
    WILLIAM C. IDE v. THE UNITED STATES.
    [No. 16425.
    Decided May 26, 1890.]
    
      On the Proofs. .
    
    In 1869 an officer on tire active list is sentenced by a court-martial to be dismissed. The order of approval signed by tbe Secretary of War recites that the proceedings have been forwarded to him “for the action of ihe President,” “and the proceedings, findings, and sentence are approved.” Sentence is executed without objection on the part of the officer who does nothing until 1888 when he demands pay and brings this action.
    I. If an order in time of peace be issued by the Secretary of War dismissing an officer, and he submits without appeal to the President, and without objection for an unreasonable length of time, he must be held to have abandoned the office.
    II. This differs from the case- of Himide (122 U. S. R. 543) in this: that here the claimant was on the active list; that he did not appeal to the President; that he ro ade no effort to retain the office: that for eighteen years he rendered no service, and took no step toward recovering the office.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court: I. August 17,1861, the claimant was appointed and commissioned first lieutenant in the Thirteenth Regiment United States Infantry, to rank as such from May 14, 1861. July 2, 1862, he was appointed captain in said regiment, to rank from May 14, 1862, and was assigned to the command of Company C, in said regiment, in the service of the United States.
    II. In March, 1869, claimant was tried by a general court-martial upon charges of “ absence without leave” and “disobedience of orders; ” found guilty, and by said court-martial sentenced “ to be dismissed the service of the United States.” Alfred H. Terry, the general commanding the department in which said court-martial was held, approved its proceedings, findings, and sentence, and on April 13, 1.869, forwarded the record to the Secretary of War for the action of the President of the United States. May 12, 1869, John A. Rawlins, then Secretary of War, made an order or indorsement on the proceedings and sentence of said general court-martial as follows, to wit:
    “WAR Department,
    “ Washington City, May 12, 1869.
    “ In conformity with the sixty-fifth of the rules and articles of war, the proceedings of the general court-martial in the foregoing case of Bvt. Maj. William 0. Ide, captain Thirteenth Infantry, have been forwarded to the Secretary of War for the action of the President of the United States, and the proceedings, findings, and sentence are approved, and the sentence will be duly executed.
    “ Jno. A. Rawlins,
    “ Secretary of War.”
    Thereupon, by command of General Sherman, the Adjutant-General issued an order that:
    “ Bvt. Maj. William C. Ide, captain Thirteenth United States Infantry, accordingly ceases to be an officer of the Army, from’ the date of this order. ”
    The President never confirmed nor disapproved the proceedings or sentence of said court-martial, nor took any action thereon, nor made any orders in the case, unless he did so by some of the facts herein stated.
    III. Claimant was paid his salary as captain of Thirteenth Infantry, to include May 31,1869. He has never been paid since that date, as an officer of the Army. November 20,1888, he demanded pay as a captain of infantry in the U. S. Army from May 31, 1869, and received the following reply:
    
      “ Wae Department,
    
      “ Paymaster-General’s Oeeice,
    “ Washington, November 22, 1888.
    “William C. Ide, Esq.,
    
      “Late Captain Thirteenth Infantry, Buffalo, N. Y.:
    
    “ Sir : Your letter of November20,1888, demanding pay as an officer of the Army from the date of your dismissal under General Orders No. 26, of 1869, to the present date, is received, and in reply you are informed that this office has no authority to recognize any one as an officer of the Army unless his name is borne upon the official register, or notice of his appointment is communicated by the military authorities.
    “In the absence of any recognition of you as an officer of the Army, your claim for pay must be and is refused.
    “ Respectfully, your obedient servant,
    “ Wm. B. Rochester, l( Paymaster-General IT. S. Army.”
    
    IY. March 11, 1869, in compliance with an act of Congress, •approved March 3,1869, the infantry of the Army was consolidated into twenty-five regiments, but the Thirteenth Regiment was not consolidated with any other. By this consolidation the United States infantry was reduced from forty-five regiments to twenty-five.
    By the order affecting such consolidation it was ordered that :
    “ III. The senior company officers from each grade present for duty with any two regiments to be consolidated, and fit for active service, will be the officers of the consolidated regiment. The supernumerary officers will be ordered to their homes to await, further orders. * * *
    “ Y. All vacancies that may hereafter occur in the twenty-five infantry regiments will be filled by assignment of the senior officers of the same grade from the list of officers awaiting orders.”
    Y. After said claimant was so tried and sentenced, his said Company 0. Thirteenth Regiment Infantry, U. S. Army, was commanded by lieutenants to July 1,1870, when Capt. Alfred L. Hough took command of it; Capt. B. H. Rogers took command of said company May 2, 1874; Capt. H. C. Pratt on August 28, 1878; and Capt. B. H. Rogers again on November 11, 1878; no other captains have been in command of said Company 0, Thirteenth Regiment, since the claimant was dismissed. William G. Rankin was appointed captain U. S. Army, June 18, 1861 j belonged to Thirty-first United States Infantry; became unassigned May 15, 1869, when the Thirty-first and Twenty-second Regiments were, consolidated; was assigned to-the Thirteenth Regiment Infantry July 14,1869; commanded Company D of that regiment, and was discharged at his own request December 31,1870, under section 3, act of Congress, approved July IS, 1870. Seth Bonney was promoted from first lieutenant to captain in Twenty-seventh United States Infantry Decembers, Í868, to rank from November 11, 1868; he became unassigned by the consolidation of the Twenty-seventh Regiment with the Rinth, June 14,1869; was assigned to the Thir teenth Infantry January 26, 1871; commanded Company D of that regiment, and resigned April 1, 1872. Philip H. Ellis was promoted from second lieutenant to be first lieutenant of Thirty-first Regiment Infantry, to rank from December 28, 1866; became unassigned by the consolidation of the Thirty-first with the Twenty-second Regiment June 21,1869; was assigned to the Thirteenth Infantry January 1, 1871, and on June 8,1872, was promoted to the vacancy of captain in that regiment, caused by the resignation pf Capt. Seth Bonney; was placed in command of Company D, Thirteenth Regiment, April 1, 1872, and has retained command of that company to the present time. Alfred L. Hough was appointed captain Nineteenth Infantry June 29,1861; transferred to the Twenty-eighth Infantry September 21,1866; became unassigned March 31, 1869, by the consolidation of the Twenty-eighth with the Nineteenth Regiment; was assigned to the Thirteenth Regiment April 16, 1870, and promoted April 13, 1874, to be major of the Twenty-second Infantry, to rank from February 18,1874. Benjamin H. Rogers was promoted from second lieutenant to first lieutenant in the Twenty-first Infantry July 23, 1867; became unassigned July 9,1870; was assigned to the Thirteenth Infantry December 31,1870, and was promoted April 13,1874, to be captain in the Thirteenth Infantry “ to fill the vacancy caused by the promotion of Capt. Alfred L. Hough to be major of the Twenty-second Infantry.” Henry C. Pratt was commissioned second lieutenant Thirteenth Infantry July 27,1866; promoted to be first lieutenant Thirteenth Infantry to rank from July 1, 1867; promoted to be captain in the Thirteenth Infantry July 3,1876, to rank from June 10, 1876, “to fill the vacancy caused by the promotion of Capt. Robert Nugent, Thirteenth Infantry., to be major of the Twenty-fourth Infantry.”
    
      VI. April 16,1887, the claimant applied by petition to the President for restoration or reappointment in the Army, and April 4, 1888, filed a supplemental petition, to which he received the following reply:
    “ WAR DEPARTMENT,
    “ Washington City, May 15,1888.
    “ Sir : This Department is in receipt, by reference from the President, of a supplementary petition from you, dated April 4, 1888, for restoration or reappointment to the Army, as well as a letter from Mr. George Wadsworth, dated April 11, 1888, giving reasons why your dismissal was illegal and not affected by any subsequent promotion or appointment.
    “An investigation shows that while the indorsement upon ■the record in your case is similar to that of Major Runkle’s, the subsequent action taken was different. The vacancy created by your dismissal was filled by the transfer thereto, on July 14,1869, of Oapt. William G. Rankin, who was discharged December. 31,1870, this vacancy being filled under General Order ÍTo. 1 of 1871, by Oapt.- Seth Bonney, .unassigned. Captain Bonney resigned April 1, 1872, and 1st Lieut. P. H. Ellis was promoted to the vacancy and confirmed by the Senate, June 5,1872.
    “The decision of the Supreme Court in the Blake case (103 U. S., 227) is completely applicable to this condition of affairs, and under that opinion the filling of the office by the confirmation of Ellis superseded the legal holder of tlie office at the time. Although the appointment of Ellis was vice Bonney, resigned, it was, nevertheless, an appointment to the captaincy in the Thirteenth Infantry, of which you were still, in the law, the holder, and such appointment and confirmation operated to succeed you.
    “The War Department can not, therefore, admit your claim that you are still an. officer of the Army.
    “ Very respectfully,
    .' “William O. Endicott,
    “ Secretary of War.
    
    “ Mr. William 0. Ide,
    “ Buffalo, N. Y.”
    
      Mr. George Wadsivorth for the claimant.
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
   Richardson. Oh. J.,

delivered the opinion of the court:

The claimant, a captain in Thirteenth Infantry of the Army, ■was tried by a general court-martial upon charges of “ absence without leave ” and “ disobedience of orders,” was found guilty, and sentenced “ to be dismissed the service of the United States.”

The proceedings, findings, and sentence were approved by the general commanding the department, and the record was forwarded to the Secretary of War for action of the President, in April, 1869.

The Secretary of War made the following indorsement and order thereon:

“War Department,
Washington City, May 12,1869.
“ In conformity with the sixty-fifth of the Rules and Articles of War; the proceedings of the general court-martial in the foregoing case of Bvt. Maj. Wm. 0. Ide, captain Thirteenth Infantry, have been forwarded to the Secretary of War for the-action of the President of the United States, and the proceedings, findings, and sentence are approved, and the sentence-will be duly executed.
“ Jno. A. Rawlins,
Secretary of War.”

This order was thereupon carried into execution. The claimant left the Army in pursuance thereof, his name was dropped from the Army Register, and has never since appeared thereon. He performed no official duty after that time, and it does not apjiear that he offered to perform any until April 16, 1887, when he applied by petition to President Cleveland for restoration or re-appointment-, and his request was.denied. He has received no pay as an officer of the Army since his dismissal, and it does not appear that he ever asked for- any until he made demand on the 26th of November, 1888. To this demand the paymaster-general replied, that the office had no authority to recognize any one as an officer of the Army unless his name was borne upon the official register, or notice of his appointment was communicated by the military authorities.

On the 4th of January, 1889, he filed his petition in this court claiming the pay of a captain in the Army from May 31,1869, amounting to the sum of $44,897.

The claim is founded upon the alleged illegality of the action of the Secretary of War, in ordering the sentence of the court-martial dismissing the claimant from the Army to be executed. The decision of the Supreme Court in Runkle’s Case (122 U. S. R., 543) is relied upon in support of his petition.

If this case were identical with the Runkle case, and involved only the question of the illegality of the action taken upon, the findings and sentence of the court-martial dismissing the claimant from the service, his contention would be correct. The phraseology of the indorsement by Secretary Rawlins in this case and that of Secretary Belknap in Runkle’s case are not the same, and as to whether they are alike in legal effect we express no opinion. There are other material differences between the two cases which have an important bearing on our decision.

In time of peace, at least, an officer is not obliged to obey an illegal order. If such an order dismissing a subordinate from office be issued by a superior, but not by the highest officer in authority, the subordinate is not left without some obligations' resting upon him. It becomes his duty, at once or within a reasonable time, to appeal to the highest authority for revocation, modification, or correction of the illegal order. If he obeys and submits to the order without appeal and without objection for an unreasonable length of time he must be held to have abandoned all title and claim to the office and to its emoluments, and to have waived his right to both.

The claimant was dismissed during the early part of the first administration of President Grant, while General Rawlins was Secretary of War; Had he appealed to President Grant at any time during the more than three years remaining of his then term of the Presidency, or during the four years of his second term, the error, if any there were, could have been corrected. But he allowed President Grant’s two terms, and the terms of his three immediate successors (Hayes, Garfield, and Arthur) to expire without making appeal to either of them. Seven Secretaries of War, after Secretary Rawlins, came and went without any complaint from the claimant (Sherman, Belknap, Taft, Cameron, McCrary, Ramsey, and Lincoln).

It was more than eighteen years after his dismissal before he attempted to assert any right to the office, or any claim to the salary, and he made no effort anywhere to obtain possesion of the office from which he alleges lie was illegally dismissed. During the w#ole time he performed no official service and offered to perform none. Therein his case differs materially from that of Runkle. Referring to the order of Secretary Belknap in Runkle’s Case the Supreme Court say :

“ After this order was issued, but on the same day Runkle presented to President Grant a petition setting forth among other things, ‘ that the proceedings of said court had not been approved by the President of the United States as required by law.’ This petition was not only received by President Grant, but it was by him referred to the Judge-Advocate-General for ‘review’ and report. Upon this reference the Judge-Advocate-General acted and reported on the whole case. President Grant did nothing further in the premises, and the matter remained open when President Hayes came into office.”

Thus Runkle early and at once asserted his right to the office and kept the question open and before the Executive until it was taken up and decided in his favor four years thereafter. He did nothing from which an abandonment of the office could be inferred, for he was upon the retired list and was subject to no duty.

It is said that the claimant submitted to the order dismissing him and made no appeal to the President for eighteen years because he was ignorant of the law until the decision of the Runkle case in 1887. But he was bound to know the law. Ig-norantia legis neminem exeusat. The law had been upon the statute-book since 1802 in substantially the same language as it appeared when he was dismissed (act of 1802, March 16, chap. 9, sec. 10, 2 Stat. L., 134), and it was included among the Articles of War enacted in 1806 (act of 1806, chap. 20, art. 65, 2 Stat. L., 367).

By the decision in Ruukle’s Case the Supreme Court did not malee the law; they only threw judicial light upon what had been the law for more than eighty years, as everybody was bound to know. ,

Runkle knew the law and acted upon that knowledge with vigilance. Thus he waived no rights and lost none. Besides, unlike the claimant, he was upon the retired list with no duties to perform, and while his name was not on the Army Register, no other officer took his place.

The fact that this is not an action directly to regain possession of an office must not be lost sight of. That issue can not be tried in this court. Whether the claimant was dismissed rightfully or wrongfully, the fact remains that he was defacto out of the Army, and some other officer was required to perform the active duties belonging to the office from which he was dismissed.

The Government is not responsible .for the consequences of illegal orders of subordinate officers the execution of which is acquiesced in for an unreasonable length of time by the aggrieved party without appeal to the highest authority.

The point decided in Blake's Case (103 U. S. R., 227), referred to in the letter of the Secretary of War, set out in finding six and much discussed at the trial, has not been taken into consideration, and its application, if any, to the facts here found is not passed upon.

The only question now decided is whether or not the claimant, an officer on the active list of the Army, under all the circumstances of the case as disclosed in the findings, is entitled to recover some $40,000 salary, for eighteen years and more, of an office the duties of which he never performed, and never offered to perform during that period, and which were discharged by some other officer.

On that issue, and on that alone, we hold that he is not entitled to recover, and his petition is dismissed.  