
    William Reynolds v. The United States.
    
      On the Proofs.
    
    
      On the 28th March, 1865, an officer in active service is dismissed hy order of the President. On the 27th June the order of dismissal ‘ ‘ is revoked, and he is honor
      
      ably discharged the service.of the United States as of the date of same.” On the 20th July the order of revocation is amended so as to read: “And he is restored to his command, with pay from the date at which he rejoins his regiment for duty.’’
    
    .When an order of the President, which dismisses an officer from the military service, is simply revoked, the officer will be entitled to pay ad interim under Quartermaster Smith’s case, 2 C. Cls. K., p. 206, and Captain Winter’s case, p. 136, ante. But when the order of restoration, at the request of the officer, is amended so that instead of being “ honorably discharged,’’ he “ is restored to his command with pay from the date at which he rejoins his regiment for duty,” he must be deemed to have accepted voluntarily the condition imposed.
    Mr. L. G. Hine for the claimant:
    The claimant was captain in the volunteer army of the United States on, and continuously for some weeks prior to, March 15, 1865, and was paid as such. On that date an order was issued by General Ord, commanding the army of the James, in which the claimant was serving, dismissing him from the service, subject to the approval of the President. This order was received by the claimant five days thereafter, and was confirmed by the President on the 28tb of same month. The claimant at once thereafter applied to the President for a trial as provided for by section 12 of the act of Congress approved March 3, 1865, entitled “An act to amend the several acts heretofore passed to provide for enrolling,” &c., (13 Stat., 489.) The President thereupon, through the Adjutant General of the army, referred the claimant to a military commission for trial, which resulted in his acquittal. The President thereupon, on the 27th day of June, 1865, revoked said order of dismissal, and honorably discharged the claimant as of the date of the order of dismissal. This order of revocation was so amended by the President, on the 20th day of July, 1865, as to read :. “ And he is restored to his command, with pay from the date at which he rejoins his regiment for duty.” Upon this amended order the claimant resumed his rank and duty in his regiment, and continued in it until its final muster out of service. The United States refuses to pay him for the time intervening between the date of his conditional dismissal by the general commanding the army of the James and the date he rejoined his regiment for duty, to wit, from March 15, 1865, to July 21, 1865, a period of'four months and five days.
    The order of General Ord of March 15, 1865, was inoperative until confirmed by the President, and thus made the order of the President. Such confirmation was not until March 28, 1865. It will not be disputed, then, that the claimant was entitled to pay and allowances from March 15, 1865, to March 28, 1S65, a period of thirteen days.
    The application of the claimant to the President for trial in accordance with the provisions of section 12 “ of the military law ” approved March 3, 1865, (an act entitled “An act to amend the several acts heretofore passed to provide for the enrolling,” &c., 13 Stat., 489,) had the effect to hold in abeyance the order of dismissal until such trial was concluded; or if such trial hád not been given by the President within six months after the application for it, then the claimant’s application under said act of Congress worked a revocation of the order of dismissal. The fact that the claimant was referred to, and appeared before, a military commission, and not a court-martial, was no waiver of his rights under said act of Congress. The additional fact that said military commission not only did “not award dismissal or death as the punishment of such officer,” but did, “ after mature deliberation, decide that the defence of the accused is satisfactory,” ■declared, in effect, in the language of said act, that “ the order of dismissal shall be void.” For the President, through the Adjutant General of the army, elected to refer the case to a military commission, and thereby the government became bound by its finding and cannot take advantage of the technical objection that the claimant’s trial, under said act, should have been before a court-martial.
    And further: The revocation by the President of his order dismissing the claimant clearly destroyed the legal effect of said order of dismissal, and that moment left the accused in the service as though he had not been dismissed. To revohe is to recall, to reverse, to draw back, and hence to annul or destroy the effect of the act revoked. The subsequent clause of said order of revocation, honorably discharging the claimant as of the date of the order of dismissal, is null and void, so far as it attempts a retroactive effect. The President has no power to discharge an officer of a date prior to the time of the actual issuing of the order of discharge. He has no authority or power of his own motion to confiscate the pay of an officer ; and as the effect of said order of revocation'was to nullify the order of dismissal, it reinstated the claimant in the service, and gave him the right to his pay and allowances up to that date, to wit, June 27,1865, when in the order of revocation there was included an order for his honorable discharge.
    But further: The order of the President of July 20, 1865, amending said order of revocation so as to read “ and he is restored to his command, with pay from the date at which he rejoins his regiment for duty,” had the legal effect of continuing him in Ms office.
    
    The President had unquestionably the power to issue an order of discharge and to revoke such order, but there his power ended. He was not clothed with authority to annex: conditions to an order of discharge; and to contend that the President could attach conditions to an order revoking an order of discharge, would be to argue that he could accomplish the effect in the first order by issuing another, which he could not reach in the original order.
    The claimant was a volunteer officer, and was in the service by virtue of a commission from a governor of a State. The President had no control or power over the granting or withholding of that commission. He could permit or prevent an officer acting under it in the military service of the United States ad libitum. The claimant returned to the service under the same commission he was serving under when dismissed. He was not, and could not have been, required to be “ mustered in ” again, but resumed his rank and duty in the United States military service because of the President’s order annulling the several orders issued by him discharging the claimant.
    The Deputy Solicitor for the defendants :
    Conditional pardons, when compatible with the genius of our Constitution and laws, clearly fall within the conceded powers of the President. The action of the President, as commander-in-chief, in this matter of revoking military orders, is analogous to his exercise of power in granting reprieves and pardons ; and though Captain .Reynolds may not, in just so many words, have accepted this restoration to his former rank, with the condition annexed as to pay, the fact of his joining his regiment, under this order, is confessed. He then takes what advantage he can of the portion of the order benefiting him, and yet insists on his right to make what is prejudicial to him null and void. It was his own act so to release the government from the alleged indebtedness now stated in this petition. Of the President’s constitutional power to annex conditions to pardons, including, of course, all lesser modifications thereof, there can be no doubt. It has. been so adjudged by the Supreme Court. — [Ex parte Wells; 18 How.,. 307.)
   Nott, J.,

delivered-tlie opinion of the court:

This is an action brought by an officer, erroneously dismissed the service and subsequently restored, for his pay during the interval between his dismissal and' its revocation; and which it is alleged amounts to $706.

The facts so far as they need be considered are comprised in three-orders of the President, which are as follows :

“War DepaRtment, Adjutant GenbRal’s Office,
Washington, March 28, 1865.
###### # *
“ 5. So much of Special Orders. No. 74, March 15,1865, from headquarters department of Virginia, army of the James, as, upon the-report of a board of examiners, dismissed Captain William Eeynolds, twentieth New York cavalry, for disobedience of orders, neglect of duty, aDd inefficiency, is, by direction of the President, hereby confirmed.
“By order of the Secretary of War:
“E. D. Townsend,
Assistant Adjutant General.”
“ War Department, Adjutant General’s Office,
Washington, June 27, 1867..
“ 10. By direction of the President, under the special circumstances of the case, and in connection with the report of the military commission convened by Special Orders No. 53, series of 1863, from this office, so much of General [*Special] Orders No. 74, dated headquarters department of Virginia, March 15, 1865, confirmed by Special Orders No. 149, March 28,1865, from this office, as dismissed Captain William Eeynolds, twentieth New York cavalry, is hereby revoked, and he is honorably discharged the service of the United States, as of the date of same. He will receive no final payments until he has satisfied the pay department that he is not indebted to the government.
#*#*##*#
“ By order of the Secretary of War :
“E. D. Townsend,
“Assistant Adjutant General.”'
“ Wae Department, Adjutan.t General’s Office,
“ Washington, July 20, 1865.
ft ft ft ft ft '# * ft
“ 26. By direction of the President, and upon the recommendation ■of his commanding generals, so much of Special Orders No. 335, •June 27, 1865, from this office, as revoked the order of dismissal of ■Captain William Reynolds, twentieth New York cavalry, and honorably discharged him, as of the date of same, is hereby amended so as to read: And he is restored to his command with pay from the date •at which he rejoins his regiment for duty.
* * # * if *
“By order of the Secretary of War :
“E. D. Townsend,
“Assistant Adjutant General.”

The claimant now comes'into court and alleges that he rejoined his regiment under the third order, and demands that he receive the pay between the date of his dismissal and its final revocation.

Two cases have already been before this court (Quartermaster Smith’s case, 2, C. Cls. R., p. 206 ; Captain Winter’s case, ante, p. 136) somewhat similar to the case at bar. But in those, the naked question only has been determined that when the President revokes an order for the dismissal of a military officer without reservation or condition, then that the order is “ revolted from its inception,” and “ all its consequences are annulled,” and that the officer is entitled to the pay for the interval. The question now to be determined is not thus a simple one; for the order of revocation is clothed with one condition, and the order amendatory with another. The first of these is that the officer shall be honorably discharged as of ‘the date of his dismissal; the ■second that his pay shall be limited to the time at which he rejoins his regiment for duty.

If the claimant’s case had stopped with the second of these three orders, it might be a question of some delicacy whether the President ■could revoke an order as of the time of its inception, and then deprive an officer of the pay to which he would otherwise be entitled up to the time of his lawful and actual discharge, But the case does not rest at that point, for the third order is then interposed, and of that third order two things are to be observed : 1st. That it originated and sprang from the claimant’s own request. 2d. That it was accepted by him, and under it, as he had previously desired, he was restored to his command.

We think the claimant had in practical effect an option; that he was at liberty to stand upon the order of revocation, and seek whatever legal rights and remedies it gave, or to accept the amendatory order with whatever conditions and restrictions it imposed. This petition shows that he did thus accept it, apparently, without objection or protest, and we think him bound by his election.

The judgment of the court is that the petition be dismissed.  