
    WILLIAM W. ARMSTRONG v. THE UNITED STATES.
    [No. 16839.
    Decided June 8, 1891.]
    
      On the Proofs.
    
    An order of the Secretary of War says: “The proceedings of the general court-martial in the foregoing case have been forwarded to the Secretary of War for the action of the President, and the proceedings, findings, and sentence are approved.” A subsequent order, “by direction of the President," transfers another officer to the place left vacant by the dismissal of the claimant-, “wee Armstrong dismissed.” The claimant raises no objection to his dismissal for more than eleven years.
    Where an officer on the active list raises no objection to an order of the Secretary of War approving the sentence of a court martial, dismissing him from the Army for more than eleven years, performing no service and offering to perform none, presenting no petition to the President and filing no complaint, the case can not be distinguished from Ide’s (25 C. Cls. R., 401), and the officer must be deemed to have voluntarily acquiesced in his dismissal.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the jourt:
    I. On April 3, 1866, the claimant was appointed a first lieutenant in the Seventh Regiment United States Infantry, a-nd served as such until April 16,1870; was unassigned from that date until May 4, 1870, when he was assigned to Sixteenth Regiment of Infantry; joined his regiment, May 24, 1870, and served as such officer until August 5, 1870, when he was put under arrest.
    
      II. Thereafter he was tried by a general court-martial upon the following charges:
    First. Neglect of duty to the prejudice of good order and military discipline; second, disobedience of orders; third, absence without leave; fourth, conduct unbecoming an officer and a gentleman.
    
      Additional charges. — First. Yiolation of act of Congress, approved March 2, 1863; second, violation of the eighty-third article of war; third, conduct prejudicial to good order and military discipline; with numerous specifications under the charges.
    The court-martial found him guilty of each of the charges, and sentenced him to be dismissed the service of the United States.
    III. The proceedings and findings were approved by Brigadier-General Terry, commanding, and by him the record was forwarded to the Secretary of War for the action of the President thereon.
    The proceedings were thereafter thus indorsed by the Secretary of War:
    “WAR DEPARTMENT,
    “ Washington, November 18, 1870.
    “2. In conformity with the 65th of the Bules and Articles of War, the proceedings of the general court-martial in the foregoing case of 1st Lieutenant William A. Armstrong have been forwarded to the Secretary of War, for the action of the President of the United States, and the proceedings, findings, and sentence are approved.
    “Wjl W. Belknap,
    
      “Secretary of War.
    
    “ The sentence will be duly executed.”
    Thereupon an order was issued as follows, and the claimant left service in the Army:
    “ First Lieutenant William W. Armstrong, 16th U. S. Infantry, accordingly ceases to be an officer of the Army from the date of this order.
    “E. D. Townsend,
    “ Adjutant- General.”
    On December 15, 1870, the following order was issued and carried into execution:
    Adjutant-General’s Oeeice,
    
      Washington, Dec. 15,1870.
    “General Orders, No. 326. J
    “ By direction of the President the following transfers and assignments of commissioned officers are made to fill vacancies to the present date * * * 1st Lieut. George H. Palmer, unassigned, to the 16th Infantry, vice Armstrong, dismissed. # * * ~ .
    “ By the order of the Secretary of War.
    “E. D. Townsend,
    
      " Adjutant-General.”
    
    It does not appear that the President ever confirmed or disapproved the proceedings or sentence of said court-martial, or took any action thereon, or made any orders in the case, unless he did so by some of the facts herein stated.
    IY. It does not appear that the claimant made any objection to the execution of any of said orders until he addressed the following letter to the President:
    “ Washington, D. C., March 22,1882.
    “ Sir : I have the honor to request, most respectfully, that you may be pleased to give consideration to my case, a brief of which will be set before you by my counsel, Edward E. D. Mayne, esq., of Washington, D. C.
    “ I have unjustly’ been deprived of my rank and pay as a. first lieutenant in the United States Army by a so-called court-martial sentence, which has done me a grievous injury. Not only did this court act in contrariety of law by finding a sentence at variance with the evidence, but two of the members were ineligible to sit in judgment upon me for reasons fully set forth in the brief. Furthermore, the findings have never been approved by the President of the United States, without which the proceedings are void.
    “ It is not without having first pondered deeply on the mag nitude of the request that I make of the Executive of a great nation that I come before you with my case; but believing in the eternal justness of all things pertaining to this Government, I approach you in order that you may give me that aid that my case merits.
    “ I have the honor to be, your obedient servant,
    “ W. W. Armstrong.
    “ To his excellency the President oe the United States.’’
    Y. The claimant was paid his salary until the time he left the service aforesaid, and has been paid nothing since.
    
      Mr. Joseph Daniels and Mr. J. V. Offenbaeher for the claimant.
    
      Mr. John O. Ghaney (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
   Richardson, Ch. J.,

delivered the opinion of the court:

This case, upon the facts, can not be distinguished in any principle of law from Ide’s Case, reported in the twenty-fifth Court of Claims Report, 401, except in one particular.

Here we have an order, issued by the Adjutant-General in the name of the Secretary of War, which purports to be “by direction of the President,” assigning an officer by name to the claimant’s regiment, “wee Armstrong dismissed.”

It is contended on the part of the defendants that this order was a recognition by the President of the dismissal of the claimant, and therefore an approval of the proceedings and sentence of the court-martial. In that the facts are stronger against the claimant than were those in Ide’s Case.

We said in Ide’s Case:

“ In time of peace, at least, an officer is not obliged to obey an illegal order. If such an order dismissing a subordinate from office be issued by a superior, but not by the highest officer .in authority, the subordinate is not left without some obligations resting upon him. It becomes his duty at once, or within a reasonable time, to appeal to the highest authority for revocation, modification, or correction of the illegal order. If he obeys and submits to the order without appeal and without objection for an unreasonable length of time, he must be held to have abandoned all title and claim to the office and to its emoluments, and to have waived his right to both.”

The claimant took no exceptions to the order for his dismissal, performed no further service, and offered to perform none, presented no petition to President Grant during the then remaining seven years of his official terms, and did not complain until nearly twelve years after he had left the service, when he addressed a letter to President Hayes, set out in finding iy.

During all these years, like Ide, by his own actions, he led the War Department to assume and to act upon the assumption that he voluntarily submitted to the order of dismissal and acquiesced therein, and thus subjected the defendants to the expense of providing other officers to perform the service for which he now seeks compensation to the extent of $38,988.87.

Upon the authority of and for the reasons stated in the opinion in Ide’s Case we hold that the claimant has no cause of action, and that his petition must be dismissed.  