
    HARLOW L. STREET v. THE UNITED STATES.
    [No. 15882.
    Decided March 11, 1889.]
    
      On the Proofs.
    
    The name of a lieutenant of cavalry is reported to a retiring hoard under the Act July 15, 1870, hut, before action of any kind, ie withdrawn. On January 2, 1871, one general order is issued which transfers the officer to ■ the list of supernumeraries, transfers another from the list to his place, and directs that he he mustered out. The defendants produce a paper purporting to he an order of the President, signed by the Secretary of War, dated December 31,1870, transferring the claimant to thelist of supernumeraries, but never promulgated.
    
      I. Under section 11 of tbe Act July 15, 1870 (16 Stat. L., p' 314), providing for tbe reduction of the Army, an officer was liable to be mustered out whenever a retiring board reported, and with only one year’s pay proper; under section 12 be could not be mustered out until January 1, 1871, and would then receive one year’s pay and allowances.
    II. Tbe power of command and control exercised by tbe Crown over tbe British army was placed by tbe framers of the Constitution in the bands of tbe President with only two restrictions set upon it.
    III. Tlio tenure of a military office has always-been subject to the will of tbe President, but by nsag’e has been for life or good behavior. Tbe power of removal without cause has never been asserted against an officer, and until the decision in BlalcJs Case (103 U. S. R., 227) was almost unsuspected.
    IV. It was proper for Congress to regulate and restrict tbe power of removal by tbe Acta 17th July, 1862; 3rd March, 1865 ; 17 th July 1866. (12 Stat, L., 596; 13 id., 489 ; 14 id., 92.)
    V.The purpose of tbe Act 17th July, 1866, was not to attach a life tenure or element of vested right to tbe office, but to save officers “in time of peace” from a hasty and dishonorable dismissal.
    VI.Tbe Acts 1866 and 1870 are neither in conflict nor in pari materia ; tbe one is an exercise of tbe legislative power “to malee rules for the government andregulation of the land and naval forces ; ” the other, of tbe po\\ er “ to raise and support armies.”
    VII.Tbe power of the President under tbe Act 1870, to transfer and muster out officers, did not expire on the 31st December, 1870, but continued until tbe prescribed reduction of the Army was accomplished.
    VIII.A paper found in tbe files of tbe War Department purporting to be an order but never promulgated or executed, and two days afterward supplanted by a formal order duly promulgated, can not be recognized as tbe order of tbe President.
    IX.Congress did not intend to mate tbe reduction of tbe Army in 1870 conditional upon its being done within tbe period designated by tbe statute.
    
      The Reporters’ statement of the ease:
    The following are the facts of this case as found by the court:
    I. The claimant was on the 14th day of April, 1869, duly commissioned as a first lieutenant of the First United States Cavalry, in the service of the United States, to rank as such from the 22d day of February, 1889, and was holding the rank of first lieutenant of cavalry in the Army of the United-States on the date and at the time of the issuance of the general order hereinafter mentioned.
    
      II. The claimant was reported as unfit for the proper discharge of his duties from other causes than injuries incurred or disease contracted in the line of his duties by department commander Lieut. Ool. George Crook, of the Twenty-third Infantry, on the 27th of October, 1870, and by the General of the Army on the 10th of November, 1870, under the eleventh section of the Act of July 15, 1870, herein referred to; his name was submitted to the board organized in pursuance of said act on the 10th of November, 1870; on the 17th of November, 1870, the board addressed the following letter to the Adjutant-General of the Army, who made the following reply :
    “ Washington City, D. C., November 17,1870.
    “ To Brig. Gen. E. D. Townsend,
    
      “Adjutant-General U. 8. Army: Sir : I have the honor to inform you that First Lieut. Harlqw L. Street, First Cavalry, has been reported to the board constituted in accordance with section 11 of the “ Act making appropriations for the Army,” etc., as unfit for the proper discharge of his duties from other causes than injuries' incurred or disease contracted in the line of his duties.
    “ I am directed by the president of the board to request • that an opportunity be given him without delay for a hearing, in accordance with the provisions of the law.
    ■“ I am, sir, very respectfully, your obedient servant,
    “Jaimes McMillan,
    “ Captain JEleventh Infantry, Recorder of the Board.”
    
    “ Adjutant-General’s Office,
    “ Washington, Nov’r 19,1870.
    “ Maj. Gen’l W. S. Hancock, Ü. 8. Army,
    
    “ President Board under seo. 11, act July 15, 1870: “General: Referring to the request of the board, dated the 17th inst., for the appearance of
    #4f. 4b Jl, Jf. Jf. .u. •ft" Vr W TV TV 7T
    •ft" Vr W TV TV 7T
    1st Lieut. Harlow L. Street, 1st (J. S. Cavalry,
    
      * * * * # * #
    I have the honor to inform you that the stations of the officers named are so remote as to make it impossible for the board to consider their cases, and' therefore the Secretary of War has directed that the officers be not ordered to appear. Their cases, so far as the board is concerned, are viewed as , closed.
    “ Your ob’t serv’t,
    “ E. D. Townsend,
    “ Adj’t General.”
    
      On the 22d of November, 1870, the board returned certified extracts and other papers in the case of First Lieut. Harlow L. Street, with the following letter:
    “Room No. 30, Winder’s Building,
    “ Washington, D. 0., November 22,1870.
    “ To the Adjutant-General oe the Army :
    “ General : In compliance with instructions from the Secretary of War of the 19th instant, I have the honor to return herewith certified extracts and other papers in the cases of: *.***# * #
    “ First Lieut. Harlow L. Street, First Cavalry.
    * # # # # * *
    
    “ I am, general, very respectfully, your obedient servant,
    “Winfield S. Hancock,
    “ Major-General U. 8. Army, President of Board.'’’’.
    
    III. The name of claimant was then placed upon a list for transfer to supernumerary list, as made from lists submitted in connection with the board of which General Hancock was president, being the board organized under section 11 of the act of July 15, 1870.
    IV. On January 2, 1871 (which was on the week day Monday), the following order was issued by the Secretary of War:
    [General Orders No. 1.]
    “ War Department, “Adjutant-General’s Office,
    
      “Washington, January 2, 1871.
    “ By direction of the President, the following officers of the Army are transferred, assigned, or mustered out of the service, to take effect from the 1st instant:
    I. Transfers to the list of supernumeraries, under section 12 of the act approved July 15, 1870:
    *.w. -V. aN .v, Jr, iT "A" TP •ft*
    iT "A" TP •ft*
    “ First Lieutenaut Harlow L. Street, First Cavalry.
    # * * .# * # #
    “ II. Transfers and assignments to fill vacancies to the present date:
    ^ ^ ^ * *
    “First Lieutenant Max Wessendorff, unassigned, to the First •Cavalry, vice Street, transferred to the list of supernumeraries. *******
    “III. Unassigned officers whose commissions have expired under section 12 of the act of Congress approved July 15,1870, and who are honorably mustered out of the service:
    '* # # * # . * #
    “ First Lieutenant Harlow L. Street.
    ##*##**
    “ By order of the Secretary of War.
    “E. D. Townsend,
    “ Adjutant- GeneralP
    
    The names of all the officers who were mustered out of the service as supernumeraries under Act 15th of July, 1870 (16 Stat., 315, § 12), are contained in said order, January 2, 1871, which was the only order promulgated discharging or transferring officers to the list of supernumeraries under the section.
    Y. There appears among the files of the War Department tbe following order; but it does not appear that it was ever issued or promulgated, and the names of three officers-appear upon it who were not included in the order of January 2,1871, set forth in the preceding finding, and who were never in fact transferred; and the words “ By direction of the President the following named officers are” appear to have been erased by a pencil mark drawn through them :
    [General Orders No. 000.]
    “War Department,
    “ Adjutant-G-eneral’s Office,
    “ Washington, December 000, 1870.
    “ 1. By direction of the President, the following-named officers are transferred to the list of supernumeraries, under section 12, act approved July 15, 1870:
    ##**##*
    “ 1st Lieutenant H. L. Street, 1st Cavalry.
    # # * # * # . #
    “Approved:
    “War Department,
    
      uDedr 31st, 1870.
    “Wm. W. Belknap,
    “ Sec’y of WarP
    
    YI. At the time of the issuance of the order of January 2, 1871, the claimant was on active duty with his command at Fort Bidwell, Cal., and remained at that post on active duty until February 11, 1871, which was the date of the receipt of said order at said post, when his muster-out took effect.
    
      On the 18th of September, 1871, he was paid by a paymaster of the Army for the time he continued in service, viz, to the 10th of February, 1871, and also one year’s pay under the act of 15th July, 1870, and the payment was made upon the following stated account, receipt, and affidavit:
    “ The United States to Marlow L. Streets late first lieutenant First Cavalry.
    
      
    
    “ I certify, on honor, that the amounts‘‘charged in the foregoing account are correct aBd just, as authorized by law, and that they are rightfully due me as stated; and that I am not in arrears with the United States on any account whatsoever.
    I further certify that I have been on leave of absence-
    months,-days, during the time by virtue of-. I was
    last paid to 31st December, 1871, by Paymaster V. S. Eggles-ton, and I acknowledge to have received, this 18th day of September, 1871, of Paymaster Samuel Woods, U. S. A., in
    full of this account, the sum of $2,077.77, by check No.-,
    on-.
    “ [Signed in duplicate.]
    “H. L. Street,
    “ Late First Ideutencmt, First Regiment Cavalry.
    
    “State oe Calxeornia,
    
      “ City and County of San Francisco, set.:
    
    “Be it remembered that on this eighteenth day of September, anno Domini one thousand eight hundred and seventy-one, personally appeared before me, the subscriber, a notary public for the county aforesaid, Harlow L. Street, and made oath on the Holy Evangelists of Almighty God, in due form, that the annexed account, amounting to two thousand and seventy-seven dollars and seventy-seven cents, is accurate and just, and that all the matters set forth in the within certificate signed by him are true in substance and fact as stated; that. his place of residence is Sonora, county of Tuolumne, State of California; and that he is not indebted or accountable to the United States on any account whatsoever, and that he has not been absent with or without leave beyond the limits prescribed by existing laws for any portion of the time charged for in this account; and further, that I was on duty at Camp Bid well, when Geni. Order No. 1, was issued, dated A. G. O., Washington, D. C., 2 Jan’y, 1871, and was not furnished transportation in kind or pay in lieu thereof for any portion of the distance to my home.
    “H. L. Street,
    “ Late 1st Lt., 1st Beg. Gav.
    
    “ Sworn to the day and year above written and subscribed in duplicate.
    [SEAL.] “F. I. ThIBAULT,
    ' “ Notary PublieP
    
    The claimant was paid the sum of $117.95 upon Treasury settlement dated February 18,1881, being an amount which he was required to refuhd to the United States, the same being the difference in the year’s pay and travel pay between the amount he drew as a first lieutenant of cavalry and the amount he would have drawn if “not mounted” rates had been paid to him.
    VII. On the 14th June, 1880, the President nominated Second Lieut. Robert P. P. Wainright to be first lieutenant in the First Regiment of Cavalry, “vice Wessendorf promoted;” and on the 16th June, 1880, the Senate confirmed the appointment, and Lieutenant Wainwright was commissioned accordingly.
    
      Mr. J. M. Vale for the claimant:
    From the history of the times it is ascertained there were unemployed supernumerary officers to whom it was the intent of Congress to give employment on the active list, replacing officers less fit for the military service then on that list; but to avoid injustice resulting from erroneous and vindictive reports, or from any cause, a board was provided before which it became mandatory the accused officer should have an opportunity to appear; without which his muster-out was inhibited.
    The meaning of the legislature in a statute may be extended beyond the precise words used in the law, from the reason or motive upon which the legislature proceeds, from the end in view, or the purpose designed; with this limitation, that to-extend the meaning to any case not included in the words, the case must be shown to come within the same reason upon-which the law maker proceeded, not merely a like reason. (United States v. Freeman, 3 Howard, 556-565.)
    The Department went far beyond this rule in extending the-meaning of the legislature when, after report of Lieutenant Street by the General of the Army, the reference of that report-to the board, the request of the board directed to the Adjutant-General, that an opportunity be given Street for a hearing-without delay in accordance with the provisions of the law, his case was viewed as closed, so far as the board was concerned, and he was held for transfer to the supernumerary list..
    In the case of reported officers, the law-maker proceeded upon the theory of an opportunity for defense. In the case of’ supernumerary officers transferred from the active list to that condition by the President, and allowed so to remain until December 31, 1870, no hearing or defense was contemplated by-the legislature. In the one case a hearing and defense; in the-other no hearing and no defense.
    It is a mistake to maintain that the same reason which assured to Street a hearing and defense also permitted him to be deprived thereof. Yet to that point was the meaning of the law-maker extended when his name was withdrawn from be-, fore the board and he was held for transfer to the supernumerary list. It amounted to legislation by the Department; not the construction of an act of Congress. No warrant can be found for such action in the law; it was without warrant of' law and wholly void.
    Had Congress intended to vest in the President or in the-Secretary of War the sole power of selecting officers to be mustered out, no board would have been directed. If the President or Secretary of War had authority to select from among the officers reported which should go before the board, he had au-thoiit.y to refuse to send any there; he had authority to transfer all officers reported to the supernumerary list if be had authority to transfer one.
    The mere act of report by the commander of a department or-the General of the Army, under section 11, placed the officer so reported legally before the board. The Attorney-General has. so held. (See Op. Atty. Gen., vol. 13, 412.)
    
      Being legally there be could not be legally mustered out except under the provisions of the law placing him there. His case could not be legally closed by action of the Secretary of War. That was usurping the jurisdiction and the authority of the board as conferred by Congress. Until the board had disposed of him it had exclusive jurisdiction for the purpose and in the manner provided by law j and, failing to recommend muster out, he stood acquitted, and his status was as before report; but pending a recommendation by the board after report, and before hearing or an opportunity for a hearing, he was under the protection of the law, in pursuance of which he had been assailed, and could not be legally mustered out.
    To legally muster out of the service an officer reported as was Lieutenant Street, by the commandant of a department and the General of the Army, the following conditions must have existed:
    (1) The report provided under the law.
    (2) The officer affected by the report must have been allowed an opportunity to appear aud show cause against it before the board.
    (3) A recommendation of the board for muster out.
    In the case at bar the first condition only was fulfilled. The others were equally necessary, and their omission is fatal to his legal muster out.
    If the facts had been framed for the express purpose of a flagrant violation of the terms of the act it would have been difficult to have made them stronger by departmental action alone.
    But had the officer not been reported and under the protection of the law when thus menaced to the extent claimed, his transfer to the list of supernumeraries under General Order No. 1, dated January 2, 1871, was in contravention of law and void.
    Section 12 of the Act of July 15, 1870, provided for the transfer to this list, by direction of the President, of officers of infantry, artillery, and cavalry, and the assignment of officers upon the supernumerary list in their stead.
    It will be observed that by the express restriction of the section such transfers were limited to a date prior to January 1,1871, so that the latest date such transfer could be legally made was December 31, 1870. The supernumerary list, as it stood on the morning of the 1st of January, or at midnight December 31, was disposed of by operation of law. Executive authority could not legally intervene to alter the statute.
    On the 2d of January, 1871, by General Order No. 1, the Adjutant-General, by order of the Secretary of War, orders: By direction of the President the following officers of the Army are transferred, assigned, or mustered out of service to take effect from the 1st instant.
    Transfers to the list of supernumeraries * * * First-Lieut. H. L, Street, First Cavalry, among others.
    So, being one day after the authority for such action existed, it was void. But the issuance of the order, the official act, was delayed still one day longer, till January 2, two days after the authority had expired by limitation. This action of the Secretary of War was also in violation of the Act of July 13, 1866, providing that no officer in the military or naval service shall, in time of peace, be dismissed from service, except upon or in pursuance of a court-martial to that effect, etc., and was therefore void.
    This memorandum, now sought for the first time to be given the dignity of an order by Presidential authority, is disclosed by .the inaccuracies on its face as well as by its defacing marks, and the testimony of witnesses to be a mere memorandum which at some time has received the approval of the Secretary of War, though never pretended to be promulgated to the world or to the parties affected as an order. On its face the words giving or purporting to give the authority of Presidential sanction are erased, and it stands forth plainly for just what it is — a galley slip used by the printers in preparation of the order issued on the 2d of January, 1871.
    But it matters little how much the Secretary of War approved of the transfer of these names borne on the galley slip on the 31st of December. He ordered differently on January 2, and his alleged approval can not be taken as countermanding a subsequent order specifically fixing January 1 as the date from which the President directed the status of the officers to change from active to supernumerary, nor can his mere approval stand as an order.
    It was not contemplated by the terms of the act to transfer officers from the active to the supernumerary arm of the service by merely listing the names of the officers to be transferred.
    
      To carry out the reasonable intent of the act required a Presidential order of transfer prior to January 1,1871, and prior to that date orders relieving the officer transferred/to the supernumerary list from active duty should have reached him at his post of duty. It is submitted that no transfer to the unassigned or supernumerary arm of the service was complete and effective until the officer affected was relieved from active duty. Such transfer was contemplated by the act to be an actual corporeal transfer from a condition of employment to one of non-employment; to one in the condition exceeding the number wanted. That could not be done in the order of things so long as Lieutenant Street was actually employed on active duty. So that whatever fell short of relieving him from active duty prior to January 1, 1871, fell short of placing him on the supernumerary list, and was short of the plain letter of the act.
    The order discharging him and the order transferring him was one and the same, and he was neither actually transferred nor discharged until he received that order.
    In Allsteadt v. The United States (3 C. Cls. R., 284) this court held:
    “ When the order for his discharge was not received by him until the 29th day of April (order April 26), and as this delay of three days was by no fault of his, and the circumstances were not in his control, but in that of the Government, and is incident to official routine, we think, by the usage of the Department and its reasonableness, the time of the petitioner’s actual discharge is to be taken to be on the 29 bh of April,” etc.
    So that instead of January 1, 1871, as fixed by the Department order, being the date of his transfer, February 11, 1871, was the actual legal date; that is, one month and eleven days after authority for such transfer conferred by the act had expired by express limitation of the act.
    in the case of Rildeburn (13 C. Gis. R., 62), in which the facts, as to pretended transfer to the supernumerary list under section 12 of the Act of July 15,1879, are the same as in the case at bar, it was urged upon this honorable court by the Assistant Attorney-General that Hildeburn’s acceptance of the one? year’s pay provided for officers so transferred concluded him from questioning the regularity of his discharge. That view was adopted by the court and plaintiff’s petition was dismissed.
    
      Since that action the Attorney-General has held the opposite view in a recent similar case, that of cadet engineers discharged under the Act of August 5,1882. (See opinion, March 6,1886.)
    Street, however, did not accept his pay until September 10, 1871, when there had actually accrued and was due him over eight months’ pay. He was subsequently constrained to refund $117.95 of the money thus paid him, under a departmental ruling that the status of supernumerary officers was that of infantry and payment to him as a cavalry officer was erroneous. He contested his right to pay as a cavalry officer, not as a supernumerary officer with infantry status; and in April, 1882, under Treasury settlement, the amount by him refunded was repaid to him, so that he did not actually and finally receive all his pay due to the end of 1872 until in April, 1882, and that after a prolonged contest involving the very question presented in this action. His case presents this difference, therefore, from Hildeburn’s, and it is submitted that the doctrine of estop-pel does not operate as to him.
    An estoppel in pais in its typical character is the effect of an indisputable admission arising from the fact that the party claiming it has been induced, by the action of the party against whom it is claimed, to change his position. (Brandt v. Virginia Goal and Iron Company, 93 U. S. R., 326; Kitchen v. Dimean, 96 U. S. R., 659; Morgan v. Railroad Go., 96 U. S. R., 716.)
    The claimant, Street, never by any act of his placed the Government in a position where the doctrine of estoppel as herein laid down can be claimed against him in connection with re'ceipting for his pay.
    But issue has been taken by defendant, so far as taken at all, on the facts; estoppel has therefore been waived on defendant’s part in this case. (Philadelphia, Wilmington and Baltimore R. R. Go. v. Howard, 13 How., 301.)
    The Attorney-General has decided in Bailey’s Gase (13 Opinion?, 104), June 16,1869 : “ So long as a person is an officer of the Army he is entitled to receive the pay belonging to the office, unless he has forfeited it under some provision of law, whether he has actually performed military service or not.”
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Howard) for the defendants ;
    Under the opinion and judgment in the Hildeburn Case claimant is without any stauding in this court.
    
      It was conceded, in the opinion of this court in that case, that the order of 2d January, 1871, was in a degree irregular. It was conceded that the money was received under protest and the validity of the order of January 2, 1871, denied. Nevertheless the court held that the voluntary acceptance of the one year’s pay was equivalent to a resignation.
    The opinion in the Hildeburn Case has been affirmed in subsequent cases in this court. (Duryea v. The United States, 17 C. Cls. R., 38.)
    To ascertain, when ambiguous, the meaning of a law, the court may refer to the history of the times in which the law was passed; may consider the wrong to be righted and the remedy proposed, “but they are not at liberty to recur to the views of individual members in debate, nor to consider the motives which influenced them to vote for or against its passage.” (United States v. Union Pacific B. B. Go., 103 TJ. S. R., 79; Aldridge v. Williams, 3 How., 79; Preston v. Browder, 1 Wheat., 120.) The decision in Blalce v. National Bank (23 Wall., 308), cited by claimant, is in conformity with this view.
    Assuming the order of January 2, 1871, mustering Lieutenant Street out of the service to have been irregular and nonoperative, the appointment of First Lieut. Max Wesendorff by the President, with the approval of the Senate, to fill the vacancy, would operate as a removal of claimant and sever his connection with the Army. {Blake v. The United States, 103 U. S. R., 227.)
    In 1789 Congress affirmed the power of removal in the President alone. This power in the President has never been questioned since, either in the civil or military offices. (Gratiot’s Case, 1 C. Cls. R., 258.)
    After dismissal by the President the office becomes vacant, and can only be filled by appointment by the President, confirmed by the Senate.
    In the earlier cases in this court the power of the President to revoke the order, when made by mistake or under a misapprehension as to the facts, was recognized. (Smith v. United States, 2 C. Cls. R., 206; Winter v. United States, 3 C. Cls. R., 137; Beynolds v. United States, 3 C. Cls. R., 198; Barnes v. United States, 4 O. Cls. R., 217.)
    Since the decision in the Mimmack Case it has been repeatedly decided that when for any reason an officer of the Army or Navy loses his position, nothing short of a new appointment, confirmed by the Senate, can have the effect of restoring him to the office. (Opinion Att. Gen. Evarts, 12 Ops., 555; Dubarry’s Case, 4 Ops. Att. Gen., 603; Bennett’s Case, 19 0. Ols. R., 379; McBlrath’s Case, 12 O. Cls. R., 584; 102 ü. S. R., 12, 426; Miller’s Case, 19 0. Ols. R., 338; Badeau’s Case, 15 Ops. Att. Gen., 407; Blake’s Case, 14 O. Cls. R., 462; 103 U. S. R., 227; Montgomery’s Case, 19 C. Ols. R., 370; Bennett’s Case, 19 0. Ols. R., 379; Palen’s Case, 19 O. Ols. R., 389; McBlair’s Case, 19 O. Ols. R., 528: Vanderslicés Case, 19 0. Ols. R., 480; Corson’s Case, 17 O. Ols. R., 344 ; 114 U. S. R., 619.)
    The right of the President to remove an officer of the Army and want of power to re-establish him in his position without a new appointment, approved by the Senate, is therefore established by decisions of this court and the Supreme Court.
    It follows that a new appointment to the place of an officer of the Army or Navy supersedes such officer, is equivalent to a dismissal, removes him from office, and severs his connection therewith. (Blake v. United Statés, 10 O. Ols. R., 584; 47 U. S. R., 496; McBlrath v. United States, 12 0. Cls. R., 201; 102 U. S. R., 426.)
    Assuming the muster-out of Lieutenant Street under said order of January 2, 1871, to have been irregular, he should have protested against such action/of the President within a reasonable time.
    The petitioner in this case received his one year’s pay and allowance, not only without protest, but entered into a controversy with the accounting officers (decided in his favor) as to the amount due him under the order. He thereby recognized and assented to the action of the President in mustering him out of the service. He accepted another .position under the Government. He has not since that time. held himself in readiness to render service. His present demand was made after the lapse of many years. Even with a just claim, the application for relief must be made within a reasonable time. (Newton v. United States, 18 C. Cls. R., 435.)
   Nott, J.,

delivered the opinion of the court:

The Act 15th July, 1870 (16 Stat. L., p. 314), provided for a reduction of the Army to a force of 30,000 men. So far as the enlisted men were concerned, the method of reduction was left entirely to the discretion of the President. (§ 2.) So far as commissioned officers were concerned, four methods were prescribed. The first was voluntary resignation, accompanied by the inducements of an honorable discharge and one year’s pay and allowances. (§ 3.) The second was by placing officers upon the retired list, and for that purpose the limited number of the retired list was extended to three hundred. (§§ 3 and 4.) The third was by sending officers reported as “unfit for the proper discharge of their duties” (bat who were not entitled to be placed upon the retired list because their inability was not incurred “in the line of their duty ”) before a military board upon whose unfavorable report they were to be mustered out. (§ 11.) The fourth was by the muster out of all officers who remained supernumerary on the first day of January, 1871. (§ 12.)

These being the general purposes of the statute, the eleventh and twelfth sections more particularly provided as follows:

“Sec. 11. And be it further enacted, That the General of the Army and commanding officers of the several military departments of the Army shall, as soon as practicable after the passage of this act, forward to the Secretary of War a list of officers serving in their respective commands deemed by them unfit for the proper discharge of their duties, from any cause except injuries incurred or disease contracted in the line of their duty, setting forth specifically in each case the cause of such unfitness. The Secretary of War is hereby authorized and directed to constitute a board to consist of one major-general, one brigadier-general, and three colonels, three of the said officers to be selected from' among those appointed to the regular Army on account of distinguished services in the volunteer force during the late war; and on recommendation of such board, the President shall muster out of the service any of the said officers so reported with one year’s pay; but such muster-out shall not be ordered without allowing such officer a hearing before such board to show cause against it.
“ Sec.' 12. And be it further enacted, That the President is hereby authorized to transfer officers from the regiments of cavalry, artillery, and infantry to the list of supernumeraries, and all vacancies now existing, or which may occur prior to the first day of January next, in the cavalry, artillery, or infantry by reason of transfer, or from other causes, shall be filled in due proportion by the supernumerary officers, having reference to rank, seniority, and fitness, as provided in existing law regulating promotions in. the Army. And if any supernumerary officers shall remain after the first day of January next they shall be honorably mustered out of the service with one year’s pay and allowances: Provided, That vacancies now existing in the grade of second lieutenants, or which may occur prior to said date, may be filled by the assignment of supernumerary first lieutenants, or officers of higher grade, who, when so assigned, shall rank as second lieutenants, provided such officer shall prefer to be assigned instead of being mustered out under the provisions of this section; and officers so assigned shall take rank from the date of their original entry into the service. And •provided further, That no chaplain be appointed to posts or regiments until those on waiting orders be assigned.”

The object to be attained by the eleventh section was the dis.charge of officers who were not fit for military service and who were not deserving of the retired list. The twelfth section was comprehensive enough to embrace every officer in the Army, but it was intended for those who were fit to remain in the Army and against whom no ground for discharging them existed. Both sections gave to the discharged officer a parting gift; both were to be carried into effect within the same brief period. There may have been and probably 'were other administrative reasons not perceptible to the judiciary which rendered the machinery provided by the eleventh section desirable, and it is certain that it was resorted to by the President; but nevertheless the twelfth section gave to him ample powers to sift the personnel of the Army, and to accomplish the reduction which was the chief purpose of the statute.

There were, however, two items of difference in the two sections, which affected or might affect the officers upon whom they operated. Under the eleventh section an officer was liable to be mustered out whenever the retirin g board reported upon his case, and would then receive only one year’s pay,” which was pay proper, and did not include allowances. (Sherburne’s Case, 16 C. Cls. R.., 491.) Under the twelfth section the officer could not be mustered out until the last moment; that is to say, the 1st January, 1871, and would then receive “one year’s pay and allowances.” Both of these differences operated in favor of the supernumerary officers.

These two sections of the Act 1870 constitute the law of the case; the facts, briefly stated, are as follows:

The claimant, then a first lieutenant of cavalry, was reported by the commanding officer of his department as deemed unfit for the proper discharge of his duty by causes other than injuries incurred or disease contracted in the line of his duty, and his no me was sent before the retiring board then convened in the city of Washington. On the 17th November, 1870, the board requested that he and a number of other officers be given a hearing, as required by the statute. In reply to this application of the board the Adjutant-General of the Army wrote:

“I have the honor to inform you that the stations of the officers named are so remote as to make it impossible for the board to consider their cases, aud therefore the Secretary of War has directed that the officers be not ordered to appear. Their cases, so far as the board is concerned, are viewed as closed.”

Accordingly no notice was given to the claimant and no action was taken' by the board, and nothing further was done until the final and decisive order under the statute was issued for the reduction of this part of the Army and the discharge of all commissioned officers who were not to be permanently retained.

That order bears date and was promulgated on Monday, the 2d January, 1871, it being the first secular day of the new year. Like many orders of the War Department it contained distinct parts or divisions, and was in effect three orders with one enacting clause. The first division directed the transfer of a large number of officers to the list of supernumeraries 5 the second directed the transfer of another set of officers from the list of supernumeraries to various positions and vacancies on the active list; the third directed the muster-out of all officers then remaining unassigned. ,

The first division of this order transferred the claimant from his position in the line to the list of supernumeraries; the second transferred Lieut. Max Wesendorff from the list of supernumeraries to the position made vacant by the claimant’s transfer ; the third directed that the claimant be mustered out of the service.

Under that order the claimant was discharged fromtheserv-ice on the 10th February, 1871, and in the following September he received his year’s pay and allowances, giving therefpr the usual receipt. He now insists that the discharge or muster-out was illegal, and he seeks all of the intermediate pay of the office, amounting to $34,123.

The grounds upon which this demand is pressed are:

(1) That an officer was not liable to be proceeded against under both sections of the statute, and that if the Secretary of War transmitted his name to the retiring board, he could be mustered out only under the provisions of the eleventh section and after the hearing which it assured to all officers sent before the board.

(2) That the power of the President to transfer officers to the list of supernumeraries under the twelfth section expired on the 31st December, 1870.

At the time of the adoption of the Constitution the control of the British army was lodged ex-clusively in the Crown, with hardly a restriction set upon it, save that the continued existence of the standing army required the annual consent of Parliament. From the Mutiny Act, 1689, until Mr. Cardwell’s act, 1879, the control of the Crown remained unchanged and practically unrestricted. The system of purchase in the army formed a cheap and easy method for pensioning or providing for a retiring officer and for securing his services at exceedingly low pay. It moreover had been an established right, founded on unbroken usage for two centuries; an officer, when he won promotion, believed that he was laying up a competence for his old. age, a provision for his wife and children; and the public regarded his commission as his well-earned property, lawfully accumulated and possessed of the sanctity of a vested right. Yet in our own time we have seen a prime minister abolish the system (after Parliament had three times refused to do so) by royal warrant; which was in effect saying that thereafter the Crown would not allow officers to sell out and would not recognize or commission those who purchased.

This power of command and control the framers of the Constitution placed in the hands of the President, with only two restrictions set upon it: that Congress should have power “ to make rules for the government and regulation of the land and naval forces; ” that the appointment of officers should be “by and with the advice and consent of the Senate.’-’

The tenure of a military office has beeu from the foundation of the Government among the frailest known to the law, for it has been subject to the will of the President, and that will has been repeatedly exercised. Nevertheless a usage greatly respected and upheld by the legislative and executive branches of the Government, and which certainly should be noticed and respected by the judiciary, has made the tenure of a military office practically for life or good behavior. The power of removal as such — that is to say, without cause — has never been asserted in terms, it is believed, against an officer of the Army or Navy, and until the decision of the Supreme Court in, Blalce’s Case (103 U. S. R., 227), in 1880, was almost unsuspected.

The power to dismiss ah officer, as has been said, has been repeatedly exercised and has been recognized and sanctioned by Congress. But inasmuch as it carried with it a taint of dishonor, and was resorted to only in cases of shameful delinquency or gross incapacity,' and was deemed by those most interested as one of the severest penalties known to military law, it was proper for Congress to regulate and restrict its application under the constitutional authority vested in them. (Acts 17th July, 1802 ; 3d March, 1865; 17th July, 1866; 12 Stat.. L., 596; 13 id., 489; 14 id., 92; Blake's Case, 103 U. S. R., 227.)

Still the limitation was itself limited. The purpose of the . Act 17th July, 1866, was not to attach a life tenure or element of vested right to the office, but to save officers “in time of peace” from the ignominy of a hasty and dishonorable dismissal. The practical results of the statute, in connection with the other provisions of law bearing upon the subject, are these: that in time of war the President may dismiss an officer from the service at any moment and for any cause; that in time of peace he may dismiss him for cause with the co-operation of a court-martial, or remove him without cause with the consent of the Senate.

The acts of 1866 and 1870 are therefore neither in conflict nor in pari materia. They spring from different provisions of the Constitution. The one is an exercise of the legislative power “ to make rules for the government and regulation of the land and naval forces; ” the other of the power to raise and support armies.” The former relates to the punishment or protection of the individual officer ; the latter to the Army at large. It was the purpose of the one to secure to each officer a trial by court-martial in all cases “ in time of peace; ” it was the purpose of the other to reduce the Army of the United States from forty-five to twenty-flve regiments.

The fundamental error of the claimant’s case, in the opinion of the court, lies in the supposition that the President, under the act, became in this matter functus officio on the 31st December, 1870. If the statute had been enacted to confer a privilege upon the President, or a benefit upon the officer; if it were with officers as it is with privates, that an honorable discharge with a year’s pay and allowances would be accepted at any time by every enlisted man in the Army, and esteemed extraordinary good fortune, it might be held that the power to grant discharges must be exercised strictissimi juris, prior to the first day of January next.”

' But the purpose of the statute was neither to confer privileges, nor create benefits, nor authorize forfeitures. The single object of the enactment was to place the Army upon a permanent peace footing of twenty-five regiments. It cast upon the President the responsibility of carrying the enactment into effect and constituted him the sole agent of the Government to execute the legislative fiat. It gave the agent means for acting, and prescribed a period of action, and directed him to perform the duty within that time. Such a power is of course to be executed, if that be possible, within the prescribed time; but to hold that if it be not, it can not be executed at all, would be to hold that the laches or inability or accident or mistake of an executive officer should defeat the legislative will.

The statute did not execute itself. It provided for reduction by resignation, by retirement, by the selection of a retiring board, and by the selection of the President. All of these means united to make the plan of reduction. The officers upon the list of supernumeraries were not there because of their demerits. They were entitled to’ the consideration of the President, and the Government was entitled to the benefit of selection from them. The list had been founded upon what might be termed juniority. When two companies were consolidated, each having, say, its own second lieutenant, the junior became a supernumerary. Hence the list of supernumeraries may have contained the best and most deserving officers in the service, and it was a cardinal element in the scheme that such should be retained.

A paper has been introduced by the defendants from the files of the War Department, purporting to be an order of the President signed by the Secretary of War, December 31, 1870; entitled General Orders 000, and dated December 000,1870; and the claimant has offered evidence tending to show that the signature of the Secretary was not affixed until the 2d January, 1871. The court, however, must reject both the paper and the evidence to contradict its date. In the case of a proclamation ■of the President, it was held by the Supreme Court that the proclamation must be proved by its record, and that evidence could not be introduced to show that it was dated at one time and promulgated at another. (La Peyre’s Case, 17 Wall., 191.) In the present instance the court must go by the record of the War Department. A paper found in its files which was never issued, which was never promulgated, which was never executed, and which, if it ever existed as an intended order and not as a mere memorandum, .was immediately supplanted by a formal order (that of January 2,1871) duly entitled, promulgated, and carried into execution, can not be regarded by the court as the order of the President whereby he executed and carried into effect the statute for the reduction of the Army.

The defense must stand or fall on the real order of the President and its record, the order by which he finally and only sought to transfer the claimant to the list of supernumeraries, and muster him out as such, the order of January 2,1871, entitled “General Orders No. 1.”

The case then stands in this condition: That the statute (§ 12), without specifying a time, authorized the President to transfer officers to the list of supernumeraries, and in terms required that all vacancies which might occur in the line “ prior to the first day of January,” 1871, should be filled “ by the supernumerary officers; ” that on the 31st December, 1870, no transfers had been made to the list'of supernumeraries, and no vacancies existed in the line, and no officers had been mustered out on the recommendation of the retiring board. The 1st of January, 1871, fell on Sunday, a dies non in the clerical work of the War Department, so that the question resolves itself into this, whether the President was required to issue two orders, the one on the 31st December, 1870, transferring officers; the other on the 1st January, 1871, mustering out all who had not been assigned %

The court is of the opinion that in view of the constitutional functions of the President, in view of the restricted purpose of the Act 1860, in view of the general purpose of the Act 1870, Congress did not intend to make the reduction of the Army conditional upon its being carried into effect within a designated time, and that it was equally beyond the legislative intent that one provision of the statute should be carried into effect and another should fail. In other words, the court is of the opinion that the power of the President to carry into effect the provisions of the law continued until his entire duty was performed.

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