
    I-IILDEBURN’S CASE.
    Samuel Hildeburn v. The United States.
    
      On the Proofs.
    
    
      In 1870 there is a large number of supernumerary officers in the Army. The Act 15tli July, 1870 (16 Stat. L., p. 318, § 12), authorizes the President to transfer officers to the list of supertmmeraries, and directs that all vaemieies in the line which may occur before the lsi Jmrnary, 1871, be filled by supernumerary officers; and that those remaining after the lsi January, 1871, be mustered out with one year’s pay. On the 2d January, 1871, the War Department transfers the claimant to the list of supernumeraries and directs that he be mustered out. He protests; but in Jwne, 1871, accepts pay for the year under the act. He now brings his action for subsequent pay, claiming fhathe is still de jure in the 'service.
    
    
      I. Where the President;, on the 2d January, 1871, directed that an officer in the line he transferred to the list of supernumeraries and mustered out under Act 15th July, 1870 (16 Stat. L., p. 318, § 12), and the officer during the year accepted the one year’s pay given to such officers hy the statute, it is a conclusive admission that he came within its terms, and he cannot contest the legality "of his discharge.
    II. Whore an officer’s pay-account expressly states that an item of $1,980 is for “ one year’s pay under Aot Julyl5,1870, §12,’’given to officers mustered out of the service, and the officer accepts the payment and receipts in full for it, his protest, at the time, that he accepts it as pay due and to become dno as an existing officer in the Army, is ex parte and unavailing.
    
      The Reporters' statement of the case:
    The court found the following facts:
    I. The claimant was on January 3,1869, duly commissioned as captain in' the Third Cavalry Biegiment of the Army of the United States, and continued to hold said office and rank, and was so holding the same at the time of the issuance of the order hereinafter mentioned.
    II. 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 Oeeioe,
    “ Washington, January 2,1871.
    “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:
    “1. Tramsfers to the list of supernumeraries, under section 12 of the act approved July 15, 1870:
    # # # # # # #
    “Captain Samuel Hildeburn, Third Cavalry.
    
      M, jr.
    if -f? TV TV TV
    “ II. Transfers and assignments to fill vacancies to the present date:
    
    
      *******
    
    “ Captain Thomas L. Brent, unassigned, to the Third Cavalry, vice Hildeburn, transferred to the list of supernumeraries.
    ^ "K5 •}£
    “ 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.
    
    “Captain Samuel Hildeburn.
    # # $ * # * *
    “By order of tlie Secretary of War.
    “E. D. TOWNSEND, Adjutant-General”
    
    Tbe names of all officers wbo were mustered out of tlie service as supernumeraries under the Act 15th July 1870, (10 Stat. L., p. 315, § 12), are contained in said order, which was the only order discharging or transferring officers to the list of supernumeraries under the section. And no vacancy existing at the time of the passage of the act, or which occurred from any cause prior to the first day of January next ensuing, was filled from the list of supernumeraries set forth and declared by that order.
    II. At the time the foregoing order was issued the claimant was on duty in the field, but he by his agent shortly thereafter protested to the Secretary of War that neither the President nor Secretary of War had any right to deprive him of his commission unless through a court-martial, and that he claimed still to be an officer, and that he tendered his services as such; and ho at the same time demanded a trial by court-martial if there were any charges against him.
    III. The claimant continued in service and on duty with his command in the field until the 13th February, 1871, when he received notice of the foregoing order mustering him out. On the 7th June, 1871, he was paid by a paymaster of the Army for the time he continued in sendee, viz, to the 13th Februaiy, 1871, and also one year’s pay under the act 15th July, 1870, and the payment was made upon the following stated account, receipt, and affidavit:
    
      The United States to Captain Samuel Jlildelmrn, U. S. A., Dr.
    
    
      
    
    G-. O. No. 3, ~W. 1)., A. (t. O., «Tanu’y 2,1871. Deduct half-pay for-months-days on ■cave of absence. TlieOth capt. mustered out.
    
      “ I certify on ltonor. tliat tbe amounts .charged in tlie foregoing account are correct and just, as authorized by law, and that they areT'ightfully dire me as stated •, and that I am not in arrears with the United States on any account whatsoever.
    “ I was last paid to Decern. 31, 1870, by Paymaster Sprague. And I acknowledge to have received, this seventh day of June, 1871, of Paymaster Win. B. Rochester, U. S. A., in full of this account, the sum of twenty-two hundred sixty-six T652g dollars, by check No. 4205, on ass’t treasurer, New York.
    “SAMUEL HILDEBUBN,
    “ Gapt. 3c7 Gav.n
    
    (Signed in duplicate.)
    District oe Columbia,
    
      County of Washington, sot. :
    
    Be it remembered that on this 7th day of June, A. D. 1871, personally appeared before me, the subscriber, a notary public for the county aforesaid, Samuel Hildeburn, and made oath on the holy evangelists of Almighty Cod, in due form, that the annexed account, amounting to.$2,236.67, is accurate and just, and that all the matters set forth in the written certificate signed by him are true in substance and fact as stated; that his place of residence is Philadelphia, county of-, State of Pennsylvania,- 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; that he was on duty with Ms command until February 13, 1871, and that he did not receive the order mustering him out of the service prior to that date.
    SAM. I-IILDEBURN.
    Sworn to the day and j’ear above written, and subscribed in duplicate.
    [SEAL.] THOMAS J. MYERS,
    
      JPotary Public.
    
    "When the duplicate vouchers were presented to Captain Hil-deburn to sign, he added to the certificate of the vouchers words to the effect that he accepted the payment on account of pay due or to become due him as a captain of the Third Cavahy. The paymaster informed him at the time that he could not pay him with such a clause in the account, but that he must regard the account as that of a final payment. ’Whereupon the paymaster, or some one in his office, drew a pen' across the addition to the printed certificate. Captain Hildeburn then prepared a protest on a separate sheet of paper, as follows:
    “The payment accepted by me on the accompaning account is accepted as payment for the amount in full due me from January 1,1871, to June 7,1871, inclusive, as a captain of the Third Regiment of Cavalry, U. S. A., the balance as pay to become due me as captain Third Cavalry; and it is not accepted for compensation for having been discharged the United States service, as I claim I am at this date a captain of the Third Regiment of Cavalry, United States Army.
    (Signed) “SAMUEL HILDEBURN,
    
      “ Captain Third Cavalry P
    
    Captain Hildeburn then accepted a check on the assistant treasurer at New York for $2,236rys. Captain Hildeburn expressed great dissatisfaction, and said that he only settled in this way because he was obliged to do so in order to get money as a means of support.
    IY. The claimant has been at all times ready and willing to-perform the services of the office, and has several times made tender of his services to the Secretary of War, and has claimed to be still legally an officer. He has engaged a portion of the time in other pursuits, and has received for such services the sum of $1,588.
    
      Mr. Jolm Goforth for the claimant:
    On January 2, 1871, by General Orders No. 1 of the War Department, attempt was made to transfer to the list of supernumeraries, and also to muster out of service, certain officers, among ■whom was the claimant.
    It is submitted that this order was illegal, because it was not in compliance with section 12 of the Act of July 15, 1870, and was in violation of section 5 of the Act of July 13, 1860. Not having been legally put upon the list of supernumeraries, the claimant could not be mustered out of service by said order. It follows that the order in question did not in law deprive the claimant of his commission and office nor the pay and emoluments thereof.
    
      That tlie services of tbe claimant, ip tbe capacity of bis military office, were repeatedly tendered*1 to tbe government •, tbat applications to employ liirn in tbat-capacity were repeatedly rejected by tbe government; and tbat tbe claimant beld bimself in waiting for order and duty for fully two years after January 1,1871. Tbe only question tbat remains is whether tbe transaction, at tbe time Captain Hildeburii was paid, estops him from prosecuting bis present claim. In Sawyer’s Executors v. The United States (2 Otto, 382), tbe doctrine of protest is reviewed and settled. In tbat case “ there was an honest difference of opinion between tbe Secretary and-the decedent as to tbe rights of tbe parties.” Tbe act of Congress provided for time of payment only, not tbe mode. Tbe notes issued said nothing about gold’. Tbe claimant claimed gold because tbe agent bad told him lie would be paid in gold. The protest grew out of this difference of opinion, but in nowise touched tbe power or validity of tbe act of Congress. In tbe present case tbe President made an order after the time bad expired in which be bad authority to make it, and the protest is to be considered as against tbe illegality and injustice of tbat act.
    
      Mr. A. D. RoMnson (with whom was the Assistant Attorney-General) for tbe defendants:
    Tbe law (Act July 15,1870) provides tbat officers mustered out shall, in addition to tbe pay and allowances due at tbe time of tbe discharge, receive one year’s pay and allowances. The rides of tbe Pay Department require tbat no discharged officer shall be paid bis final pay without producing’ to tbe paymaster a certificate of non-indebtedness from all. accounting officers. The petition only claims pay from tbe date of discharge, less tbe one year’s pay and allowances received on muster-out, as will appear from a calculation thereof. Tbe petition alleges no protest or objection to tbe muster-out, or tbe manner thereof, or of any tender of service since. From all these circumstances, and Arliat occurred at time of payment, the conclusion is irresistible tbat claimant obtained tbe said- certificate of non-indebtedness from tbe accomiting officers and received his final pay and the one year’s pay and allowances, and left tbe service not only without any proper protest, but took bis pay and receipted in full with knowledge tbat this was a final payment, and that he would not be paid under protest.
    
      Hildeburn then withdrew his public protest. His private protest, which was not to and did not accompany his voucher, is of no account under the circumstances.
    This seems a stronger case for the government than usual in cases of protest. Protests are generally madé at time of payment and money paid without anything further being said. But in this case the claimant was informed before he took his money that it was a final payment, and if he took the money it would be a finalhy, and claimant so understood it.
    Claimant has rendered no service, and therefore cannot recover. {Connor v. Mayor of JYeio York, 5 N. Y. (1 Sehh), 285; Smith v. Mayor, 37 N. Y., 518, and cases cited.)
   Nott, J.,

delivered the opinion of the court:

In 1870, the Army having been reduced by the consolidation of regiments, there resulted a large number of supernumerary officers of the line, who were designated generally in Army, circles as “unattached.” Thus, if the First and the Twentieth Regiments had been consolidated by transferring to the former all the men' of the latter, all of its officers would have been “unattached,” though retaining their commissions and being still in the service. This condition of affairs being manifestly unadvisable, Congress provided for a reduction of the officers of the line by Act 15th July, 1870 (16 Stat. L., p. 318, § 12), in the following manner :

The President was “ 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 daj' of January next (that is to say, prior to January 1, 1871), in the cavalry, artillery, or infantry, by reason of such transfer, or from other canses, shall be filled in due proportion by the supernumerary officers, having reference to rank, seniority, and fitness, as provided in the existing law regulating promotions in the Army. And if any supernumerary officers shall remain after the first day of January next (that is to saj', after January 1,1871), they shall be honorably mustered out of the service with one year’s pay and allowance.”

The plain purpose of this enactment was th at the War Department should select for the full complement of the line the most meritorious officers of corresponding rank, and that all others, whether “attached” or “unattached,” should be transferred to a list of supernumeraries.

These supernumeraries were not to be mustered out of the service forthwith, nor even in the discretion of the President, but were to remain in the service until the end of the current year, and constitute a reserve of officers from which vacancies occurring in the line should be filled. _• Finally, when this period of grace should be passed and the end of the year reached, those who were so unfortunate as to remain upon the list of supernumeraries were to be mustered out, with a gratuity of one year’s pay and allowances.

Tlie statute shows the tender regard of the Government for these officers, a manifest desire that as many as possible of them should be retained permanently in the service, and the laudable intent of not turning away penniless those whose services, on grounds of public consideration, must be dispensed with.

It was clearly the expectation of Congress,.as declared by the statute, that the transfer-of “attached” and “unattached” officers to the list of supernumeraries would take place soon after the passage of the act, and that all retransfers back from the list of supernumeraries to the vacancies which might occur in the line should cease with the end of the year, so that with the beginning of the ensuing' year the work of reorganizing would be finished, and the Army.be standing fairly upon its new footing.

The War Department, nevertheless, did not make any such preliminary transfers to the list of suimrnumeraries; but, on the contrary, by a single general order, which was not issued until the 2d of January, 1871 — two days after the expiration of the year — transferred some officers to the list of supernumeraries and others to fill vacancies thus created, and at the same time directed the muster-out of all who remained unprovided for.

The claimant was such an officer. On the 2d of Jannary, 1871, he was a captain in the Army, duly commissioned, and “attached” to the Third Cavalry. On that day he was transferred to the list of supernumeraries, and an “unattached officer was assigned to fill his place. He contends that after the 31st of December, 1870, the President had ‘no power to take away his commission and, in effect, give'it to another; that if the Presi-' dent could have transferred regularly-attached officers to the list of supernumeraries on tbe 2d of January, 1871, and have retransferred officers from the list of supernumeraries to the place of those thus dismissed, he could have done so on the 2d of January, 1872, and can continue to disorganize and reorganize the Army now, notwithstanding the plain limitation of the statute “prior to the first day of January next •, that is to say, prior to the 1st of January, 1871. The claimant in this connection also relies upon the Act 13th July, 1866 (14 Stat. L., p. 92, § 5), which takes away from the President in time of peace the power to dismiss an officer at will, and restricts dismission from the service to cases “inpursuance of the sentence of a court-martial to that effect or in commutation thereof.”

If the case stopped at this point, a question of considerable public as well as private interest would be presented. The claimant protested at the time against the assumed authority of the President to deprive him of his commission. He tendered his services then and has tendered them since, and in various ways has endeavored to maintain a de jure if not a de facto foothold in the Army. He now seeks to recover his official pay for the period subsequent to his muster-out, and insists that it was illegal, and that he is still an officer of the Army. But on the 7th of June, 1871, he presented his pay-account to a paymaster of the Army, and then received and accepted the gratuity of one year’s pay and allowance given by the Act loth July, 1870 (supra) to those supernumerary officers who should be mustered out under its provisions. It is to be admitted at the same time that the claimant then presented a so-called protest, whereby he declared that he accepted payment as pay due and to become due to him as an existing officer in the Army, and that he did not accept it as compensation for having been discharged from the service. But this protest was so much waste-paper. In the first place, a year’s' pay was not due to the claimant if he were still an officer, and the law forbade payments in advance. Act 31 st January, 1823, (3 Stat. L., 723.) In the second place, the paymaster expressly informed the claimant, before payment, that he could not pay with any such reservation expressed on the face of the account, and that if the payment were made, it must be regarded as final payment. In the third place, the pay-account which the claimant presented, on which he was paid and for which he receipted in full, expressly stated that this item of $1,980 was for “one year’s pay under act July 15,1870,

12.” The protest, therefore, was ex parte and ex post faoto. The transaction was within the very letter of the - Supreme Court’s -decision in the case of Savage’s Executors (11 C. Cls. R, 215), and the case stands as though no protest or objection had been made when the claimant accepted-payment.

We are of the opinion that the voluntary acceptance of this g'ratuity given by the statute-was a conclusive admission by the claimant that he came within its terms. We think that it estops or closes his mouth from now questioning the regularity of the proceedings by which he acquired the gratuity. He virtually came to the defendants and said that he had been dismissed from the service according to the terms of the statute, and was thereby and for that reason alone entitled to its benefits. His conduct was tantamount to his resignation. As between ordinary employers and employés, the case would not be shadowed by a doubt. The action of a party cannot change the terms of a statute, but it may affect the .proceedings thereunder. In this case the voluntary action of the.claimant operated as a ratification of the official proceedings -and a waiver of the irregularities which form the basis of his suit; '

It may be that the general order of the War Department, issued on the 2d of January, IS 71 (which was Monday and the first secular day of the month), to take effect on the 1st of January, was valid so far as related-to the transfer to and mustering out of officers on the list of supernumeraries, even if the President had then no power to fill vacancies by assignment under the act. But on this point we express no opinion.

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