
    MIMMACK’S CASE.
    Barnard P. Mimmack v. The United States.
    
      On the Proofs.
    
    
      An officer in the Army is guilty of drunkenness on duty. To escape a court-martial he writes out his resignation leaving the date blank, and authorizes his commanding officer to fill in the date and forward the resignation to the War Department if he again drink intoxicating liquors. Being again drunk, his commanding officer fills in the date and transmits the resignation. The President accepts it, and notice is transmitted to the officer. Thereupon he appeals personally to the President, who revokes his former order of acceptance. ' But the Secretary of War and the General of the Army do not carry out the order of revocation, and the officer enlists in the Marine Corps. Another President coming into office nominates a successor to the officer, and the Senate confirms the appointment. The officer, however, now claims that by the revocation he was restored to his position and is still legally entitled to it; and he brings his action for all of the pay accrued.
    
    
      The Act August 5,1861, (12 Stat. L., p. 316, § 12,) definitely fixes tlie time when, and the means by which, an officer shall cease to belong to the Army by resignation. When he thus ceases to belong to it, he can only be restored by a new appointment. The President’s revocation of the order . accepting his resignation will not work his restoration.
    
      The Reporters’ statement of the case:
    The court found the following facts :
    In May, 1868, the petitioner was a captain of the Thirtieth Begiment of Infantry and brevet major, stationed and on duty at Fort Sidney, in Nebraska, which post, with others, was under the command of General Potter.
    Previous to the 10th of May, charges, with specifications, of drunkenness on duty, &c., were preferred to General Potter against the petitioner, and he then said that, on condition the charges should not be acted upon, he would place his resignation in the hands of General Potter, to be held by him, and not forwarded to the War Department, if he should entirely abstain from the use of intoxicating liquors; and on the 10th of May the petitioner inclosed his resignation to General Potter, in a letter, stating that the resignation was without date, and authorizing General Potter to place it in General Augur’s hands, to forward to the War Department should he, the petitioner, ever become intoxicated again. And General Potter sent the resignation and letter of the petitioner to General Augur, and informed him of the understanding had with the petitioner, and above stated.
    Previous to October 3,1868, the petitioner was again intoxicated on duty, and was, by excess in drunkenness, confined to his bed in a state bordering on. delirium tremens, and General Potter placed him under arrest, and ordered him to turn over the company’s property in his hands. And, by letter dated October 3,1868, General Potter informed General Augur that the petitioner had again broken out drinking hard, and that he had placed him under arrest, and ordered him to turn over the company property.
    On the 5th day of October General Augur forwarded the petitioner’s resignation, with the date filled up by u October 5, 1868,” to the War Department. This date was not filled upr by the petitioner, nor was he informed of the communication by General Potter, nor of the fact that his resignation was to be forwarded to the War Department.
    On the 29th day of October, 1868, the resignation of the' petitioner was accepted by the President, to take effect from that date, and notice of the acceptance of that date was sent to the petitioner and received by him November 8, 1868. That the President, at the time of accepting it, had been informed of the manner in which it had been lodged with General Potter, or of the fact that the date had.been filled by a third person, or of any of the circumstances connected with the resignation, was not shown.
    
      On the 18th of November, 1868, the President promoted First Lieut. Appleton D. Palmer to be “ captain in the Thirtieth Eegiment of Infantry,” “ vice Mimmack, resigned,” and notice thereof was sent by letter to Captain Palmer, of that date, but he was not then commissioned.
    ' On the 8th of December, 1868, First Lieut. Appleton D. Palmer was placed on the list of nominations made by the President to be sent to the Senate.
    On the 11th of December, 1868, the President, on the petitioner’s application, revoked his acceptance of the resignation of the petitioner, and ordered him to duty, and notice thereof was given to the Secretary of War.
    On the 12th of December, 1868, a report was made to the President of the facts of the case by the War Department, and on the 24th of December, 1868, the report was returned to the Secretary of War by the President for action under the order of December 11, 1868.
    The report and the direction of the President were 'referred to the General of the Army, and he requested that, before an order was issued, the opinion of the Attorney-General might be obtained as to the legality of the President’s revocation of his acceptance of the petitioner’s resignation.
    On the 30th of December, 1868, by the direction of the President, the name of First Lieut. Appleton D. Palmer was stricken from the list of nominations made by the President to be sent to the Senate, and the Secretary of War was notified thereof.
    On the 4th day of January, 1869, the case of the petitioner, with the papers relating thereto, were submitted by the Secretary of War to the Attorney-General, who, on the 4th day of February, 1869, gave it as his opinion that the President’s revocation of his acceptance of the petitioner’s resignation had not the effect of restoring him to his former position in the military service.
    On the 13th of February, 1869, the opinion of the Attorney-General and the papers containing the President’s order were sent to the General of the Army, and he declined to permit his name to be used in promulgating the order, as in his opinion it was illegal, and he was sustained in that by the opinion of the Attorney-General.
    On March 11, 1869, President Grant nominated First Lieut. Appleton D. Palmer to the Senate, as follows :
    
      “ Washington, March 11, 1869.
    “ To the Senate of the United, States :
    
    [Extract.]
    “ I nominate the officers herein named for promotion in the Army of the United States :
    “ THIRTIETH REGIMENT OE INEANTRT.
    4‘First Lieut. Appleton D. Palmer, to be captain, October 29,1868, vice Mimmack, resigned.
    # # * # * *
    
    “U. S. GRANT.
    “ Note. — These officers received, daring the recess of Congress, letters of promotion, giving them the rank for which they are above nominated.
    “President Johnson, however, directed that their names should be struck from the list of nominations, as he had ordered the restoration of Captain Mimmack, by whose resignation the vacancy had been created entitling them to promotion.
    “ This order of the President, upon being submitted to the Attorney-General, was decided by him to be illegal; and for the purpose of securing these officers in the rank they have already been given, and in which they would, without doubt, have been confirmed but for the order above enumerated, their names are submitted for the action of the Senate.”
    By letter of May 4,1869, from the War Department, Lieutenant Palmer whs notified of this promotion, but it was not acted on by the Senate.
    And on the 6th of December, 1869, the President nominated to the Senate Lieutenant Palmer for promotion, as follows:
    “ Washington, December 6,1869.
    “ To the Senate of the United States:
    
    [Extract.]
    “ I nominate the officers herein named for promotion in the Army of the United States.
    “THIRTIETH REGIMENT OE INEANTRT.
    “ First Lieut. Appleton D. Palmer, to be captain, October 29, 1868, vice Mimmack, resigned.
    ######*
    “U. S. GRANT.
    
      “Note. — During the recess of Congress, November 18,1868, letters of promotion were issued to these officers, giving them the rank for which they are now nominated, and their names were submitted to the President, to be sent in to the Senate, December 8, 1868.
    “On December 30, 1868, President Johnson' directed that their names should be struck from the list of nominations, as he had ordered the restoration of Captain Mimmack, by whose resignation the vacancy had been created entitling them to promotion.
    “ This order of the President, upon being submitted to the Attorney-General, was decided by him to be illegal; and for the purpose of securing the officers in the rank they have been already given, and in which, without doubt, they would have been confirmed but for the order above mentioned, their, names are submitted for the action of the Senate.
    “ On March 11, 1869, a new nomination, with a statement of the facts, was prepared; but as the Senate failed to take any action, it is not known whether it ever reached that body.”
    And thereupon the Senate acted as follows:
    “In Executive Session, “Senate oe the United States, iL December 22,1869.
    [Extract.]
    “ Resolved, That the Senate advise and consent to the appointment of the following-named persons, agreeably to their nominations respectively, viz :
    “EOR PROMOTION IN THE ARMY OE THE UNITED STATES.
    “ Thirtieth Regiment of Infantry.
    
    “First Lieut. Appleton D. Palmer, to be captain, October 29, 1868, vice Mimmack, resigned.
    ^ ^ -H*
    “Attest:
    “GEO. C. GORHAM,
    “ Secretary.”
    On the 19th of February, 1869, the petitioner enlisted in the Marine Corps, and served therein until the 27th August, 1869, when he was transferred to the United States ship Lancaster, and served as clerk, and then secretary, to the commanders of squadrons to May 22, 1872; and in the time specified he received as pay $2,344.09.
    On the 2d November, 1872, the petitioner was appointed a clerk in the Second Auditor’s Office, and served therein till August 16,1873, when he was appointed a clerk in the Fourth Auditor’s Office, and up to June 30, 1874, he had received pay as clerk as aforesaid to the sum of $2,082.49.
    
      Mr. Albert Pike for the claimant:
    The President had the power, the vacancy not having been filled, to revoke or recall his acceptance of the resignation, if we concede that the claimant did, by the paper in question, actually resign his office. The Attorney-General held that by the acceptance the claimant ceased, eo instanti, to be in the military service as completely as if he had never been in it. “The effect which he intended it should have it has had,” he said. Aliqiiando dormita-t. The Judge-Advocate-General has decided that such a revocation is not in the nature of a new appointment, and needs no renomination or confirmation by the Senate. In Montgomery v. The United States the court decided that revocation by the President of a summary dismissal by his order of a military officer, nearly a year afterward, was valid. The court held that “an order of the President dismissing a military officer may he revoked by the same President that issued it; and if the office be not filled at the time of revocation, and if the pay thereof has not been paid lawfully to another, the dismissed officer will be entitled to the office and to the pay ad interim.” By such a dismissal the officer was “as completely out of the service as if he had never been in it.” Certainly as completely so as when the President accepts a resignation. If “the effect that the party intended his resignation should have it has had,” when accepted, the effect that the President intended his dismissal should have it has had. The court also held that if, at the time of the revocation, the office was filled by another, the revocation would remain suspended until a vacancy should occur. In that case the office had been filled by a nomination confirmed by the Senate, and a commission ready for delivery. If the President could, nevertheless, revoke the dismissal, he surely could revoke his acceptance of a resignation. And tbe decision of the Judge-Advocate-General shows that such was the practice.
    The law on the point decided by the Attorney-General is directly the reverse of what he supposed it to be. “If a man comes in an open assembly of the corporation, and there resigns his office, and declares that he will not continue in it longer, and desires them to accept his resignation, and they accept it and elect another in his room, it is a good resignation. * * *
    
    In London, the aldermen send letters to acquaint the lord mayor and court of aldermen that they resign; and, if another be elected in their place, it is a good resignation; indeed, they may revoke it before their place is supplied.” (Gh. Barou Hale in Rex v. Mayor of Rippon, 1 Ld. Raym., 563; S. O., 2 Salk., 433.)
    In the report in Salkeld the decision is thus given: “And-this declaration in a corporate assembly was held good, especially since the corporation accepted it and chose another in his place; but till such election he had power to waive his resignation, not afterward.”
    Mr. Crispe, common serjeant of London, said that Sir Thomas Allen sent a letter, &c., that he resigned his place; but before another was elected, he came and disavowed it. A military officer is not out of the service by the acceptance of his resignation. For, if he leaves his post before he receives notice of it, he is liable to the penalties of desertion. (12 Stat. L., 316.) In the case of a civil office, no acceptance of a resignation is necessary. It takes effect when received by the party to whom it is properly addressed. When made to the President, he cannot refuse to receive it. (The United States v. Wright, 1 McLean, 509; Gates v. Delaware County, 12 Iowa, 405; People v. Porter, 6 Gal., 26.)
    When received, it has precisely that finality which resignation of a military office has when accepted; for in each case nothing remains to be done. Yet it is common for such resignation of a civil office to be withdrawn, although it could equally be said of it, when received, that “the effect which the party intended it to have it has had,” and that, by its receipt, as by delivery of a deed, “ the party was as completely out of office as if he had never been in it.”
    A prospective resignation is an intention, or at least a promise, to resign, and may be withdrawn before the time fixed; and after it is accepted the party may withdraw it by consent of the party accepting, where no new rights have intervened. (Biddle v. Willard, 16 Ind., 66.) The office of captain in the Thirtieth Infantry, supposed to have been resigned by Mimmack, had not been filled when the President recalled his acceptance. Lieutenant Palmer had received a letter of appointment, and had not been even nominated to the Senate. The letter of appointment did not make him a captain. He had not been nominated on the 10th of February, 1869, and -if nominated afterward, during the session, was not confirmed. His appointment therefore expired by its own limitation on the 4th of March, 1869, and after that, at least, there was and continued to be a vacancy, if there ever had been one. The constitutional power of appointment has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission. When the commission has been signed by the President, the appointment is made. The appointment becomes complete upon signature of commission. (Marhiry v. Madison, 1 Cranch; United States v. Le Baron, 19 How., 73; United States y. Banlc of Arkansas, Hemp., 460.) The appointment of a paymaster is complete when made by the President and confirmed by the Senate. (United States v. Bradley, 10 Pet., 344.) The revocation of his acceptance of Mimmack’s resignation by the Commander-in-Ohief of the Army, and his order that he should be returned to duty recalled, of necessity, the letter of appointment of Lieutenant Palmer to act in his stead and as captain of his company. No one can deny the power of the President to recall that appointment. He not only did recall it by an order that necessarily annulled it, but he refrained from renominating Lieutenant Palmer for promotion. He could not nominate him after deciding, by his revocation of acceptance of Mimmack’s resignation, that there was no vacancy. Captain Mimmack having been restored by the revocation, in fact never having been out of the service, because by the revocation the acceptance was non menu, made never to have been, his place never was lawfully filled, and he is entitled to his pay and allowances for the whole time.
    When the resignation was forwarded, the claimant did not assent to its being sent. Its transmission was not his act. He had agreed that it might be sent if he should ever become intoxicated again. Such a condition, to last all a man’s life-time, was void. If it had! been valid, he could not be condemned unheard.; and he could have at any time revoked the agreement contained in the paper, or rather evidenced by it.
    The condition was not lawful, nor the agreement enforceable. No superior officer is at liberty to engage in the busiuesss of taking such pledges for good behavior. Imagine the General of the Army holding such, signed by all the officérs in the service, and handing them in as resignations on his own mere statement that all had “ broken out drinking very hard,” and this based wholly on information from others !
    The resignation was not placed in the hands of General Potter as an escrow. For when a deed so intrusted is delivered, on the occurrence or performance of that on which its delivery was to be made, it takes effect as of the day when it was made and deposited, even if both parties are dead. (Graham v. Graham, 1 Yes. Jr., 275.) It was therefore nothing. A resignation is valid by virtue of the'consent — the present consent — of the party who resigns. Here there was no consent of Mimmack. He had consented, five months before, that it should be his resignation,- and be forwarded, if he should be guilty of a particular act. If that act was not an offense the legal consequence of which was forfeiture of the office, the legal penalty cashiering or dismissal, the agreement was void for want of sufficient consideration.
    And if the act was of a nature to forfeit his commission, was an offense, an act unbecoming an officer and gentleman, could the consequences of it be visited on the party merely on Potter’s allegation, whether based on information or purporting to be on his own knowledge, without notice to the party accused and opportunity to be heard 7 The thing is simply monstrous. On the latter hypothesis, the resignation on condition simply agrees that if the party forfeits his commission, it shall be forfeited. It stipulates simply for the legal consequence of the offense. On the former, it stipulates for an act that does not involve forfeiture of his commission, that disproportionate consequence, and therefore more peremptorily requires notice, hearing, trial, and proof before the penalty shall be inflicted. If a deed of land were made, or a promissory note, without date, and deposited as an escrow, to be delivered to the person named as grantee or payee, in case the maker should ever commit a forgery or bet at faro, could the depositary deliver it upon information that tbe maker had done the specified act ? And it is eren a stronger case, when the act, if committed, is to work forfeiture of office, rank, character, and honor — a judgment u contra fortundm armati, contra pudorem.” The resignation was not an escrow; because a deed is such only when its delivery is dependent on something to be done by the grantee. If the maker has a right to reclaim it, it is no escrow. (Fitch v. Bunch, 30 Cal., 213; James v. Vanderheyden, 1 Paige, 388.)
    
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants:
    The resignation was valid, absolute, without fraud or mistake, and its acceptance placed him outside of the military service of the United States, to which he could be restored only by nomination of the President and confirmation by the Senate. The service and payment in the Navy and the civil service are inconsistent with a position in the Army, and the claimant is estopped from asserting that he has held any such position since the 19th February, 1869. The resignation was not obtained through duress or fraud, and is perfectly valid. It was given, while the charges and specifications were in General Potter’s hands, for the purpose of preventing a court-martial, the probable result of which was best known to Mimmack himself. He never made any effort to recall the resignation or to revoke the authority which he gave to General Potter until after the happening of the contingency which had rendered the resignation absolute. The resignation became absolute by Mimmack’s intoxication, and was of the same force and effect as though Mimmack had written it on the 3d October, 1868, and had given it to General Potter, with express directions to forward it to the War Department.
    The conditions contained no stipulation for a public trial or any other method of proof of the intoxication, because his whole effort was to avoid a public exposure of his habits; and the method and amount of proof were left entirely to the discretion of General Potter; consequently it was not important that Mimmack should have knowledge of its transmission or should eonsent to it. He reposed great trust in General Potter, and can hold him strictly responsible for the manner of its exercise; but it is idle for Mimmack to claim that the contingency was unlawful, (§ 26 of the Army Regulations;) that it never happened ; that he was entitled to a public trial; that his consent on the 3d October was necessary to make it valid ; or that the consideration upon which it wras given was insufficient, when the terms of the condition were “ should I ever become intoxicated again.” When General Potter in good faith forwarded the resignation, he was acting as Mimmack’s agent ; his authority had become complete; and it was Mimmack’s own act. By the acceptance of the resignation and notice to Mimmack, his connection with the Army ceased; he was not a deserter when he left his post, was no longer subject to orders from his superiors nor in authority over his inferiors; his rights and his duties alike terminated. Thereupon his junior officers acquired rights of promotion which could only be affected by the refusal of the Senate to confirm their nominations. ■ The Act March 30, 1814, section 12, provides: “ From and after the passing of this act promotions may be through the whole Army, in its several lines of light artillery, light dragoons, artillery, infantry, and riflemen, respectively, and that the relative rank of officers of the same grade belonging to regiments or corps already authorized, or which may be engaged to serve for five years, or during the war, be equalized and settled by the War Department agreeably to established rules.” By the foregoing act the executive regulation, in force at its passage, relative to Army promotions was therefore to be the law on that subject. The following was the regulation in question: “ Original vacancies will be supplied by selections, accidental vacancies by seniority, except in extraordinary cases, (disability or incompetency of the senior officer.) Promotions to the rank of captains will be made regimentally; to that of field appointments, by line;‘the light artillery, dragoons, artillery, infantry, and riflemen being kept always distinct.” The Act March 13,1813, section 5, required the Secretary of War to prepare a system of general regulations, which, whep approved by the President of the United States, shall be respected and obeyed until altered or revoked by the same authority, and the said general regulations, thus prepared and approved, shall be laid before Congress at its next session. The regulations prepared pursuant to this law were approved by the President May 1, 1813. The Act April 24,1816, section 9, provides that the regulations in force before the reduction of the Army be recognized as far as the same shall be found applicable to the service,, subject, however, to such alterations as the Secretary of War may adopt, with the approbation of the President. The regulations, revised con-formably to the Act April 24,1816, were promulgated by the War Department September, 1816, and no change whatever was made in the rules with regard to promotion, as above quoted. These rules, indeed, so far as regimental officers are concerned, have never been altered from their adoption to the present time. (See the different editions of the General Regulations, viz, 1821,1825,1834, 1841, 1845, 1847, 1861 and 1863.) Such was the law and the usage in respect to Army promotions till the passage of the Act March 3,1851, to which is attached a. proviso in the following term s: “ That all promotions in the staff department or corps shall be made as in other corps of the Army.” This act, it will be observed, affirms the existence of a law regulating promotion in certain corps of the Army, and declares that the same law, which had previously governed a part of, should in future be applied to the entire military establishment.
    Appleton D. Palmer, being next in line, was duly promoted to the vacancy before the President revoked the acceptance. This promotion was continued by letter of May 4, 1869, and was confirmed December 22,1869. This ratification has a retroactive effect, and exjjressly fixed the 29th October, 1868, as the expiration of Mimmack’s and the commencement of Palmer’s captaincy. By Act July 28, 1866, (14 Stat. L., p. 332, § 5,) no more than ten captains were allowed to a regiment, and by Act March 3,1869, (15 Stat. L., 318,) the number of regiments was reduced to twenty-five.
    The rights of Mimmack had been conferred by the joint action of the President and Senate; and when he had surrendered, and the President accepted the surrender, nothing but the joint action of the Senate and President could re-in vest Mm. (Vide Diibarry’s Case, 4 Opins. Attys. Gen., 124; Whitney’s Case, id., 277; Kendall’s Case, id., 306; Downing’s Case, 7 id., 99; 8 id., 223, 235, 236,' and resolution of Senate July 30, 1864.) As it is impossible for a person to belong to the Navy and Army, to perform the duties and receive the pay of both at the same time, Mimmack, by joining the Navy on the 19th February, 1869, is estopped from asserting that after that date he had any position or rights in the Army; so also as to his civil employment.
   Losing-, J.,

delivered the opinion of tbe court:

On the facts found a majority of the court are of opinion that the petitioner’s resignation was by him placed in the hands of General Potter to be acted upon in the circumstances which occurred exactly as it was acted upon, and therefore that the resignation was made by the petitioner’s authority as precisely as if he himself had delivered it to the President. The petitioner had motive enough for the arrangement he made, and made it advisedly and for his own benefit, and it was as competent for him to authorize General Potter or any one else to send in his resignation as it was for him to send it in himself.

The legal question in the case is whether the President can revoke his acceptance of an officer’s resignation after the officer has received notice of such acceptance.

Between private persons, as corporations and individuals, offices are merely contracts of agency, and subject to the rules and incidents that belong to such contracts, and in their administration all that is to be regarded is the intent of the parties; and in these civil offices, where a resignation is made and accepted, it takes its effect from the assent of the parties, and it may, by the like assent, be thereafter revoked or modified at their pleasure, so long as they do not affect third parties, and to that effect are the common-law authorities cited for the petitioner.

But in the Army the rules are different because their purpose is different, and that purpose is the systematic organization of a large body of men; and for this the fixed rules and the strict adherence to such rules are required, which will produce throughout the organization that certain and uniform action which belongs to a machine; and hence the rules and articles of war, and the statutes prescribing them, make a system of law entirely foreign to the common law.

By the general rule of the common law a resignation made and accepted is a completed transaction, for then the minds of the parties have met, and the legal consequences of their mutual assent follow. Therefore, if the mayor of a city sends in his resignation to the aldermen, and they, in the due exercise of their authority, accept it, the official life of the mayor thereupon ceases, and without more, and equally whether the mayor knows of the acceptance of Ms resignation then or never; and this is the reason of the common-law decisions cited to us by the counsel for the petitioner.

But the Act August o, 1861, (12 Stat. L., p. 316, § 12,) makes a-different rule for our Army, and fixes definitely the time when and the means by which an officer shall cease to belong to the-Army and to be subject to military rules and orders, and thus purposely an d carefully prevents the effect the common law would give to an officer’s resignation and its acceptance by the Executive.

The section of the statute cited is as follows: “Be it enacted, &e., That any commissioned officer of the Army, Navy, or Marine1 Corps who, having tendered his resignation, shall, prior to due notice of the acceptance of the same by the proper authority, and without leave, quit his post or proper duties with the intent to remain permanently absent therefrom, shall be registered as a deserter, and punished as such.” And article 5, placitum 24, of the Army Regulations follows the language of the statute.

By the provisions of this statute, after an officer has sent in his resignation, and it has been accepted by the President, the officer is still a member of the Army, and subject to military law and orders, until he has received due notice of such acceptance, be that1 a. longer or shorter time. And by absolutely necessary implication, when the officer has received such notice of the acceptance of his resignation, he is no longer subject to military law or orders, and, therefore, then is no longer a member of the Army.

The statute, therefore, departs from 'the common law, and changes the military law previously existing by making the receipt of notice of the acceptance of an officer’s resignation necessary to his discharge from the Army. And at the same time it necessarily makes such notice of the acceptance of his resignation efficient for his discharge from the Army; for upon the receipt of such notice he is to go free where he pleases, and is without more absolutely discharged from military law and orders. And that effect is the intent of the statute. And every effect of a statute is a fixed effect, and cannot be altered or qualified by the Executive in any way or degree; for if it could be in any, it might be in all, and the Executive might nullify the statutes.

Now, the facts are found that the President accepted the resignation of the petitioner, and that he received notice of such acceptance on the 8th of November, 1868. And we think that •on the receipt of such notice he was then, by the force of the • statute, discharged from the Army as completely as if he had never belonged to it; and that such intent and eifect of the statute could not be set aside by the President’s subsequent revocation of his acceptance; and that the President could not, of his own authority merely, restore the petitioner to the place in the Army from which he had been discharged by a statute.

It is stated in the finding of facts that it was not shown “ that the President, at the time of accepting the petitioner’s resignation, had been informed of the manner in which it had been lodged with General Potter, or of the fact that the date had been filled by a third person, or of any of the circumstances connected with the resignation.” , And this merely means that as to all this there was no evidence whatever. But there was nothing in the evidence to suggest any concealment of the facts of the case from any one acting in it, or that anything was done by General Potter, or any one else holding and transmitting the petitioner’s resignation, which he had not fully authorized.

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

Nott, J.,

concurring:

I do not disagree so much from the practical conclusion which the majority of the court have reached as from the principles upon which the decision is allowed to rest.

It is the fundamental law of the United States, declared by its highest tribunal, that the legislative, executive, and judicial departments of the Gpvernment shall be, each in its sphere, independent of the others, (Klien’s Case, 7 O. 01s. B.., 240,) and, .in the language of the Supreme Court, “ it is of vital importance that these powers he Icept distinct.” The decision in this case, I think, trends upon the proper sphere of the Executive, and attempts to draw within the jurisdiction of the judiciary those matters which the Constitution places exclusively within the control and judgment of the President.

The decision of the court rests upon the 'premise that an officer of the Army had resigned, that his connection with the Army had been severed by the acceptance of his resignation, and that the judiciary may pass upon the legality of the method by which he was restored to the service. But this assumption involves the entire legal consequences of the case. Whether an officer of the Army has resigned or has not resigned 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. The Constitution and the laws thereunder relating to the Army leave the determination of that question exclusively with the Executive, and the judiciary must take the fact as he decides it to be.

It is conceded that if the President should accept a resignation in form, which was not a resignation in fact, he might revoke his acceptance and restore the officer to his position. If the presumed resignation were a forgery or the writing of one actually insane, no one disputes but that the President might undo that which he erroneously .. Conversely, if the President should refuse to annul his acceptance, I apprehend that no one would say that the judiciary could inquire into the matter, and hold the resignation a nullity and the acceptance void, and the officer still in the service. But these admissions are only another form of saying that the President is the exclusive judge of what is and of what is not a resignation.

And that is the question involved in this case. A paper was left in escrow with an officer. In form it was imperfect and incomplete. The holder was authorized to perfect it in a certain contingency, and transmit it for the Executive’s action. Before it could become a resignation — that is to say, the legal act of the person executing it — those specified conditions had to be complied with. It was transmitted to the President. The blank in it had been filled. The contingency was said to have happened; but whether all of this was so, and whether it in fact became a resignation, are issues which no court of law is authorized to try. Those issues were submitted to the only power having authority to deal with them, and that power in fact determined that the resignation was no resignation, and that the previous acceptance was error and should be annulled. Can the judiciary now assume to try the question whether the President erred in his judgment 1 Can it decide that, in the matter of an officer’s connection with the Army, its judgment is better than that of the Executive ?

The legal peculiarity of the military service is that whoever enters it cuts himself off, so far as profession and calling are concerned, from judicial redress, and indeed from all civil rights. He cannot go or come where he would; his time, his preferment, his compensation, his liberty, and indeed his life, are subject to the disposal of one man. No courts are open to him as a soldier. His acquittal by a court-martial is nothing until approved by the power above, and may be annulled, and even reversed. Further than this, the President may also end his professional career by a word, and by his simple order dismiss him from the service. From a civilian’s point of view these powers are immense, and the surrender of these rights the severest hardship. But every one knows that this is the state of the case, and no one doubts that all of these powers are actually confided to the Oommander-in-Ghief.

And it is indispensable that this remain so. The judiciary can never undertake to determine these questions. It must take the status of an officer as it is left by the only power having the authority to determine it 5 and when, as in this case, that power decides that a resignation was not a resignation, and that its acceptance shall be revoked, the courts must receive that action as conclusive.

It is true that there is a statute which regulates resignations, and in effect declares that an officer shall not be out of the Army until his resignation has been accepted and he notified of it. But this statute does not affect the power of the President. Its design or purpose is merely to prevent an officer from severing his connection with the Army on his own motion. It keeps him in the Army until the President permits him to go out. It is also true that there is here a veritable paper, in form and terms a resignation. But it appears at the same time, aliunde the written instrument, that the writer did not deliver it to the President, and that without the happening of certain events it in contemplation of law never was delivered. It was not a forgery, it was not the writing of a lunatic, it was not procured by duress, it was not stolen from the officer’s trunk, and yet there was something to be determined before it became the officer’s obligatory act. That extrinsic fact had to be determined by somebody, and that somebody was the President, and it was lawful and eminently just for bim to allow the officer a hearing in regard to it.

Taking this case as I find it — that is, taking the status of the officer as the President has declared it to be — I find that Captain Mimmack did not resign in May, 1868, and that on .the 24th December, the day of the President’s final act of revocation, he was still a captain in the Thirtieth Eegiment of Infantry-Pursuing the inquiry, I find, by the action of the President, that on the 6th day of December, 1869, he ceased to be an officer in the service. It is true that the President did not then in form dismiss him, but the President might have done so, and his decision that Captain Mimmack was not then in the service bound Captain Mimmack and binds this court.

It was urged by the claimant’s counsel that the object of the-suit was to establish the fact that Captain Mimmack has been and still is an officer in the Army. I fully agree with the majority [of the court- that no such suit can be maintained, and that no such question can be tried. Neither under the statute conferring our jurisdiction, nor in any court of the common law, nor in any proceeding by the petition of right, was it ever heard that a man could bring his action against the Government or against the Crown to obtain possession of an office. As regards certain civil offices, one individual may bring an action against another individual for ouster, but never has it been supposed that any person could bring such an' action against the state. The position of the claimant, and the position of the majority of the court, though at variance, both singularly rest upon the same foundation, and that is that the judiciary can assume the powers of the Executive, and determine whether an individual holds or does not hold a military office. - For the same reason that I dissent from the majority of the court, I decide against the demand of the claimant.

Eichaedson, J., was absent when this case was decided.  