
    SMITH’S CASE. Thornton Smith v. The United States.
    
      On the Proofs.
    
    
      The petitioner, as assistant quartermaster in the voluntes»' army, is, by orden' of the President, dismissed from the service. Subsequently, the order of dismissal is revolted, as made without cause and by mistake. He now seeks in this suit his pay from the date of such dismissal to the date of its revocation.
    
    When an order of the President, dismissing a military officer, is revoked, as made ■without cause and by mistake, it is revoked from its inception, and all its consequences are annulled. Therefore, the officer is entitled to his pay from the date of his dismissal to the date of its revocation.
    Mr. A. L. Merriman for the claimant:
    Petitioner, while on duty in the city of Washington, D. C., on the 5th of September, A. D. 1862, was dismissed, without notice, from the service, under an order from the Secretary of War, for the alleged reason that petitioner was absent from duty. Said order of dismissal was, however, on the 13th day of February, A. D. 1864, wholly revoked by the Secretary of War, under the direction and order of Abraham Lincoln, President of the United States, it being ascertained that the alleged reason for his dismissal did not exist. Petitioner claims pay for the time he was suspended from the service by reason of said order of dismissal, during which time he was engaged in obtaining the revocation of said order, and was at all times ready to perform, and awaiting, the orders of the government.
    By the issuing of a commission, a contract is formed, which contract is obligatory upon both parties. The party agrees, in consideration of certain pay and emoluments, to perform the duties of his office, and the government agrees to pay him for such services until he forfeits such pay by the unfaithful discharge of his duties.
    The officer cannot retire from service except upon the acceptance of his resignation by the government; nor can the government dismiss an officer except for cause. Under the 17th section of the act of July 17, 1862, the President was authorized to dismiss any officer for any cause. But this officer was not dismissed by order of the President. On the contrary, the order of dismissal was issued by the Secretary of War, which order was, on appeal to the President, revoked by him.
    The revocation itself, by the highest authority of the land, is significant in showing that the original order of dismissal was unlawful, or at least unwarranted.'
    It has been held by the Second Comptroller of the Treasury, sec. 890, Digest 1865, that “a soldier of militia or volunteers who is illegally or against his will discharged from service, is entitled to his pay up to the time of the discharge of his company, or to the expiration of his term of enlistment.” (See W. G. Hayse’s Case, June 16, 1849.) In sec. 906, p. 131, same vol.,he decides that “a soldier convicted of a crime and imprisonment, but pardoned,” (and surely a revocation of an order which was issued without foundation or cause, is as forcible as a pardon for a crime which was really committed,) “ on the ground that his innocence of the crime was shown, is entitled to pay for the time he was imprisoned, as he was withdrawn from the service without fault on his part.” (See General Orders, War Department, No. 20, July 27, 1853.) Sec. 907, same decisions, it is decided that “ when a soldier has been tried, convicted, and sentenced to forfeit his pay, &c., and is subsequently pardoned — unconditionally pardoned — the pardon restores him all the rights he would have had if the offence bad not been committed.” Also sec. 3 026, in wbieb it is beld that “when tlie President disapproves of the sentence of a court-martial cashiering an officer, and restores him to duty, the proceedings of the court are to he considered cancelled, and the officer is entitled to pay.” (Passed Midshipman Barney’s case, May 3, 1847.)
    The Deputy SOLICITOR for the defendants:
    The President’s order, reinstating this officer in. his former rank after being stricken from the rolls, removes all stigma that may have attached to his reputation; but it breeds no money in the way of pay and emoluments where no service was actual or constructive during all this time when he was discharged from the public service. It may be the misfortune of this claimant to have fallen under unjust censure, requiring his removal from office, but the power to appoint includes the power to remove all military officers, and one may be stricken from the rolls without trial bj' a court-martial, notwithstanding a decision in his favor by a court of inquiry. It is useless to dispute the settled construction as to this power since 1789. {Exparte Dmican N. Hennen, 13 Peters, 230.) The Secretary of War had no such power of dismissal as is alleged in this petition. What Was done from the beginning to the end of this transaction was through the President, with full power in the premises. It is a power well understood in England, (1 McArthur, 128,) and under every other government. It is recognized to its highest extent here, as confirmed by the statutory provisions in the President. (12 Stat. L., 596, act July 17, 1862.) Had this assistant quartermaster with rank of captain been recommissioned by the President, after being summarily dismissed, and had promotion occurred, with the concurrent action of the Senate of the United States, in regard to others of younger date with himself, during the interval while discharged, this promotion of his juniors over him would have been legal. Even with a recommendation from the Senate that the President would give him the rank he had lost, by being dismissed, the same result would have followed. (Case of Dr. Simons, IX Op. Att’ys Geu’l.) Had the order for revocation been accompanied with directions to allow the pay during the period when no service was performed by this claimant, it is possible the Paymaster General might not have gainsaid the commander-in-chief, thus taking the responsibility; but even then the act would have been one of servility to custom, changing in no respect the legal aspect of such a case. The claimant can point to no special legislation of Congress under which this relation back, under the order of revocation, as to pay and emoluments, attaches; and if his reliance be on the same alleged custom for the allowance, a judicial sentence can only put it in its proper light, as more honored in the breach than in the observance.
   LoRING, J.,

delivered the opinion of the court:

The petitioner was an assistant quartermaster in the volunteer army with the rank of captain, and on the 5th of September, 1862, he was, by the direction of the President, dismissed from the army for being absent, without proper leave, from his command, while the army to which he belonged was fighting the enemy in the field. On the 13th of February, 1864, the order of dismissal was revoked, as made without cause and by mistake, and therefrom the petitioner served as an officer in the army until the 11th of June, 1864, when, on account of disability, incurred in the Red River campaign, he resigned. He has received his pay from the date of his commission until the date of the order of his dismissal, and from the revocation of that order to the date of his resignation. But his pay from the date of the order of his dismissal to the date of its revocation, though applied for, has been refused to him. And it is that pay, from the 5th of September, 1862, until the 13th of February, 1864, amounting to $2,344 50, which he claims in this suit.

When the order of dismissal was revoked, it was revoked from its inception, and altogether, because, from its nature, it was indivisible and could not operate for a term; for if it did, it would be in effect a suspension merely, and that was not intended, and is legally impossible; for though an officer may be suspended from his duty, he cannot be suspended from his office,, for that once vacant, can be filled again only, like any other vacancy, by a nomination by the President, confirmed by the Senate; and when a dismissal is without cause and by mistake, the reason for revoking it goes to the whole, and not to a part of it, and such is to be taken as the purpose- of the revocation.

If the dismissal was revoked from its inception, all its consequences were annulled, and the petitioner, on the facts shown, was an assistant quartermaster in the volunteer army with the rank of captain from the 5th of September, ,1862, to the 13th of February, 1864, and as such entitled to the pay and emoluments fixed by the law for that rank, which we find to be $2,344 5Q, and judgment is to be entered for the petitioner for that sum.  