The Adjutant and Inspector General of the Army of the United
States was not entitled to double rations from 39 September, 1818,
to 31 May, 1821.
The President of the United States has a discretionary power to
allow such additional number of rations to officers commanding at
separate posts as he may think just, having respect to the special
circumstances of each post. The law granting this authority is not
imperative, and in the exercise of his discretion, the President
may allow or refuse to allow additional rations as in his opinion
he may deem proper.
The Secretary of War, as the legitimate organ of the President
under a general authority from him, may exercise the power and make
the allowance to officers having a separate command.
No officer is entitled to the additional allowance unless he be
a commandant at a separate post, and then the claim must be
sanctioned by the Executive. The allowance cannot be made to more
than one officer at the same station.
In the discharge of his ordinary duties, the Adjutant and
Inspector General has no distinct command; his duties consist in
details of service, and not in active military command.
An officer may be said to command at a separate post when he is
out of the reach of the orders of the commander-in-chief or of a
superior officer in command in the neighborhood. He must then issue
the necessary orders to the troops under his command, it being
impossible to receive them from a superior officer.
The general order of the War Department of 18 March, 1818,
directing double rations to be allowed to officers commanding
military departments, is construed to relate to the
geographical sections of country into which the two divisions of
the army are divided and which were denominated "departments," and
intended to designate the extent of actual command given to the
officer commanding each department; it does hot relate to the law
of 3 March, 1813, "for the better organization of the General Staff
of the Army."
All the material facts of the case are stated in the opinion of
the Court; which was delivered by MR. JUSTICE DUVAL.
An action was commenced in the circuit court by the United
States against the plaintiff in error to recover the sum of
$2,337.60 which he had received from Mr. Leslie, the paymaster,
then stationed at the seat of government, on a claim for double
rations due him in his capacity of Adjutant and Inspector General
of the Army of the United States from
Page 26 U. S. 294
30 September, 1818, to 31 May, 1821. On the settlement of the
account of the paymaster, this item was disallowed by the second
Auditor, who considered it as wrongfully paid, and the amount was
afterwards directed to be charged to the personal account of
General Parker.
The office of Adjutant and Inspector General of the Army, with
the rank, pay, and emoluments of a Brigadier General, was created
by the Act of March 3, 1813. The plaintiff in error was appointed
to that office, and his commission bears date on 1 May, 1816, with
the rank of Brigadier General, from 22 November, 1814.
The pay and emoluments of the officers of the army are fixed by
the Act of 16 March, 1802, and the Act of 12 April, 1808. By the
fifth section of the first mentioned act it is provided that the
commanding officers of each separate post shall be entitled to such
additional number of rations as the President of the United States
shall from time to time direct, having respect to the special
circumstances of each post. Under this authority, the President
has, at various times, designated military posts and stations and
allowed double rations to the commanding officers, and in the case
of General Wilkinson, when stationed at New Orleans and commanding
there in quality of a commanding officer at a separate post, he
allowed that officer treble rations. It appears by the record and
documents referred to in this case that on 25 August, 1812, the
President ordered that generals commanding separate armies should
receive double rations.
In February, 1814, an order was issued by the War Department on
the subject of double rations, of which the following is an
extract:
"It is ordered, that general or other officers commanding
districts shall, while so doing, receive double rations, which will
supersede all other grants of double rations at posts within the
district."
On 6 March, 1816, a general order was issued in the words
following:
"Generals commanding Divisions, officers commanding military
departments, and all officers while in the command of permanent
posts and garrisons separate from the stations of commandants of
departments which subject them to the additional expense of
independent commands are allowed double rations. No more than one
officer can be entitled to double rations at the same station."
The Adjutant and Inspector General performed the duties of his
office from November, 1814, and charged the compensation as allowed
by law until the year 1816, when a difficulty arose on the subject
of his fuel and quarters from the circumstance of there being no
disbursing office in the Quartermaster's Department at the seat of
government, and from the regulations
Page 26 U. S. 295
of the War Department, then in force, prohibiting an allowance
in money, to be made to officers in lieu of these emoluments. The
Secretary of War then issued the following order: "A commutation of
double rations, is allowed to the Adjutant and Inspector General,
in lieu of fuel and quarters."
Under this authority, he claimed and was allowed double rations
from November, 1814, refunding to the government the allowance he
had received for fuel and quarters from the time of his acceptance
until the date of the above order. He continued to receive double
rations, making no charge for fuel and quarters until an order was
issued by the Secretary of War on 10 August, 1818, to the following
effect.
"The reason for the allowance to the Chief of the Engineers and
to the Adjutant and Inspector General in lieu of fuel and quarters,
no longer existing, since the establishment of the Quartermaster's
Department, at the termination of the present quarter, such
allowance will cease, and the Quartermaster General will, on
requisition, furnish them with fuel and quarters agreeably to their
respective ranks."
The commutation of double rations ceased accordingly, and the
Adjutant and Inspector General continued to charge and receive
single rations only from 1 October, 1818, to 31 May, 1821, when the
office was abolished.
The defendant in the court below, now plaintiff in error, in
support of his claim, produced a certificate from Richard Cutts,
Second Comptroller of the Treasury,
"that the senior officer of the Engineer Department, stationed
at Washington, has charged and been allowed double rations since 1
January, 1818. The senior officers of the Quartermaster's,
Subsistence, and Ordnance Departments, have charged and been
allowed double rations since 27 July, 1821, and Major General Brown
has charged and been allowed double rations since 1 June, 1821,
when he was stationed in this city."
And also the following regulations: the regulation and general
order of 27 July, 1821, issued by the War Department, allowing to
the Quartermaster General, Commissary General of Subsistence, the
Colonel of Engineers, and the Chief of the Ordnance Department
(while stationed at the seat of government) double rations from the
date of the said order.
The regulations or general order duly issued from the War
Department, dated 31 May, 1821, addressed to the defendant as
Adjutant and Inspector General, directing him, among other things,
to hand over the records and files of his office to Major General
Brown, on the next day, being 1 June, 1821, the said Major General
having from the time he had assumed command, and had relieved the
said Adjutant and Inspector General at the seat of government
pursuant to the
Page 26 U. S. 296
last mentioned order, been allowed and paid double rations, as
certified by the second comptroller, which regulation or general
order is in the following words:
"The Adjutant General, under the law of 2 March last, being
attached to the Major General commanding the army, and now absent,
you will tomorrow pass over the records and files of your office to
Major General Brown, and will assume the duties of Paymaster
General. Major General Brown has been advised of this order, and
Colonel Towson will be instructed to hand over the papers and
records of the pay department to you."
That the Brigadiers General of the Army of the United States
have all been regularly allowed double rations since the said
general order and regulation of 6 March, 1816. That the defendant
continued at the head of the Department of Adjutant and Inspector
General, and stationed at the seat of government, from the time of
his appointment and commission as such until 31 May, 1821, and
until he was relieved by Major General Brown as before
mentioned.
The defendant then proved, by Thomas S. Jessup, Quartermaster
General, that in his opinion and according to the general usage of
the army, the Department of Adjutant and Inspector General was a
military department, and that the defendant, whilst exercising that
office, was commandant of a military department, and as such, was
subject to the additional expense of an independent command.
The declaration in this cause is founded on a transcript from
the Treasury, certified in the usual form, and contained a count
for money had and received, and other counts not necessary to be
mentioned; issue was joined on the plea of
nonassumpsit,
and by agreement of counsel, a verdict for the United States was
taken for the sum claimed, subject to the opinion of the court upon
the laws of the United States relative to the pay and emoluments of
the officers of the army, and the regulations and orders of the
executive department, issued in pursuance of those laws. The court,
on consideration, gave judgment in favor of the United States, and
the cause is now before this Court by writ of error for their
decision.
The claim of the plaintiff in error to double rations, as
charged, rests altogether upon a correct construction of the 5th
section of the Act of 16 March, 1802, and of the regulations and
orders of the Executive Department, issued in pursuance of that
section. The President of the United States has a discretionary
power to allow such additional number of rations to officers
commanding at separate posts, as he may think just, having respect
to the special circumstances of each post. The law granting this
authority is not imperative, and in the exercise of his discretion,
the President may allow or
Page 26 U. S. 297
refuse to allow additional rations as in his opinion he may deem
just.
The reason of the authority to grant the allowance is obvious.
By an independent command at a separate post, the officer is
subject to additional expense, and an increase of duty. An officer
may be said to command at a separate post when he is out of the
reach of the orders of the Commander-in-Chief or of a superior
officer, in command in the neighborhood. He must then issue the
necessary orders to the troops under his command, it being
impracticable to receive them from a superior officer. His
authority is the source from which they must flow.
There can be no controversy about additional rations if the
President makes the allowance. He may issue the order himself or it
may be done by the Secretary of War with his approbation. The
Secretary of War, as the legitimate organ of the President, under a
general authority from him, may exercise the power, and make the
allowance to officers having a separate command. The language of
the law is plain and unambiguous. No officer is entitled to the
additional allowance unless he be a commandant at a separate post,
and then the claim must be sanctioned by the Executive. The
allowance cannot be made to more than one officer at the same
station.
It is not contended in the case under consideration that the
grant was made by the President, but the plaintiff in error claims
it under the orders which have been recited and which are spread
upon the record, and because officers of equal rank and in his
opinion similarly circumstanced have received the additional
allowance. Double rations form no part of the regular and legal
emoluments of a Brigadier General, and can only be claimed under
circumstances before enumerated. The plaintiff in error seems to
rely with more confidence, on the order of 6 March, 1816, taken in
connection with the opinion of General Jessup. That order directs
the additional allowance to be made to generals commanding
divisions, and to officers commanding military departments,
&c., and General Jessup was of opinion that, according to the
general usage of the army, the Department of Adjutant and Inspector
General, was a military department, and that whilst exercising that
office, he was commandant of a military department; and as such
subject to the expense of an independent command.
The record contains no evidence that the Adjutant and Inspector
General was ever ordered to an independent or separate command. In
the discharge of his ordinary duties, he has no distinct command;
his duties consist in details of service, and not in active
military command. The order of
Page 26 U. S. 298
16 March, 1816, directing double rations to be allowed to
officers commanding military departments, is construed to relate to
the geographical sections of country, into which the two divisions
of the army are divided, and which were denominated departments and
intended to designate the extent of actual command given to the
officer commanding each department, and that it does not relate to
the law of 3 March, 1813, for the better organization of the
general staff of the army. This appears to have been the
construction given to the order by the War Department, as none of
the staff officers created by that act, with the exception of the
plaintiff in error, ever made a claim for double rations, and the
claim under consideration was disallowed by the accounting officers
of the War Department.
During the time the Adjutant and Inspector General was stationed
at the seat of government, comprehending the space for which double
rations are claimed, it does not appear that there was any
recognized commanding officer. The staff officers, then stationed
at the seat of government, were subject to the authority of the
Secretary of War, and under his direct and exclusive control.
It is the opinion of the Court that the claim of the plaintiff
in error is not sanctioned by the Act of 16 March, 1802, nor by the
regulations and orders of the executive department, issued in
pursuance of that law.
The judgment of the circuit court is affirmed with
costs.