, at large, on duty in the office of Maj. Chauncey B. Baker, chief quar-master, Army of Cuban Pacification, at Havana, Cuba; that on or about March 23, 1909, said chief quartermaster having completed his work in Cuba, was ordered to Washington, D. C.; that plaintiff, being one of his clerks, was also ordered to return to Washington, and his transportation in kind was furnished; that shortly after their return to Washington, Quartermaster Baker was assigned to duty as depot quarter*402master at Philadelphia, Pa.; that plaintiff was ordered to accompany him to said station and remain there as long as he might be needed to assist said quartermaster in closing his Cuban accounts, and when this work was completed ho was to proceed to St. Louis, Mo., under his original order, there to enter upon clerical duties in the depot quartermaster’s office in that city. It is further claimed by the defendants that plaintiff was a regular employee of the United States, assigned to duty in the Quartermaster’s Department, and that all of the duties performed by him Avere strictly confined to that department; that when he left Cuba to return to the United States for the purpose of aiding Quartermaster Baker in the settlement of his accounts Ills place of employment was wherever those accounts were. While said quartermaster was at Washington plaintiff’s station and place of employment was Washington, and when it was changed to Philadelphia that city became the place of bis employment and station. His duty, therefore, was temporary only in the sense that his employment for the purpose indicated was temporary in charcter. At the time he was employed for this particular work he had no other station. Temporary duty and temporary employment are two. different things. “.Temporary duty ” under the Army Regulations, which are set out in Finding II, presupposes, I think, a permanent station and duty from which an employee is absent. At the time of this employment plaintiff had no other permanent station; consequently he could not ■be classed as cn temporary duty when he Avas then engaged in the only work for which he was at that time employed.

My conclusion, therefore, is, as a question of fact, that plaintiff’s duty at Washington and Philadelphia was not the “ temporary duty ” contemplated by the Army Regulations quoted in the findings of fact, and necessarily the petition should be dismissed, because I can see no reason • why the GoA'emment should pay the living expenses of a regular departmental clerk at Washington or Philadelphia any more than it should pay such expenses at Haxoxna, Cuba, or at St. Louis, Mo.