
    GENERAL WOOD’S CASE.
    Thomas J. Wood v. The United States.
    
      On the Proofs.
    
    
      In 1868 a retiring board finds a colonel incapacitated, and the incapacity the result of wounds received in battle while commanding a division with the brevet 'rank of major-general. He is thereupon retired by the President under the Act 18ih Inly, 1866, with the full rank of major-general. Subsequently his retired rank is changed by operation of the Act 3d March, 1875, to that of brigadier-general.
    
    I.The distinction between '•‘office,” “rank,” and “grade" in the Army examined and stated.
    II.Appointments to office can be made only by the executive branch of the government in the manner provided by the Constitution (Art. II, § ‘¿), and not by Congressional enactment.
    III.Congress may retire an officer from active service and place him on the retired list upon a rank different from that which attaches to his office by general laws, and may change the mere rank of an officer on the active or retired list at pleasure without coming in conflict with the Constitution.
    
      The Reporters'1 statement of the case:
    Tbe following are tbe facts as found by tbe court:
    I. Tbe claimant was graduated from tbe United States Military Academy and appointed a brevet second lieutenant in tbe Corps of Topographical Engineers July 1,1845; transferred to tbe Second Dragoons October 19,1846; promoted second lieutenant Second Dragoons December 2,1846 (brevetted first lieutenant February 23, 1847); 'first lieutenant June 30, 1851; appointed captain First Cavalry March 3, 1855; promoted major March 16,1861; lieutenant-colonel May 9,1861; promoted colonel Second Cavalry November 12,1861. He was commis-ioned brigadier-general of volunteers October 11, 18G1, and major-general of volunteers January 27,18C5; and March 13, 1865, was brevetted brigadier-general and major-general United States Army. He was mustered out of tbe volunteer service September 1, 1866. He was on leave from date of graduation until be joined tbe Army in Texas, in September, 1845, where be served with tbe Corps of Topographical Engineers until October 25,1845. He was then on sick leave of absence until April 9,1846, when be rejoined tbe Corps of Topographical Engineers in Texas, subsequently serving with it in Mexico to December, 1846, when he joined the Second Dragoons. He served with bis regiment and was on detached service in Mexico to June, 1848, and subsequently in Louisiana and Texas to October 26, 1849; was on special duty at West Point, N. Y., to January 2, 1850; on duty with bis regiment or on staff duty in tbe Southwest to July 1,1854; on recruiting service to September 15, 1855; with regiment in Kansas to November 23, 1857; on leave of absence to May 7, 1858; with regiment in Kansas and tbe Indian Territory to December 1,1859; on leave to April 15, 1861; on mustering and disbursing duty to October 11,1861, when be was relieved, having been commissioned brigadier-general of volunteers and assigned to tbe command of a brigade in tbe Department of tbe Cumberland; remained in command to December 24,1861, when be was placed in command of camp of instruction at Bardstown, Ky., and was engaged in organizing a division, which be was to command, to January, 1862; commanding sixth division, Army of tbe Ohio, subsequently known as tbe first division, left wing, Fourteenth Army Corps, until December 31,1862, when, at tbe battle of Stone Kiver, be was wounded in tbe left foot by a rifle-ball. He was absent on account of bis wound until February 10,1863; rejoined for duty and was in command of first division, Twenty-first Army Corps, to February 18,1863; tbe Twenty-first Army Corps to some time in March, 1863; tbe first division of that corps to April 10,1863. He was on sick leave of absence to May 15,1863; was commanding United States forces at Nashville, Tenn., to May 20, 1863; first division, Twenty-first Army Corps, to October, 1863, when tbe designation of tbe command was changed to tbe third division, Fourth Army Corps. Save during a sick leave of absence, from January 10 to February 12,1864, be was present in tbe field, in command of that division, until December 1, 1861, having in the mean time been severely wounded, Septembers, 1861, at the battle of Lovejoy’s Station, Ga. He commanded the Fourth Army Corps to February 5, 1865; the third division, fourth coiqis, to August, 1865; the central district of Arkansas from September 9 to November 3,1865; the Department of Mississippi from November 11, 1865, to September 1,1866, and the district of Mississippi to January 17, 1867. He was on leave of absence and awaiting orders to December 10, 1867, and was commanding his regiment and Fort McPherson, Nebraska, to January 25, 1868, when he was ordered, at his own request, to appear before a retiring board in New York City.
    II. The following is an extract of the proceedings of the retiring board in claimant’s case, viz:
    “Boohs oe Aejit Retiring- Board,
    “ 125 Bleecker Street, New York City,
    
      “February 22,1868 — 13 o’clock a. m.
    “The board met pursuant to the foregoing orders.
    
      *******
    
    “The board is of the opinion that Brevet Major-General Thomas J. Wood, col. 2d II. S. Cavalry, is incapacitated for active service, and that said incapacity is the result of three wounds received in battle in the line of his duty while commanding a division of troops in the service of the Hnited States.
    “P. St. Geo. Cooke,
    
      11 Brig. Gen. TI. S. A., Pres’t Board, B. M. G.
    
    “John J. Hawes,
    “ 1st Lieut. 1st Art’y, Recorder?
    
    III. The proceedings of the retiring board in claimant’s case were approved by the President, and thereupon, by his authority and direction, the following order was issued and published:
    [Special Orders No. 136.]
    “Headquarters oe the Army,
    “Adjutant-General’s Oeeice,
    “ Washington, June 9,1868.
    * ‘ # * * * # #
    “9. Brevet Major-General Thomas J. Wood, colonel 2d H. S. Cavalry, having, at his own request, been ordered before a board of examination, and having been found by the board to be physically incompetent to discharge the duties of his office on account of wounds received in battle, and the finding having been approved by the President, his name will be placed upon tbe list of retired officers of' that class in which the disability results from long and faithful service or some injury incident thereto. In accordance with section 32 of the act approved July 28,1866, General Wood is, by the direction of the President, retired with the full rank of major-general.
    “By command of General Grant.
    “E. D. Townsend,
    
      “Assistant Adjutcmt- General?
    
    The disability on account of which the claimant was retired was occasioned by the wounds received in battle by him when holding the command of a major-general.
    IV. The claimant accepted the rank of major-general on the retired list as contained in the order dated June 9,1868, and received the pay of that rank from June 10,1868, to March 3,1875.
    V. On the 23d day of March, 1875, the Secretary of War published the following order, viz:
    [General Orders No. 33.]
    “ War Department,
    “Adjutant-General’s Oeeice,
    “ Washington, March 23,1875.
    “By direction of the President, and conformably to the act approved March 3,1875, entitled ‘An act for the relief of General Samuel W. Crawford, and to fix the rank and pay of retired officers of the Army,’ the retired list of the Army, under the heading ‘ Officers retired with the full rank of the command held by them when wounded, in conformity with sections 16 and 17 of the act of August 3, 1861, and section 32 of the act of July 28, 1866,’ is amended to fix the rank of the following named officers from March 3, 1875, as below enumerated:
    * # # « •# * *
    “BRIGADIER-GENERALS.
    “Thomas J. Wood (heretofore major-general).
    “ Richard W. Johnson (heretofore major-general).
    “Eli Long (heretofore major-general).
    « * # * # * #
    “E. D. Townsend,
    
      11 Adjutant- General.”
    VI. Seventy-three officers were retired on the rank of the command held by them when wounded, under section 32 of the Act July 28,1866 (14 Stat. L., 337). Of' these, all fell within the exceptions named in section 2 of the Act March 3, 1875 (18 Stat. L., 512), but nineteen. Eight of these nineteen have been restored to the rank on which they were originally retired since the promulgation of the order set out in the fifth finding.
    VII. Since March 3,1875, claimant has only received the pay of a brigadier-general retired.
    The pay of a major-general retired since March 3,1875, has been $5,625 per year, and that of a brigadier-general retired $4,125 per year.
    From June 9, 1868, to March 23, 1875, the claimant’s name was on the Army Eegister with the rank of major-general retired, and since that time his name has been on the Eegister with the rank of brigadier-general retired.
    
      Mr. JB. IF. Grafton for the claimant:
    Officers of the Army on the retired list are public officers. {Ex parte Herman, 13 Pet.,- 258, 259.) The moment claimant was appointed o the office of major-general on the retired list in the Army, and withdrawn from the active list, his right to the office and the pay of the office, as fixed by law from time to time, became a vested right, and could not be destroyed by any subsequent legislation, except such as abolished the office. [Chirac v. Chirac's Lessee, 2 Wheat., 277; Society, &e., v. Hew Haven, 8 Wheat., 493; Steamship Company v. Jolliffe, 2 Wall., 458; Planters’ Banlc v. Sharp, 6 IIow., 319. See also 6 Wheat, 23.)
    Congress may by law abolish any office it has created; but it cannot remove the incumbent of any office. At the time claimant was appointed a major-general on the retired list (June 9, 1868), the Act July 13, 1866 (14 Stat. L., § 5, last clause, p. 92; Eev. Stat., § 1229), was in full force. This formed a part of the contract as much as if it had been written in the commission or order of appointment. On the proposition to withdraw claimant from the active list of the Army and to retire him infthe office of major-general, subject to the condition that he should not be removed from office in time of peace except upon or in pursuance of the sentence of a court-martial to that effect, the minds of the President and the claimant met, and the contract became complete when the claimant was appointed to the office of major-general on the retired list.
    The rule laid down in Utley v. Donaldson, 4 Otto, 47, applies.
    
      Congress attempted to legislate a colonel into a brigadier-general. Tbe second section attempted to legislate major-generals into brigadier-generals, and colonels into majors, and captains into lieutenants. In other words, it was a legislative attempt to put one man up and all tbe others down; to legislate one man into a higher and distinct office from that held by him at the time, and other men into lower and distinct offices than those held by them at the same time.
    
      Mr. George G. Wing (with whom was the AssistantAttorney-General) for the defendants:
    Becovery cannot be had in this case because the thirty-second section of the act of July 28,1866, upon which this claim for the pay of a major-general retired is based, was repealed by the second section of the act approved March 3,1875.
    After March 3,1875, this latter law furnished the only authority for continuing claimant upon the retired list; and if this was not effective to justify the reduction then made in his rank, his relation with the government as a retired officer upon that •day ceased; and whatever has been paid since was paid without law and received without legal right. June 10,1872 (17 Stat. L., 378), Congress returned, as to the future, to the rule of actual rank at the date of retirement, adopted by the original act of August 3, 1861.
    The repeal of the thirty-second section by the act of 1872 had no retroactive character. The second section of the act of March 3,1875, by implication, by declared construction, and'by ■express words of repeal used, had distinctively such character. (Twenty fer cent. Gases, 20 Wall., 187.)
    ■ This latter legislation thus removed all authority to regard and pay the claimant as before.
    Bank on the active list is synonymous with duty, rights, and command. Bank on the retired list, as will be further suggested, can import nothing more than a bare title decoration. As to the individual, it appropriately marks and recalls the •character of the honorable service he rendered; but practically it serves merely to retain the Army mode of computation, and to signify the rule of pay.
    
      11 Officers retired from active service shall receive 75 per cen-tum of the pay of the rank upon which they are retired.” (16 Stat. L., 320.)
    
      Whether claimant held an office or was merely the recipient of a species of pensiou, Congress, by new and affirmative statutes in direct and positive terms, could have discontinued either and provided a different office or pension. It can equally do this by giving construction to the existing laws. (StocMale v. Insurance Go., 20 Wall.; Bassett’s Case, 2 O. Cls. B., 449.)
    A position on the retired list is not a public office. An office must have duties which are continuing and permanent, not occasional and temporary. (Sartivell’s Case, 6 Wall., 385.), This, definition was repeated and strictly applied in United States v. Germaine, 99 TJ. S., 503.
    The act of August 3,1861, establishing the retired list requires the officer to be relieved from all the natural and constant duties covered by the commission he received after confirmation by the Senate or from the obligations of another office which he might occupy if promoted. No fixed duties are substituted. He may be assigned to such as the President deems, him capable of performing. (§ 25, same act.) This did not-create, however, certain and definite duties; only those which must necessarily be “ occasional and intermittent.” Afterwards "(10 Stat. L., 62), the assignment of retired officers to duty of any kind was forbidden; and the liability to service at the Soldiers’ Home or in colleges subsequently allowed (16 Stat. L., . 320,372) has been pronounced by this court, in the Collins Case, not to constitute such service as can be regarded of an official public character.
    The objection that when claimant was retired as major-gea-eral the act of July 13,1866, being in force, formed a part of a contract and operated thus to prevent his subsequent reduction is without force. There is no question of contract here. His commission, dated November 12,1861 (on file), was to hold “during the pleasure of the President for the time being, and no-longer.” .
   Bichakdson, J.,

delivered the opinion of the court:

The claimant alleges, in effect, that he held and still holds the office of major-general on the retired list of the Army, and that Congress has undertaken, by legislative enacment, to remove him from that office and to appoint him to the office of brigadier-general on the retired list. This, he contends, they have no constitutional power to do, and he seeks to recover the differeúce between the salary of a major-general and that of a brigadier-general, which last has been paid to him.

He held the office of colonel of cavalry in the line of the Army of the United States on the active list when Congress passed the Act July 28, 1866 (14 Stat. L., 337, ch. 299), the thirty-second section of which was as follows:

“ Sec. 32. That officers of the Regular Army entitled to be retired on account of. disability occasioned by wounds received in battle may be retired upon the full rank of the command held by them, whether in the regular or volunteer service, at the time such wounds were received.”

The claimant was wounded in battle while in command of a division of the Army, that being the command of an officer of the rank of major-general. In the year 1868 he was ordered before a retiring board of officers, in accordance with the provisions of law which now form sections 1245-1251 of the Revised Statutes. On the 24th of February of that year the retiring board made the following report, which was approved by the President:

£<The board is of the opinion that Brevet Maj. Gen. Thomas J. Wood, colonel Second United States Cavalry, is incapacitated for active service, and that said incapacity is the result of three ' wounds received in battle in the line of his duty while commanding a division of troops in the service of the United States.”

In pursuance of the provisions of the act of 1866 already cited, and this report of the retiring board, the claimant was retired by direction of the President on the 9th of June, 1868, with the full rank of major-general.

In order to a correct decision of the issue involved in this case, we must first consider what is the difference between office and rank, and must then determine what office the claimant held when thus retired.

The titles or names of the offices to which general and line officers of the Army are appointed — general, lieutenant-general, major-general, brigadier-general, colonel of cavalry or infantry, lieutenant-colonel, major, captain, and lieutenant — are employed also as the designation of rank for both the line and the staff, and when no other rank is conferred upon general and • line officers the titles of their respective offices also express their rank. But it does not follow that rank and office are therefore always identical, and in point of fact they are not so.

Bank is often used to express something different from office. It then becomes a designation or title of honor,, dignity, or distinction conferred upon an officer in ordér to fix his relative position with reference to other officers in matters of privilege, precedence, and sometimes of command, or by which to determine his pay and emoluments. This is the case with the staff-officers of the Army. Section 1131 of the Bevised Statutes provides that there shall be five inspectors-g'eneral, with the rank of colonel of cavalry. The office thus provided for is inspector-general, and not colonel of cavalry. The latter is a designation with entirely different legal effect from that which the same words express when used to describe an office; that is to say, he receives the pay and is entitled to the dignity, but has not the office, with its command and other duties, of a colonel of cavalry. In the same manner 'the Judge-Advocate-General has the rank of brigadier-general (Rev. Stat., § 1198), and chaplains have the rank of captains of infantry. (Rev. Stat., § 1122.) The Adjutant-General has the rank of brigadier-general, and the assistant adjutant-generals the rank of colonel, lieutenant-colonel, or major of cavalry. (Rev. Stat., § 1128.) So with officers of the Quartermaster’s Department and the Medical Department, who have rank attached to, but separate and distinct from, their office. (Rev. Stat., §§ 1132, 1168.)

The distinction between rank and office is thus more clearly apparent with reference to staff officers than to officers of the line, because in the latter case the words used to designate the rank and the office are usually the same, while in the former case they are always different.

In some cases officers of the line have a rank assigned to them different from that of the title of their office. The Bevised Statutes, in section 1096, provide that the General may select from, the Army such number of aids, not exceeding six, as he may deem necessary, who shall have, while serving on his staff, the rank of colonel of cavalry. By section 1097, the Lieutenant-General may select from the Army two aids and one military secretary, who shall have the rank of lieutenant-colonel of cavalry while serving on his staff. These selections may be, and usually are, made from among officers whose rank is raised to a higher degree by the- service assigned to them. A captain of infantry in the line of the Army may thus be made to rank, temporarily, as a colonel of cavalry. That the new rank thus conferred is not a new office is conclusively shown by the fact that it is acquired by a selection or appointment, if it may be so called, made by the General of the Army, and the Constitution does not permit the power of appointment to office to be vested in the General of the Army. (United States v. Germaine, 99 U. S., 503; Collins's Case, 14 C. Cls. R., 568, and ante, 22.)

The pay of officers on the retired list of the Army is determined by the rank upon which they are retired (Rev. Stat., § 1274), and all officers, whether on the active or retired list, are paid according to their rank, except in the case of chaplains, who, under the designation or title of their office, are paid a lower rate than is allowed to other officers of the same rank. (Rev. Stat., § 1261.)

By the laws governing the Navy,* unlike those respecting the Army, the pay of staff officers is fixed generally according to, and by the designation or title of, the offices held by them, and does not depend upon their rank; so that the rank of staff officers of the Navy is usually.operative only in determining the relation of the different officers in the service to each other, in matters of precedence, privileges, and the like, and is generally-called relative rank. (Rev. Stat., §§ 1471-1488, 1556.)

Grade is a step or degree in either office or rank, and has reference to the divisions of the one or the other or both, according to the connection in which the word is employed.

Thus, section 1129 of the Revised Statntes provides that all vacancies in the grade of major, in the Adjutant-General’s Department, shall, when filled, be filled by selection from captains of the Army. In that department the grade of major is the rank of the thirteen assistant adjutant-generals of the lowest rank; and therefore grade there refers to rank. Section 1168 provides that all original vacancies in the grade of assistant surgeons shall be filled by selection, by examination, from among the persons who have served as staff or regimental surgeons of volunteers in the Army of the United States during the late war; and in that section grade refers to office, as no rank is mentioned.

By Revised Statutes, section 1094, officers on the retired list of the Army compose part of the Army of the United States,. and therefore no one can be upon that list who is not an officer appointed as required by the Constitution, Art. 2, § 2. But being such officer, thus appointed, of any grade on the active list, be may be retired with a rank higher or lower than that, which belongs to his office whenever Congress sees fit so to provide. Congress cannot appoint him to a new and different office, because the Constitution vests the appointing power in the President with the advice of the Senate, or in certain cases in the President alone, the heads of the executive departments, or the courts of law; but Congress may transfer him to the retired list, and may change his rank and pay at any time, without coming in conflict with that provision of the Constitution.

Congress has frequently exercised the power of changing the mere rank of officers without invoking the constitutional power of the Executive to appoint the incumbents to new offices. But when it has been the purpose to place on the retired list one who has been discharged from service, who no longer holds a.n office in the Army, Congress has provided for his restoration or reappointment in the manner pointed out by the Constitution, generally by the President alone, and then has authorized his retirement. Such was the case of Major Collins. (14 C. Cls. R., 568, and 15 C. Cls. R., 22.) In some cases Congress has provided for the appointment, in the constitutional manner, of an officer upon his retirement, to a higher grade of office than that which he held on the active list. (Act June 26, 1876, 19 Stat. L., 60, ch. 114.)

In the present case, the claimant being a colonel in the line of the Army, his retirement 'with the rank of major-general, under the act authorizing it, did not confer upon him a new office, and, therefore, did not make him a major-general. He remained a colonel of cavalry, to which office he had been duly appointed, and he acquired only new and higher rank by the act of Congress authorizing his retirement. It was within the legislative power of Congress, under the Constitution, to change his rank at any time, and this they did by the Act March 3, 1875 (18 Stat. L., 512, ch. 178, § 2), wherein it is provided that “all officers of the Army who have been heretofore retired by reason of disability arising from wounds received in action shall be considered as retired upon the actual rank held by them, whether in the regular or volunteer service, at the time when such wound was received, and shall be borne on the retired list and receive pay thereafter accordingly.” This reduced the rank of the claimant on the retired list from that of major-general to that of brigadier-general, which was the rank held by him in the volunteer service at the time when his wound was received, but left him still in the office of colonel of cavalry.

The order of the War Department of March 23, 1875, which styles the claimant “brigadier-general,” “formerly major-general,” refers, by those designations, only to his rank, and not to his office. His rank was all the order was dealing with, and it had no reference to official appointment.

It is alleged on the part of the claimant, as before stated, that Congress undertook to remove him from the office of major-general and to appoint him to the office of brigadier-general, which they have no constitutional power todo, and it is claimed that he is still a major-general, and entitled to be paid as such. But we have shown that the claimant was not appointed to the office of major-general; that he still retained, on the retired list, the office of colonel of cavalry; that the rank which was conferred upon him by act of Congress upon his retirement was in no sense a constitutional appointment to a new office; and that the same power which gave him that rank could take it away. His rank having been reduced from that of major-general to that of brigadier-general, his retired pay, which is controlled by rank, is reduced accordingly. As he has already been paid the salary of his rank, his petition must be dismissed.  