
    EUGENE M. HARMON v. THE UNITED STATES.
    [No. 15544.
    Decided June 18, 1888.]
    
      On the claimants Motion.
    
    The facts on which this motion Was based are given in the decision of the case (ante, p. 132). The claimant now moves for a new trial, in order that he may be heard again on the law.
    I. Where the term of a naval cadet expired in 1883 by limitation of law, and his connection with the Naval Academy was severed by express direction of the Secretary of the Navy, he ceased to be a naval cadet, and can not recover the pay of one.
    II. The Act August 5, 1882 (22 Stat. L., p. 385), directing the discharge of naval cadets upon graduation if they are not required to fill vacancies, is constitutional.
    
      The Reporters’ statement of the case:
    The facts upon which the present motion was grounded weré undisputed, and the only question discussed upon the arg’ument was whether the discharge of a naval cadet who had been duly graduated, and who had complied with all 'the conditions imposed upon him, was legal and effective.
    
      Mr. R. O. Glaughton for the motion:
    1. Was a cadet-midshipinan only a man in the Navy or was he an officer ? The forms of the law are the best evidence of what the law is, and the forms by virtue of which one is constituted a part of the Navy, is the best evidence of the nature of the appointmeut. Here is the appointment of a cadet-midshipman.
    “ United States op America,
    “Navy Department.
    “ By the direction of the President of the United States, you are appointed to the grade of cadet'midshipman, in the United States Navy, from the twenty-fourth day of June, 1877.”
    What did that appointment make the appointee ? A man in the Navy or an officer? Sailors are not appointed under the great seal, by the direction of the President of the United States; they are enlisted, hired by a subaltern, like other laborers.
    
      What is the history of such appointments ? Formerly they were called midshipmen, and before there was a Naval Academy were immediately sent to sea with the professors, who were to teach them what an officer should know. The fact that they were students did not make them auy the less officers. Their whole curriculum was at sea. Cadet-midship men were appointed to the Academy as midshipmen, and then the name was changed to cadet-midship men. Did they then cease to be -officers ? There was absolutely no other change but in name for the purpose of reducing the grade. When they were appointed midshipmen for the purpose of being educated the identical form was used that was subsequently used when the name was changed to cadet-midshipmen. In the regulations for the Navy for the year 1876 the uniform of “ midshipmen a the Naval Academy ” is prescribed.
    If it be suggested that cadet-midshipmen are not included in the list of officers in the Navy, may it not be replied that for the same reason a junior ensign or a second assistant engineer in the Navy is not au officer?
    Cadet-midshipman is but another name for junior midshipman ; he is a midshipman just as much as a junior ensign is an ensign.
    But if they were officers then they were within the protection of the law, which provides that “ No officer in the military or naval service shall in time of peace be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect, or commutation thereof.” If a cadet-midshipman was an officer in the naval service, after being detached from the Academy, his rights under that law were as sacred and inviolable as those of the Admiral himself. That they were officers in the naval service is shown by the mode and form of their appointment, the purpose of their appointment, the orders detaching them from the Naval ¿Academy, and ordering them to duty at sea, the duties they performed, the rank they held, and the uniform they wore.
    2. What is the meaning of the provision in the act of Au.gust5, 1882, which declares that the act shall not deprive any graduate of his appointment; who may complete his six years’ course during the year 1882? It must be given some meaning if possible. If it is mere surplusage or meaningless, then it -can not be used to the disadvantage of the plaintiff. That would be getting something- (to the plaintiff a great deal) out of nothing.
    The time when all who could complete their six-year course in the Calendar for 1882 had passed before the 5th day of August, 1882. The words “who may complete” are prospective. The academic year of 1881 ended in June, 1882. The academic year of 1882 did not end until June, 1883. What year was meant by the act ? If the calendar year was meant, then on the 5th day of August, 1882, when the act was passed, there was not a human being in all the world to whom that provision could apply, who might or could complete the six years’ course in 1882! If the academic year was meant, then the provision was just and the construction reasonable.
    Which-interpretation shall this provision have; that which makes it useless and meaningless, or that which makes it reasonable, useful, and consistent ?
    It must be borne in mind that this provision is found in an appropriation bill, providing for the payment of salaries for the year ending, not on the 31st day of December, 1882, but in-June, 1883.- ■ In a bill which had no reference to calendar years, but was dealing alone with fiscal years, which were identical with academic years. What is the title of such bills ? Why, bills making- provision for the fiscal year of 1882, which ended in June, 1883. In such a bill, when the word year is used, will you give it a construction which makes it meaningless and inoperative, or one which is in harmony with the act and expressive of the purposes for which it was passed?
    3. It is submitted that the proposition made by the Government to those who should enter the Navy as cadet midshipmen and pass the required examinations should be commissioned midshipmen was the term of a contract, and when the plaintiff accepted that proposition the contract was completed. The aggregatio mentium was reached.
    The appointment of the plaintiff to the grade of cadet midshipman was the first act of the Government in the preformance of the contract on its part, the full performance being contingent upon the faithful performance of the contract on the part of the plaintiff. His rights, eo instanti, became vested inchoate, if you please, but none the less vested; and with the greatest respect, but with the profoundest conviction, it is submitted that being so vested, nothing but misconduct on his part or usurpation on the part of the Government could divest them. This contract was complete upon the acceptance of the appointment, without the engagement to serve for eight years, unless sooner discharged by competent authority. The law constituted'the contract; the regulation of the Department could not abrogate the law.
    The contract was not unilateral. The proviso “ unless sooner discharged by competent authority ” is not a waiver of the rights of the claimant under the contract, and if it were, it would be nudum pactum, there being no consideration therefor.
    What does that proviso mean 9 It was not for the purpose of giving the Government the right to discharge the plaintiff, without his consent, but for purpose of providing for the release from the eight years’ service on his application. The stipulation bound him to serve for eight years, unless he was released from that obligation by competent authority. What necessity was there for that stipulation on the Government side of the-contract, if the Government had the right to discharge him at pleasure 9 The proviso is incongruous, read in that light.
    Why provide that at the end of the four years’ course they might be discharged on their application if the Government had the right to discharge them at will 1
    
    There is no analogy between this case and that of the reduction of the salaries of officers. It is the law that Congress provides annually for the expenses of the Government, and every officer accepts his appointment with the knowledge that this is the law.
    4. The court felt constrained by what was said by the Supreme Court of the United States, in cases in which the plaintiff was neither party nor privy, in other words, by a judgment “ inter alios aeta,” in which proceedings the question as to the right of the plaintiff was not and legally could nod be considered. The only question in these cases was what application the act of August 5 had to cadet engineers, not what application it had to cadet midshipmen. Neither the parties nor the pleadings presented any such questions, and if the court expressed an opinion upon questions not involved in these cases, it was binding neither upon this court nor the Supreme Court nor the plaintiff. But if this court decides this case upon such dicta, inasmuch as the plaintiff has no right of appeal, he will be deprived of his rights without a hearing,, without due process of law, and the Supreme Court may have committed an error without having the opportunity of correcting it.
    In the argument of this case it was contended that since the act of 1874 there has been no difference in the course of study or the examination and graduation of these two classes of cadets under the law, whatever may have been the practice. The act that provided for the appointment of cadet engineers provides that they should be eligible to the appointment of second assistant engineers upon the recommendation of the Academic Board, and when the course was made four years at the Academy and two at sea, the law required that the examination which would make them eligible to the appointment of second assistant engineer should be an examination by the Academic Board, at the Academy.
    Subsequently it was enacted that having become eligible to such appointment under the law as it then stood, they should not be appointed until after examination by another board. Considering the nature of the duties of such officers it was wise that practical engineers should pass upon their practical efficiency, however proficient theoretically the Academic Board had found them to be.
    
      Mr. Séber J. May (with whom was Mr. Assistant Attorney-General Soward) opposed.
   Weldon, J.,

delivered the opinion of the court:

The claim made by the petition is for compensation as midshipman on waiting orders, and ensign from the 30th of June, 1883, until the 1st day of January, 1887, amounting to the sum of $1,655.47, after deducting the amount of $950, paid by the defendants.

The case was tried at the present term, and a judgment dismissing the petition was entered. The claimant now makes a motion for a new trial, in order that he may have an opportunity to be heard again on the merits, with a view of reversing the former judgment of the court. The motion has been ably and elaborately argued by the counsel for the petitioner and the attorney for the Government, which has given to the claimant all the advantage he could derive from a retrial of the cause. In the consideration of this motion the court has fully examined all tlie questions presented by the record, aided by the very able re-argument of counsel for claimant. The facts are briefly as follows:

The petitioner entered the Naval Academy in September, 1877, pursued a course of study for four years, passed a successful examination, and at the end of said period received from the Academic Board a certificate as follows:

“ This certifies that Oadct-Midshipman Eugene M. Harmon has completed the prescribed coarse of study at the United States Naval Academy, and has successfully passed the required examination before the academic board, preparatory to the two .years’ course afloat.
‘‘June 10,1881.”

On the 2d of June, 1881, he was detached from the Naval Academy, and on the 25th of August was ordered to sea. On the 10th of March, 1883, he was detached from the United States flag-ship, ordered to proceed to Annapolis and report to the Superintendent of the Naval Academy for examination. In pursuance to said order, he was examined on the 15th of June, 1883, and received the following certificate:

“ We, the academic board of the United States Naval Academy, having thoroughly examined Naval Cadet Eugene M. Harmon on all the subjects, theoretical and practical, taught at this institution, and having found him proficient in each, do hereby, in conformity with the law, gi ant to him this certificate of graduation. .
“ June 15,1883.”

On the 23d of said month an order was issued detaching claimant from the Naval Academy, directing him to await orders; and on the 26th of June following the Secretary of the Navy', after reciting his graduation, and there being no vacancy in the service, discharged him, with one year’s sea pay from the 30th of June, under the provisions of the act approved August 5,1882.

The last-named order is as follows:

“Sir: Having successfully completed your six years’ course at the United States Naval Academy, and having been given a certificate of graduation by the Academic Board, but not being required to fill any vacancy in the service happening during the year preceding your graduation, you are hereby discharged from the 30th of June, 1883, with one year’s sea pay, as prescribed by law for cadet-midshipmen, in accordance with the provisions of the act approved August 5th, 1882.
Respectfully,
“W. E. CHANDLER,
8eo’y of Navy.
“ Naval Cadet Etjg-ene M. Harmon,
Navy, Annapolis, Maryland.”

The contention on the part of the claimant is stated in a paragraph of his counsel’s brief as follows:

“The question is simply this: What is the pay of a cadet-midshipman for the time between his graduation and receiving’ his appointment as midshipman '? Will the accidental or intentional delay in making the appointment deprive the claimant of that which by the law and the contract he is entitled to re-seive I ”

The form of the statement ignores the existence of the statute of August 5, 1882, or, by implication, assumes that so far as the rights of the claimant are concerned they are unaffected by the provisions of that law. If the statute conferred the power assumed by the Secretary of the Navy, then the claimant was not in the legal status of a cadet-midshipman, but was disconnected with the naval service, and therefore not entitled to any pay. The twelfth section of the Act July 15, 1870 (16 Stat. L., p. 334), provided:

“When cadet-midshipmen shall have passed successfully the graduating examination at said Academy, they shall receive appointment as midshipmen, ranking according to merit, and may be promoted to the grade of ensign as vacancies in the number allowed by law in that grade may occur.”

Section 1520 of the Revised Statutes provides:

“ The academic course of midshipmen shall be six years.”

The-term of six years which the claimant was to serve in the Naval Academy expired on the 23d day of June, 1883, by limitation of law, and by the express direction of the Secretary of the Navy the claimant became disconnected with the Naval Academy.

Section 1521 provides that—

“When cadet-midshipmen shall have passed successfully the graduating examination at the Academy they shall have appointments as midshipmen, and shall take rank according to their proficiency, as shown by the order of merit at the date of graduation.”

As provided by these sections, the claimant would be entitled to an apj)ointment by the President, and upon such appointment he would be entitled to whatever the law attaches to the position as an emolument.

At the time the act of 1882 was passed the rights of the midshipmen were determined by section 1521 of the Bevised Statutes, but after the passage of that act, the rights of those intended to be affected by it became and were very different. In the opinion of the court in the decision of this case it is said:

“The number of men in the Army and Navy is dependent upon the will of Congress, and in the legislation incident to that question the highest rights of sovereignty are exercised by the Government.”

If the act of 1882 is within the constitutional power of Congress, the action of the Secretary being.in strict accordance to said act, the rights of the claimant become subject to that act, and the discharge of the claimant was in strict pursuance of legal power. Although the Supreme Court has not directly passed on the constitutionality of said act, it has been referred to in such a way as that the constitutionality of the act may arse from implication.

Holding as we must that said statute is constitutional, it follows that we must adhere to the law upon which the rights of the claimant were adjudicated, and overrule the motion for a new trial.  