
    Richard R. Corson v. The United States.
    
      On the Proofs.
    
    
      In March, 1865, an assistant quartermaster, without hearing or notice, is dismissed by President Lincoln. In June, 1865, the order of dismissal is revoked by President Johnson. In October, 1866, the officer is honorably mustered out.
    
    I.The power to revoke an order dismissing an officer from the Army has been frequently exercised by different Presidents.
    II.If an order dismissing an officer be revoked before the rights of other parties have intervened, the revocation presents only a question of executive authority.
    III. The power of revocation where it does not disturb the intervening rights of other officers, nor draw from the Treasury large amounts of unearned back pay, has frequently been recognized and by the early decisions of this court.
    IV. Whether, under recent decisions, the President, having once dismissed an officer, or accepted his resignation and given notice thereof, so that nothing remains to be done to make the severance complete, can again restore him to office, except by a new appointment, with the advice and consent of the Senate, Qmere.
    
    
      
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. Claimant enlisted as a private soldier in the military service of the United States in August, 1861. Having been [iromoted from time to time, he was commissioned prior to March 27, 1865, as captain and assistant quartermaster of volunteers. From August, 1861, to March 27, 1865, his service was continuous. March 27,1865, the following order was made by President Lincoln, and notice served upon claimant within a few days thereafter:
    “[Special Orders, No. 147.]
    “War DEPARTMENT, Adjutant-General’s Office,
    “ Washington, March 27, 1865.
    «.it. -u. .ic. «íí. -VTP IP Tv "A" w
    TP IP Tv "A" w
    “ 4. By direction of the President, Captain Richard R. Cor-son, assistant quartermaster, U. S. Volunteers, is hereby dismissed the service of the United States.
    
      *******
    
    “By order of the.Secretary of War:
    “E. D. Townsend,
    
      11 Assistant Adjutant- General
    
    II. April 24, 1865, claimant made application to the President, through the Quartermaster-General, to have the order of dismissal revoked. Thereafter the following orders were successively issued by President Johnson:
    “ [Special Orders, No. 291.]
    “War Department, Adjutant-General’s Office,
    “ Washington, June 9, 1865,
    *******
    “ 34. By direction of the President, so much of Special Orders, No..l47, from this office, dated March 27,1865, as dismisses Captain Richard R. Corson, assistant quartermaster, U. S. Volunteers, is revoked, and he is hereby restored to his former position in the service.
    # * * # -H? #
    “By order of the Secretary of War:
    “E. D. Townsend,
    “ Assistant Adjutant- General.”
    
      “[Special Orders, No. 315.]
    “War DepartMent, Adjutant-General’s Office,
    “ Washington, June 19, 1865.
    # * * * * * #
    “44. Captain Richard R. Corson, assistant quartermaster, U. S. Volunteers, is hereby assigned to duty as division quartermaster of the 1st Division, 1st Army Corps, with the temporary rank, pay, and emoluments of major of the Quartermaster’s Department, under act of July 4, 1864.
    * * # * * * *
    “By order of the Secretary of War: .
    “E. D. Townsend,
    “ Assistant Adjutant- General.”
    III. Under the orders set out in Finding II, claimant continued in the service from June 9,1865, until mustered out by the following order:
    “ [Special Orders, No. 531.]
    “War Department, Adjutant-General’s Office,
    “ Washington, October 7, 1865.
    
      *******
    
    “29. Under the provisions of General Orders, No. 79, May 1, 1865, from this office, the services of the. following-named assistant quartermasters, U. S. Volunteers, being no longer needed, they are hereby honorably mustered out of the service of the United States. They will receive no final payments until they shall have satisfied the Pay Department that they are not indebted to the United States.
    “Captain Richard R. Corson.
    * * * * # * *
    
    “By order of the Secretary of War:
    “E. D. Townsend,
    “ Assistant Adjutant-General.”
    
    
      ' IV. Between the date of dismissal, March 27, 1865, and the date of revocation, June 9,1865, it does not appear that the vacancy was filled by another appointment.
    V. The claim is for pay from March 27,1865, to June 9,1865, amounting to $328. Also for three months’ pay proper under the following statutes, amounting to $210:
    “ [Act of 1855, March 3, cli. 81, § 4 (13 Stats., 497).]]
    “SBC. 4. And be it further enacted, That all officers of volunteers now in commission below the rank of brigadier-general, wbo shall continue in the military service to the close of the war, shall be entitled to receive, upon being mustered out of the sendee, three months’ pay proper.”
    “ [Act of 1866, July 16, cli. 181 (14 Stats., 94).]
    “AN ACT to extend the benefits of section four of an act. making appropriations for the support of the Army for the year ending Juno thirtieth, eighteen hundred and sixty-six, approved March third, eighteen hundred and sixty-live.
    
      “Be it enacted, dee., That section four of an act entitled “An act making appropriations for the support of the Army for the year ending June thirtieth, eighteen hundred and sixty-six,’ be so construed as to entitle to the three months’ pay proper, provided for therein, all officers of volunteers below the rank of brigadier-general who were in the service on the third day of March, eighteen hundred and sixty-five, and whose resignations were presented and accepted, or who were mustered out at their own request, or otherwise honorably discharged from the service after the ninth day of April, eighteen hundred and sixty-five.”
    VI. Claimant was not indebted to the United States at the commencement of this suit.
    
      Mr. If. IF. Br eh ford and Mr, A. S. Worthington for the claimant:
    We rest this ease upon the decisions of this court .in Smith’s Case, 2 O. 01s. It., 206; Winters’s Case, 3 O. Cls. B., 136; and Barnes’s Case, 4 C. Cls. B., 216. As to the claim made here for pay between the date of dismissal and the date of revocation of the order of dismissal, the case at bar is not to be distinguished from those of Smith and Winters. As to the claim for three months’ pay proper, under the Act of March 3, I860, it follows that the claimant is entitled to it, from the reasons given by the court for its decision in the above cited cases.
    It would be inconsistent to pay the claimant for the interval in question on the ground that the order of revocation wiped out the order of dismissal and left him in the service as though he had never been dismissed, and, at the same time, to refuse him this three months’ pay on the ground that he was not in the service at all during the interval for which he is so paid.
    
      Mr. George O. Wing (with whom was the Assistant Attorney-General) for the defendants:
    At the period referred to, the President was fully invested by statute with the power of summary dismissal. {Act of July 17, 1862, § 17; 12 Stat. L., 96.) This power was deliberately exercised as to the claimant, and be thereby lost completely bis title to office. The order of a succeeding President reversing the dismissal was ineffectual to restore claimant to the Army, which could only be done, under the circumstances, by a new appointment. (Mimmach v. United States, 97 U. S. ¿., 437.)
    Claimant rests upon certain decisions of this court. JBut those decisions were rendered upon different facts than are presented here, and were carefully limited to cases wherein the orders of dismissal and of revocation were issued by the same President. (Montgomery v. United States., 5 O. Cls. R., 96.)
    That a.final decision and act of one President should not be subject to review and reversal by a successor has repeatedly been asserted by Attorneys-General, and the Executive conduct has almost invariably conformed to such advice. (5 Opin., 29; 2 Opin., 8. See, also, 2 Opin., 116, 464; 5 Opin., 123; 6 Opin., 507, 605; 9 Opin., Í01, 301; 13 Opin., 3, 457; United States v. Barilc of the Metropolis, 15 Pet., 401.)
    Upon the above reasoning, it is submitted that the order of President Johnson was insufficient to restore this claimant to the office to which he had been legally appointed, and from which he had been legally removed by President Lincoln. It follows that having been paid unto March 27, 1865, he has no right to further pay, nor to the gratuity which would have been his had he held a commission continuously until after April 9, 1865. Even if otherwise entitled to the pay as here claimed, he has no right to demand it, nor have the disbursing officers the . right to pay him, until the latter have been satisfied that he ' is not indebted to the United States. Such were the terms upon which he was mustered out, and it would be dangerous, in view of this well-known practice of the War Department, to allow officers to come into this court and recover a judgment when they cannot show the certificates of non-indebtedness which are always required before final payment by the department.
   Scoeield, J.,

delivered the opinion of the court:

In August, 1861, the claimant enlisted in the Union Army as • a private soldier. After several intermediate promotions he was finally commissioned captain and assistant quartermaster. March 27, 1SU5, without hearing or notice, he was dismissed by President Lincoln. June 9,1805, the dismissal was revoked by President Johnson. Thereafter he continued in the service until October 7, 1865, when he was honorably mustered out.

The revocation, it is claimed, reinstated him in office as effectually as if the dismissal had never been made. Being thus reinstated he became entitled, as it is further claimed, to payment, both for the intervening time and the “three months’ pay proper” allowed by the Act March 3,1865 (13 Stat. L, 497).

Upon the facts the claimant makes a strong appeal. As the dismissal appears to have been undeserved, the petition for reversal made without delay, and its prayer granted before the rights of other parties had intervened, it seems to present only a question of Executive authority. Having the power to dismiss an officer or accept his resignation, it was supposed the President had power also to reconsider his action. Many if not all Presidents have claimed and exercised this power. Some have refused to consider stale cases; others have acted on cases of long standing. Some, following the uniform rule laid down by all Attorneys-General, have refused to review the decisions of their predecessors; others, regarding the rule' as one of convenience and propriety only, have taken up cases that had slept through several administrations. Many revocations have had no other effect than to right a wronged officer ; others have not only disturbed the intervening rights of other officers, but drawn from the Treasury large amounts of unearned back pay. This power of revocation has frequently been recognized by the accounting officers of the government, and in a qualified form by the early decisions of this court.

By some recent decisions of this court, affirmed upon appeal by the Supreme Court, the power to revoke a dismissal or withdraw an acceptance of a resignation has been very much circumscribed, if not wholly denied. (Mimmack’s Case, 10 C. Ols. R., 584, affirmed 97 U. S. R., 437; McElrath's Case, 12 G. Ols. R., 201, affirmed 102 U. S. R., 426; Blake's Case, 14 O. Ols. R., 462, affirmed 103 U. S. R., 227.) The purport of all these decisions is that the President, having once dismissed a military officer or accepted his resignation and given notice thereof, so that nothing remained to be done to make the severance complete, cannot again restore him to office except by a new appointment in pursuance of a nomination to and confirmation by the Senate.

These decisions and the line of argument upon which they are based might authorize us to hold that the claimant, having been completely severed from the Army by the dismissal and notice, could only be restored by a new appointment; and that the revocation so far as designed to place hitn in statu quo was void. Whether it might operate as a new appointment is not a question in the case, because for all subsequent service he has already been paid.

But it is suggested that the cases above referred to could possibly have been decided upon facts and points not appearing in this. In the McElrath and Blake cases many years had intervened, and the places made vacant long before filled. In the Mimmack case, the vacancy had been filled by Executive promotion, the Senate not being in session.

This case is not thus complicated. The revocation was in due form, no unreasonable time had elapsed, and the vacancy had not been filled. The only question to be decided is, Had the President power to revoke the dismissal? Whatever our opinion may be, it is considered desirable, in fairness to the claimant, as well as for the information of the executive departments, the Army, and the public, that a question so distinctly involving the power of the President, now, as often heretofore, claimed and exercised by that high officer, should be settled by the Supreme Court.

This can be accomplished only by deciding the case against the defendants.

The judgment of the court therefore is that the claimant recover from the defendants the sum of $538.

Nott, J., not being present at the hearing, took no part in the decision.  