
    Charles M. Blake v. The United States.
    
      On the Proofs. ,
    
    
      A chaplain-in the Army suffering from physical disease and menial prostration-tenders Ms resignation. Kis commanding officer retains it for a lime, considers the question of sanity, mul transmits the resignation ivith a recommendation that it he accepted. It is accepted, and a successor appointed. Subsequently it appears that the chaplain is insane. Ultimately he becomes, of sound mind and is restored to the Army. He now brings his action to recover his pay during the interval, on the ground that his resignation-while insane was inoperative.
    
    
      I.Where an officer in. tlie Army suffering from physical disease and mental depression tenders his resignation, and the commanding officer’s attention is called to Ms possible insanity and he retains the resignation for a time and then transmits it with a recommendation that it he accepted, it must he presumed that he passed upon the question of the resigning officer’s sanity.
    II.Where an officer suffering from physical disease and mental depression tenders his resignation, and the question of Ms being of sane mind is passed upon by Ms commanding officer, and it is by Mm determined that he is of sane mind, this court cannot re-examine the question and find that he was not of sane mind and incompetent to resign.
    III.The case of an officer who resigns while of unsound mind is analogous to the position of a person of unsound mind in an ordinary civil tribunal. If the President acts on the resignation and appoints a. successor, who takes the office, the loss must fall on the officer who caused it, notwithstanding his insanity.
    
      The Reporters’ statement of tbe case-:
    Tbe following are tbe facts as found by tbe court:
    I. On tbe 24tb of December, 1868, tbe claimant was a post-cbaplain in tbe Army of tbe United States, and was stationed at Camp McDowell, in tbe Territory of Arizona.
    II. For some time prior to tbe said 24th day of December tbe claimant bad been suffering from physical disease and from mental prostration and was then so suffering. In tbe light of subsequent events, there can be no doubt but that be was then insane. He was at times irritable and incoherent, and manifested egoism and suspicion of bis superiors; but it was not until after tbe said 24th day of December that these symptoms developed to such an extent as necessarily to induce persons who came in contact with him to believe that be was mentally incapable of acting with sound reasoning purpose.
    III. On tbe said 24th day of December be addressed tbe following letter, through tbe post-adjutant of tbe camp, to tbe Secretary of War:
    “Camp McDowell, A. T.,
    “ Dec. 2tíh, 1868.
    “ Sir : I have tbe honor to state that my present situation here, sick and in arrest without trial for eight weeks past, connects itself, not by analogy alone, but by direct logical sequence, with all my past military history.
    “ It does so more especially with that of nearly four years ago in tbe Department of tbe Cuihberland at Chattanooga, Tenn.. And Maj. Gen. Geo. EL Thomas, U. S. A., owes it to himself, to me and family, to the military service, and to the country, to show why I was so foully and unjustly treated on that occasion. But Maj. Gen. L. Thomas, Adj’t General, U. S. A., is also under similar obligations to show why it was permitted; and why he rudely reprobated in me and my commanding'general, Frémont, in 1861, what he freely allowed in 1864-’65, at Chattanooga.
    “By necessity of the case, in striving with conscientious fidelity, at Chattanooga and in this Territory, to comply with the act of Congress approved Ap’l 9,1864, sect. 3,1 drew down upon myself the ire of certain evil-doers. It was, I beg leave to say, ex necessitate rei that they conspired against me in the Department of the Cumberland as they seem to have done here in the Department of California.
    “ For the past four years, then, in the Army, and specially since May, 1865,1 have certainly fared hard. If other and more deserving chaplains have fared better, I heartily rejoice at it, but “justice” forbids that any one, of whatever grade, in the military service of the United States should be dealt with wrongfully. The letters sent me from the “A. G. O.,” dated May 2nd and June 24th, 1868, and from H’dq’rs Dep’t of Cal., dated Jan., 1867, and March 1867, and May 4th and June 22nd, 1868, do me injustice, and are wrongful. Those of May 2nd & 4th, 1868, make the act of Congress of April 9, 1864, and my “reports” in accordance therewith, a mere nullity; and they all do me manifest injustice in other respects. That of June 24, 1868, is in violation of law. I have, therefore, the honor to ask for the fullest and most thorough investigation. I desire to be heard from the witness-stand, and to be cross-examined freely. I desire that my family, who have generally been with me, shall be heard in the same manner. I desire to call other witnesses competent to testify. It concerns the interests and honor of the Army that I should have a hearing. But if this cannot be done, then I wish to tender to the honorable the Secretary of War my resignation as a chaplain of the Army, and to lay the facts which I have for years been accumulating - with greatest care before the churches and the country at large.
    “ With malice towards no one whatever, but with Christian love towards all, though in deepest sorrows and personal griefs,
    “I have the honor to remain, with great respect, your ob’d’t servant,
    “CHARLES M. BLAKE,
    
      Post-Ohcvplcoin, TI. S. A.
    
    “To the Hon. J. M. Schoeield,
    “ See’y of War, Washington, D. G.”
    
    IY. The mental disease of the claimant manifested itself more decidedly soon after the said letter was written. After it came to the hands of the commandant of the post, Captain Yonder-slice, an officer stationed at Camp McDowell, called Ms attention to the mental condition of the claimant, and suggested to Mm that the claimant was not responsible for his act in writing the said letter. The commandant thereupon retained the said letter until .the 31st of the same December, and then forwarded it with the following official indorsement:
    “H’bq’bs Sub. Dist. oe the Verde,
    “ Camp McDoicell, A. T., Dec. 31st, 1868.
    “ Respectfully forwarded.
    “ I most urgently recommend that the resignation of Chaplain Blake, within tendered, be accepted.. The tenor of this and other communications forwarded will, no doubt, convince the departmemt commander of his utter uselessness in the position he holds. I believe the dist. com’d’r is personally acquainted with him. I am satisfied that a minister of the Cospel who would command the respect of the soldiers & citizens would be very desirable at this post, but the present incumbent of the chaplaincy at this post is a disadvantage & reproach to both the Church and the Army.
    
      “A. J. ALEXANDER, B’v’t Brig. Gen’l Oom’g.”
    
    V. The following further official proceedings took place with reference to the said letter at the respective times when the same are dated:
    “H’dq’rs District oe Arizona,
    
      T., January 7,1869.
    forwarded, recommending the acceptance of the resignation.
    “THOMAS 0. DEVIN,
    
      “Lieut. Ool. 81% Oav.,
    
    
      B’t Brig. Gen’l. U. 8. A., CommandingP
    
    “ H’q’rs D’p’m’t, Jan’y 27, ’60.
    “ Respectfully forwarded.
    “I recommend immediate acceptance of this resignation. (Signed.) “E. O. C. ORD,
    
      “B’v’t Major- Gen’l.” .
    
    “H’dq’rs Mil. Division oe the Pacific,
    
      “8an Francisco, Gal., Jan’y 29,1869.
    “ Respectfully forwarded to the Adjutant-General of the Army.
    “Although charges of conduct unbecoming an officer and a gentleman have been preferred by Gen. Alexander against Chaplain Blake, and a court ordered in his case, I recommend the immediate acceptance of his resignation.
    “ H. W. HALLECK,
    
      “Major- General, Oomd’gP
    
    “Approved.
    “Mae. 17,’69.
    “JOHN A. RAWLINS,
    
      “See. of WarP
    
    [Special Orders, No. 62.]
    “ Headquabtebs oe the Abmy,
    “Adjtjtant-Genebal’s Obeice, '
    “ Washington, March 17,1869.
    # * * * # * #
    “ The resignation of Post Chaplain Charles M. Blake, U. S. Army, has been accepted by the President, to take effect March 17, 1869.
    “By command of General Sherman:
    . “ E. D. TOWNSEND,
    
      “Assistant Adjutant■ General.”
    
    VI. On the 29th March, 1869, the claimant sent the following telegram to R. 0. McCormick, then Delegate from the Territory of Arizona, at Washington:
    “ Napa City, Cal., March 28, 1869.
    “ Hon. R. 0. McCobmiok,
    “ Washington, D. 0.:
    
    “Sick. Resignationnotintended. If so construed, withdraw it immediately.
    “ CHARLES M. BLAKE,
    u0haplain, 27. 8. AP
    
    The said McCormick immediately laid this telegram before the Secretary of War, and was informed by him that the claimant’s resignation had been accepted and was beyond recall.
    This telegram was sent by the claimant at the instigation of his family after four or five days’ persistent entreaty on their part. At the .time of sending it his mental condition was much worse than when the said letter of December 24 was written. He was then totally unqualified for business.
    VII. The said acceptance of the claimant’s resignation having been officially communicated to him, he, on the 27th day of April, 1869, addressed tbe following letter to the Secretary of War: -
    “Napa City, Cal., Afl 27th, 1869.
    “ Hon. 'John A. Rawlins,
    
      “Secretary of War, Washington, D. C.:
    
    “ Dear Sir : To my great surprise I was yesterday informed, thro’ H’d Q’rs Dep’t of California, that my “resignation” as post-chaplain, U. S. Army, “ had been accepted by the President,” “ to take effect March 17th, 1869.”
    “As I am not aware of having at any time resigned my commission, and as I am now in a state of feeble health, caused by efficient services in the line of duty in 1863, 1864, and since, I beg' that the favorable reconsideration of the President may be given to my case, and that I may be ordered before a'retiring board for examination, and to duty if fit for it.
    “ Justice to the service, no less than to myself and family, after eight years of devoted labors, will not permit me to be silent in view of the wrongs done me at Camp McDowell, A. T., and I am confident that you will not allow me to suffer wrongfully.
    “ I have the honor to remain, with great respect, your ob’d’t servant,
    “CHARLES M. BLAKE,
    
      u(Late) Post-Chaplain, U. S. A.”
    
    The said last-named letter was referred to the Adjutant-General, who returned it with the following indorsement:
    “ Respectfully returned to the Secretary of War with the paper on which the resignation of Chaplain Blake was accepted. Chaplain Blake appears not to be of sane mind.
    “E. D. TOWNSEND, “Adft GenH.
    
    “A. G. O., May 16, ’69.”
    At the time when the claimant wrote the said last-named letter he was not of sound mind.
    YIII. On the'2d of July, 1870, there were 24 post-chaplains in the Army, exclusive of Blake. On the 7th of the same July the President nominated to the Senate six persons to be post-chaplains in the Army, to rank from July 2,1870. Among the nominations so made was the following:
    “Alexander Gilmore, of New Jersey, vice Blake, resigned.”
    On the 12th July, 1870, the Senate advised and consented to the appointment of the said Gilmore, agreeably to his said nomination ; and on the 14th of the same July he was duly commissioned as sucb post-cbaplain, to rank as sucb from tbe said 2d day of July. Said Gilmore bas regularly received bis salary as sucb post-cbaplain and performed tbe duties of said office since bis appointment, and be is still serving as sucb.
    IX. From tbe 2d July, 1870, until tbe 7tb September, 1877, tbe inception of this suit, tbe number of post-cbaplains on duty and recognized by tbe Secretary of War bave been as follows:
    Until tbe 27tb April, 1872 .:. 30
    17tb August, 1872. 29
    22d May, 1873 . 30
    23d October, 1873 ...29
    24tb October, 1874 . 30
    13tb September, 1875. 29
    27tb November, 1875 . 28
    24tb December, 1875. 27
    1st February, 1876 . 26
    14tk February, 1876 . 27
    5tb March, 1876.:. 26
    27tb June, 1876 . 27
    18tb July, 1876. 28
    15th August, 1876.-. 29
    9tb February, 1877 . 30
    1st March, 1877 . 29
    17th September, 1877. 30
    X. Tbe insanity of tbe claimant continued until about tbe year 1874. On the 28th September, 1878, tbe President made tbe following order, which was, on tbe same 28th day of September, communicated to tbe claimant’s counsel by tbe Secretary of War:
    “Executive Mansion,
    “ September 28,1878.
    “ It appearing from tbe evidence, and from tbe reports of tbe Surgeon-General of tbe Army, and tbe superintendent of tbe Government Hospital for tbe Insane, that Chaplain Blake was insane at tbe time be tendered bis resignation, it is held that said resignation was and is void, and tbe acceptance thereof is set aside. Chaplain Blake will be ordered to duty, and paid from tbe date of tbe resignation of Post-Chaplain Preston Nash, to wit, May 14th, 1878, by which resignation a vacancy was created which bas not been filled. The claim of Chaplain Blake for pay from tbe date of bis resignation to May 14th, 1878, during which Ms successor held' the office, discharged its duties, and received pay, is not decided, but-is left to the decision of the court, where it is understood to be now pending.
    “B. B. HAYES.
    XI. On the 2d day of October, 1878, the following order was issued by direction of the General of the Army:
    [Special Orders, No. 312.]
    “Headquarters or the Army, “Adjutant-General’s Oeeice,
    “ Washington, October 2,1878.
    “1. It appearing from evidence presented, and from the reports of the Surgeon-General of the Army, and the superintendent of the Government Hospital for the Insane, that Post-Chaplain Charles M. Blake, II. S. Army, was insane at the time he tendered his resignation, December 24,1868, said resignation is, by direction of the President, declared void, and the acceptance of the samé in letter from this office dated March 17,1869, as announced in Special Orders, No. 62, March 17,1869, from tMs office, is set aside.
    “ Chaplain Blake is restored to the list of post-chaplains of the Army, with his original date of rauk and with pay from May 14,1878, snice which date a vacancy in that grade has existed. He will report in person to the commanding officer, Department of Arizona, for assignment to duty. *
    * & * * # * # #
    “ By command of General Sherman:
    “E. D. TOWNSEND,
    
      u Adjutant-General.”
    
    XII. The pay of the claimant as chaplain ceased on the 28th April, 1869. Since the 14th May, 1878, he has received the salary given by law to a post-chaplain. Between April 28,1869, and May 14,1878, he has received no compensation as such officer. The. pay and emoluments of an officer of the rank of the claimant between the said 28th day of April, 1869, and the day of the commencement of this action amounted to $14,196.75.
    And upon the foregoing findings of fact, the court found the following conclusions of law:
    I. The claimant’s letter of December 24, 1868, to the Secretary of War was, in consequence of the circumstances under which it was written and forwarded and received, and for the reasons set forth in the opinion of the court, a resignation of his office.
    
      II. Suob resignation being accepted and the acceptance thereof duly notified to tbe claimant, the claimant ceased thereby to be an officer in the Army of the United States.
    III. Having been paid in Ml for his official services up to the time when his resignation took effect, he is not entitled to recover in this.action, and his petition must be dismissed.
    
      Mr. li. P. Lowe for the claimant:
    I have carefully reviewed the Mimmack Case in respect to its determination both by this court and the Supreme Court of the United States. A majority of this court held that, under the facts, Mimmack had resigned, and that when he received notice that his resignation had been accepted he was out of the service, and his connection with the Army severed; and this court further held and decided that the subsequent revocation of the acceptance by the President could not have the effect to restore him to the Army without new appointment, with consent and advice of the Senate; and as this was not done, so Mimmack could not recover in his suit. On appeal to the Supreme Court the same questions were passed upon and decided in the same way, without a division of the court.
    His honor Judge Nott concurred in the opinon upon some Other ground, but dissented from the principle upon which a majority of the court had based its decision, holding that the legal effect of the President’s revocation of the acceptance of Mimmack’s resignation was to remit him back to his former position as captain of the Army; and his status in the service being thus fixed by the President, it was conclusive upon the court and could not be questioned. His reasoning upon this point was plausibly and forcibly put; nevertheless, his views on this subject were before the Supreme Court when the case was reviewed and considered by it, and that court failed to see that it was concluded by the theory laid down by his honor Judge Nott from declaring that the act of the President in restoring Mimmack, under the circumstances, was inoperative and unauthorized by law. I presume it was felt that the proposition was laid down too broadly. If it had been qualified to the effect that, as long as the President, as Commander-in-Ohief of the Army, in exercising his functions as such, keeps within the law defining his powers and duties, however unwisely and injudiciously exercised] Ms acts are to be treated as binding and irrevocable. But if, in exercising his discretion and powers as Commander-in-Ohief in making appointments, removing officers, accepting resignations, filling vacancies, &c., he transcends the law and disregards its positive requirements, by which an in- . jury is done to the government or to individuals, he should be held amenable therefor as other citizens and officers, and the consequences of his.illegal act should bo averted by some authority or tribunal in the government. In the Mimmack Case the illegal act of the President affected injuriously the government itself, for Mimmack was trying to recover $9,000 as the fruit of the President’s unauthorized act. But tMs court denied his claim, because the President did an act without the authority of law-.
    In the case now before the court the illegal act of the President affected the rights of an individual instead of the government, namely, that of the plaintiff. It is admitted that Blake had not resigned or was ever out of the service, and that his right to recover his pay would be complete in law but for the fact that the President thought proper to push him aside and appoint a Mr. Gilmore as his successor. The law creating the office of chaplain placed them on the same footing of other Army officers as to the tenure of office, and fixed their maximum number at 30. This complement was full w'hen Gilmore was appointed, and he made by that appointment 31 chaplains in the Army. If he could do this, so he could continue to do ad libitum. But we say that the appointment of Gilmore was against and without the authority of law, and that it was not made valid by the Senate’s confirmation, for the two united can only appoint where there is an office to fill. (See 2d clause of 2d section of 2d article of the Constitution.) As there was no vacancy, original or created, to be filled, so the appointment of Gilmore w-as illegal, and could not have the effect to displace Blake from his office or defea this right to recover his pay. Precisely the same reason that was given to deny Mimmack Ms claim can be now assigned for awarding to Mr. Blake that which is due him under the law.
    But conceding that the concurring opinion in the Mimmack Case is the true one, in what way does it affect Blake’s right' of recovery ? Can it be truly said that to pay Mm would be in conflict with his status as a chajdain in the Army as fixed and established by the President ? Not at all. It would be in agreement with it. The President was compelled under the facts of the case to recognize his continued incumbency as a chaplain, assigned him to duty, and gave him a part of his back pay, and referred his right to the residue of his back pay to the determination of this court.
    Now, has the President done anything touching Blake’s status as an officer in the Army which would make it extra-judicial for this court to pass upon this question ? Surely not. I think the acts of the President in the premises estop the defendant from asserting two things: first, that Blake had ever resigned; second, that he was in any sense out of the service during the years he is now seeking to recover pay. What else, then, stands in the way of recovery ? It is said that the President, with the concurrence of the Senate, appointed Mr. Gilmore in the place of Mr. Blake, who filled the office and received the pay, and from the necessity of the case the government is not expected or required to pay two chaplains for the same office. To this objection there are several answers.
    1st. I have already shown that this appointment was illegal and unauthorized by law or the Constitution, and as such cannot have the effect of conferring a right where it does not otherwise exist, as inthe Mimmack Case; or, on the other hand, of defeating a subsisting legal right which has accrued, as in this case.
    2d. The second answer to this objection is, that the present Attorney-General, in an opinion called out by the Secretary of War, held in substance and legal effect in this case, that if Gilmore had been appointed with a knowledge of Blake’s insanity, then Blake’s right to recover his pay would not be impaired. Gilmore was appointed in July, 1870; the War Department knew of Blake’s insanity in May, 1869.
    3d. Under the act of Congress, July 13,1866, the tenure of an Army officer is established by law, rests upon contract, and in time of peace cannot be impaired by the President and Senate in the exercise of the appointing power. Now, the objection aforesaid proceeds upon the ground that if the appointment of Gilmore did not have the effect to displace Blake from office, it at least suspended his right to pay while Gilmore filled the place; but upon what principle ? Has it ever been so held by any court or laid down in any text-book? After the most diligent search, I could find no such reported case; it is against all reason and common sense. Blake had been guilty of no laches, nor done any act to forfeit his pay. His right thereto is just as good as though his resignation had been forged, accepted, and another person had been appointed in his place and paid. In such a case the government would make the payment in its own wrong, ann whilst it would be its misfortune to be overreached by the fraud, it would not be justified on that account to refuse paymentto the real incumbent of the office. The Treasury Department not unfrecjuently pays a claim to the wrong person upon a forged power of attorney or receipt ,• but it was never considered that its liablity to the true claimant was thereby discharged. When the fraud was clearly made known, the money was paid again to the proper party.
    
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants:
    The case resolves itself into this: Was the appointment of Gilmore invalid because the President in nominating him and the Senate in confirming him were under the impression that Blake had resigned ?
   Davis, J.,

delivered the opinion of court:

In Mimmack’s Case, decided at the late term of the Supreme Court, it was held that a written resignation to the President or the proper executive officer and the acceptance of the same, duly notified to the incumbent in the customary mode, creates a vacancy in an office.

In the present case there was a written resignation of his office by the claimant, admitted to be under his signature, and to have been sent by him with a purpose that it should reach the proper executive officer. This resignation was duly accepted, and the claimant was notified of the acceptance in the customary mode. If the case rested here, these facts would put the claimant in the position which Mimmack occupied when the Supreme Court held that he had no right to the office formerly held by him.

It is maintained, however, that the present claimant was of. unsound mind when he wrote and sent the letter which was accepted at the War Department as a resignation, and the court find that there is ground for the contention. If this is so, the * element of sound conscious purpose was wanting to the alleged resignation.

A new feature, however, comes into the case with the appointment of a successor to the claimant. The statute permitted but thirty officers of the claimant’s grade in the Army. In consequence of his letter of resignation his vacant seat was filled by the combined act of the President and the Senate. His successor was duly commissioned, and entered upon the duties of the office, and has received the emoluments for which the claimant now sues. This action is, therefore, in effect an attempt to try, under the form of a suit for deferred salary, the respective rights of these gentlemen to the office in question. It is to be observed that but one of them is in court.

The claimant rests his case on the alleged fact of insanity when he wrote his letter of resignation. If the War Department had acted in ignorance of this fact, or if it had displaced him after a full knowledge of it, a case unlike the present one would have been presented. In this case the findings show that the claimant had been suffering from physical disease and mental prostration for some time before he wrote his letter of resignation. It was not until after the date of that letter, however, that these symptoms developed to such an extent as necessarily to induce persons who came in contact.with him to believe that he was mentally incapable of acting with sound reasoning purpose.

After the letter had been put into the hands of the commandant of the post to be forwarded to Washington, it was brought to the notice of that officer that the claimant was in an excitable frame of mind, and that it was questionable whether he was responsible for his acts. The commandant did not forward the letter until a week after it was written. Presumably, he delayed in order to inquire about the claimant’s condition and to ascertain whether he did or did not know what he was about. The results which were reached are stamped in unmistakable terms on the recommendation which accompanied the claimant’s resignation. We find there none of the tenderness with which a gallant soldier would naturally treat a brother officer afflicted with the most terrible malady that can befall a man. On the contrary, it contains an urgent recommendation that the claimant’s resignation be accepted, because the commandant looked upon him as a disadvantage and a reproach both to the Church and the Army. It is, therefore, clear beyond all reasonable doubt that this officer, after personal inquiry, reached the conclusion that the claimant was not of an unsound mind, and that his eccentricities were not attributable to insanity.

In all this the commandant acted on the very question which we are now asked to pass upon. He was the proper executive officer to act on that question. From the nature of the case and from the character of his command he was authorized to pass upon it; it was his duty to decide it. Nobody intimates, nobody thinks that his decision was influenced by improper motives or that it was not in accordance with his own best judgment. Seen in the light of subsequent events, the decision was probably wrong. Viewed in the light of contemporaneous evidence, it was right in the judgment of the commandant. It was not questioned at the War Department, and we are all of opinion that we have no power to review or question it here.

Even if we had that power, it would be presumptuous to say with dogmatic certainty that the commandant erred when he trusted to the evidence of his senses. It is one of the most difficult of problems to fix the moment when a sound mind yields to its hallucinations and becomes incapable of further healthy action. A recent critic says: “The doctors of the insane have been studious of the state of Hamlet’s mind — Doctors Ray, Kellogg, Gonolly, Maudsley, Bucknill. They are unanimous in wishing to put Hamlet under judicious medical treatment, but they find it harder than Polonius to hit upon a definition of madness:

1-for to define true madness,
Wliat is’t fiut to fie nothing else fiut mad ? ’ ”

The suggestion in the criticism is acute and just. Experts may exhaust their learning in reading insanity through the lines of letters and written diagnoses; but they cannot infallibly tell why one man is mad and another is not, or why the first is insane at one time and sane at another. It is not safe to put absolute faith in their judgment, especially if it calls for a disregard of the results which intelligent laymen reach from a personal study of the condition of the alleged insane person.

The claimant’s history presents many circumstances calculated to excite sympathy. If the court as a body were allowed to give heed to the sympathies of the individuals who compose it; perhaps its judgments would accord less with what it holds to • be sound principles. It is to be observed, however, that the claimant’s position before the government in this matter is somewhat analogous to the position of a person of unsound mind in an ordinary civil tribunal. A' contract made by such a person can be enforced there only in certain exceptional cases, where hé has received a quid pro quo which controlling principles of policy require the court to recognize. In like manner, no force would be knowingly given by an executive officer, or by the law advisers of an Executive Department, to a resignation tendered in a state of insanity; and if a resignation offered under such circumstances should be accepted without knowledge of the facts, there can be no doubt that, on their coming to the knowledge of the executive officers, the inadvertence would be rectified as far as possible. (6 Op. Attys. Gen., 450; 10 id., 229; opinion of Attorney-General Devens in the present case.)

On the other hand insanity is no protection in the courts against liability for the direct and proximate consequences of acts of an insane person which are not in the nature of contract. As between two parties alike innocent of intent to cause injury, the law says that the party by whose act the injury comes shall be the sufferer, without regard to the intent or capacity of intent to cause it. In the same way, the department says, in effect, to the claimant, whatever we might have been willing to do for you had the vacancy hot been filled, we can do nothing-now. As the result of an act which is none the less yours that you did it without conscious purpose, another has been put in your place, and has acquired rights which we cannot disregard. If one of two innocent parties must suffer, the law lets the injury fall on him by whoso act it became inevitable, and his remedy must be sought in Congress, not in the courts.

In the view which we take of this case it has become unnecessary to consider the act of 1866 (Bev. Stat., § 1229), which was the subject of discussion on both sides at the trial. If the claimant fell out of the Army by resigation, a statute relating to dismissals does not touch his case; and, in any view that can bo taken of the facts, it is impossible to regard tlie claimant’s retirement as a dismissal within the meaning of‘the term as used in the act of 1866. We have also purposely omitted to consider either the constitutional effect of the nomination and confirmation and commissioning of Gilmore upon the status of the claimant, or .the narrower question of tbe power of tbis court to review tlie action of the President in accepting a resignation. On the latter point I express my individual concurrence with the doctrine laid down by my brother Nott in Mimmack’s Case, that “whether an officer of the Army has resigned or has not re. signed is a question which the judiciary cannot try. A certain piece of paper is indeed before the court bearing the appearance of a resignation, but whether it was such or not the President alone could decide.” (10.'C. Cls. K>., 599.)

Resting its decision, however, solely on the ground first above stated, in which we all unite, the court directs that the claimant’s petition be dismissed.

Drake, Oh. J., was absent when this case was heard and took no part in the decision.  