
    MAURICE O’SHEA v. THE UNITED STATES.
    [No. 17289.
    Decided May 22, 1893.]
    
      On the Proofs.
    
    The Secretary of War writes the claimant that the President has appointed him post chaplain and that he will he commissioned if the Senate at its nest session consent thereto. This is the form of appointment need hy the Department during the recess of the Senate. The claimant accepts the appointment and takes the proper oath. Subsequently he is requested hy the Adjutant-General “ to return to this office the letter appointing you a post chaplain.” Ultimately another person is appointed, and confirmed hy the Senate.
    I.The power of the President to fill a vacancy in the Army during a recess of the Senate may he exercised hy a letter from the Secretary of War to the person to he appointed, stating that the President has appointed him to the office and such a letter may constitute his commission, and is conclusive evidence that the President has made the appointment.
    II.The Revised Statutes, § 1794, authorize the Secretary of State to affix the great seal “to all civil commissions for officers,” 'hut this, hy legal inference, excludes military commissions.
    III. The Revised Statutes, § 216, declares that “the Secretary of War shall perform such duties as shall from time to time he enjoined on or entrusted to him hy the President relative to military commissions.” But there is no law prescribing the form of a military commission.
    IV. An officer appointed and commissioned by the President during a rhcess of the Senate comes within the provisions of the Revised Statutes, § 1122; he can not he dismissed from the service in time of peace except upon the sentence of a court-martial.
    V.Where an officer has been appointed during a recess of the Senate, and after taking the oath of office and notifying the Department of his acceptance is ordered to return the letter of appointment, and is told that it was transmitted to him-prematurely, his obeying the order is not a resignation of the office.
    
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts of tbe case as found by tbe court:
    I. November 21, 1887, tbe following communication was addressed by tbe Secretary of War to tbe plaintiff and received by bim in due course:
    
      “WAR DEPARTMENT,
    “ Washington City, November 21,1887.
    
    “ Sir : Tor are hereby informed that tbe President of the United States has appointed yon post chaplain in the service of the United States, to rank as such from the twenty-first day of November, one thousand eight hundred and eighty-seven. Should the Senate, at their next session, advise and consent thereto, you will be commissioned accordingly.
    “ Immediately on receipt hereof, please to communicate to this Department, through the Adjutant-General of the Army, your acceptance or nonacceptance; and, with your letter or acceptance, return the oath herewith inclosed, properly filled up, subscribed, and attesed, and report the date and place of your birth, and the place of which you are now a resident (your home).
    “ Tour order of assignment will be deferred thirty days, to enable you to make preparations to enter on duty.
    “ WM. 0. ENDICOTT,
    “ Secretary of War.
    
    “ Post Chaplain Maurice O’Shea,
    “ U. 8. Army, Fort Niagara, Youngstown, N. Y.”
    This is the form of appointment used by the War Department in 1887 and 1888, during the recesses of the Senate, to fill vacancies in the position of post chaplain, and of other offices of the Army. - ■
    II. November 25,1887, the plaintiff addressed the following communication (inclosing the proper oath of office filled up, subscribed, and attested) to the Adjutant-General of the U. S. Army, which was received in due course:
    “Fort Niagara,
    “ Youngstown, Niag. Oo., N. Y., Nov. 25,1887.
    
    “Adjt. Gen. Drum, TJ. 8. A.:
    
    “Sir: Informed by Secretary of War Endicott that the President of the United States has appointed me post chaplain, I hereby signify my most grateful acceptance of his appointment.
    “ Please find enclosed oath filled up, subscribed, and attested.
    “ I was born in Ireland May 21st, 1843, and my home is at Toungstown, Niagara County, New Tork.
    “Tour most obedient servant,
    “Maurice O’Shea.”
    III. William T. McAdam, post chaplain of the U. S. Army, was retired in August, 1887, from active service by operation of law. John F. Dolphin was, during the winter of 1887-’88, nominated to the Senate as a post chaplain to fill the vacancy •caused by tbe 'retirement of said McAdam. The Senate advised and consented to Ms appointment and, March 1C, 1888, the President issued to him the following commission:
    “ The President of the United States of America to all who shall see these presents, greeting:
    
    “Know ye, that reposing special trust and confidence in the patriotism, valor, fidelity, and abilities of John F. Dolphin, I have nominated and, by and with the advice and consent of the Senate, do appoint him post chaplain in the service of the United States, to rank as such from the fifth day of March, eighteen hundred and eighty-eight. He is therefore carefully and diligently to discharge the duty of post chaplain by doing and performing all manner of things thereunto belonging. And I do strictly charge and require all officers and soldiers under his command to be obedient’ to his orders as post chaplain. And he is to observe and follow such orders and directions from time to time as he shall receive from me or the future President of the United States of America or the general or other superior officers set over him, according to the rules and discipline of war. This commission to continue in force during the pleasure of the President of the United States for the time being.
    “ Given under my hand at the city of Washington this sixteenth day of March, in the year of our Lord one thousand eight hundred and eighty-eight, and in the one hundred and twelfth year of the Independence of the United States.
    . “GROVER CLEVELAND.
    “By the President:
    “Wi. 0. Endicott,
    “ Secretary of War.”
    
    IY. The plaintiff’s appointment was intended to fill the vacancy caused by McAdam’s retirement.
    ■ Y. November 25, 1887, -the Adjutant-General of the U. S. Army sent the following letter to plaintiff:
    “Bev. Maurice O’Shea,
    
      "Port Niagara, Youngstown, N. Y.:
    
    “Sir: I am instructed by the Secretary of War to request you to return to this office the letter appointing you a post chaplain in the Army, which was mailed to you on the 21st instant.
    “This appointment was transmitted to you by me prematurely.
    “Yery respectfully, your obedient servant,
    “K. C. Drum,
    “ Adjutant- General.”
    
    
      s December 1,1887, plaintiff sent tbe following answer:
    
      “Fort Niag-aba,
    “ Youngstown, Mag. Go., N. Y., Deo. 1st, 1887,
    “Acljt. Gen. Dbujvc:
    “Sib : Your favor of tbe tbe 25tb nit. was received on my return borne tbis morning’.
    “At your request I at once forward to you tbe letter of appointment that was sent to me.
    “I remain, with profound esteem, your obedient servant,
    “Matjbice O’Shea. •
    “To Adjt. Gen. Dbum,
    “ War Department, Washington, D. G'.”
    December 9,1887, tbe Adjutant-General answered as follows:
    “ Bev. Matjbice O’Shea,
    “Fori Niagara, Youngstown, N. Y.:
    
    “ Sib : I am instructed to advise you to defer making any preparation for going on duty as post chaplain in tbe Army wbicb may involve expense, as there is now some uncertainty as to your appointment to that office.”
    January 24,1888, tbe plaintiff wrote tbe Adjutant-General as follows:
    “Sib: Maj. Page, commanding at Fort Niagara, has just informed me that an officer in tbe Army waiting orders is required to report to headquarters once a month.
    “ Desiring, sir, to comply with all your regulations, I have to inform you that I have been waiting orders here since tbe 21st day of last December — thirty days after tbe appointment as post chaplain.
    “Yours, respectfully,
    “Maueioe O’Shea,
    
      “Post Chaplain, TJ. 8. ArmyP
    
    In answer to this letter tbe Adjutant-General wrote plaintiff that be was “not regarded as an officer of tbe Army.” January 25, 1888, tbe plaintiff wrote tbe following letter to tbe Adjutant-General:
    “Fobt Niagaba,
    “ Youngstown, N. Y., Jan. 25,1888.
    
    “Adjutant-General B. O. Dbum, U. S. Army:
    “Sib: I have tbe honor to present tbe following for tbe consideration of tbe honorable Secretary of War':
    “ You will please find enclosed a copy of my appointment as post chaplain, U. S. Army.
    “In conformity with your instructions of Nov. 25, 18S7, tbe original was sent you by me on tbe first day of last December, with tbe prompt obedience that I owe my military superiors' and in tbe implicit confidence that it would be returned to me-when necessary corrections should have been made.
    “I received my appointment on tbe 23d day of Nov., 1887, and on tbe following day (Nov. 24, 1887) I took tbe oatb of office, sent you my letter of acceptance, and began immediate-preparations to enter on duty, you having ordered that I should so prepare within thirty days.
    “Now, sir, having received no official notice to tbe contrary,. I, on tbe 18th day of this month, made application to Maj. Clayton, paymaster, (J. S. Army, for my pay, and I received answer from tbe Paymaster-General that ‘be bad no notice of tbe appointment of Mr. O’Shea as chaplain.’
    “In view of these facts I respectfully request that you issue such orders as may be necessary to enable me to draw tbe pay due me.
    “Yery respectfully, your obedient servant,
    “Maurice O’Shea,
    
      “Post Chaplain, U. 8. Army.”
    January 30, 1888, tbe Adjutant-General answered plaintiff as follows:
    “ Eev. Maurice O’Shea,
    
      “Fort Niagara, Youngstown, N. Y.:
    
    “Sir: I bave the honor to acknowledge tbe receipt of your letter of the 25th instant, asking that such orders be given as will enable you to draw pay as post chaplain, IJ. S. Army, and in reply to inform you that inasmuch as you are not an officer of tbe Army your request can not be complied with.”
    January 31,1888, tbe claimant sent tbe following letter to-tbe Adjutant-General:
    “ Sir : I bave tbe honor to report myself on waiting orders, as per letter of appointment dated War Department, Washington City, November 21, 1887.
    “My post-office address is as above for tbe coming month.
    “Yery respectfully, your most obedient servant,
    “M. O’Shea,
    
      “Chaplain, IT. 8. Army.” '
    
    YI. Tbe salary of plaintiff from tbe date of bis appointment to March 5, 1888, would be $425.04.
    
      Mr. James N.-ffayden (with whom was Mr. Joseph K. MeCam-mon) for tbe claimant.
    Tbe claimant’s appointment was in accordance with tbe custom of tbe War Department in filling vacancies, during tbe recess of tbe Senate, in tbe position of post chaplain and other officers of tbe Army.
    Although the letter of ad interim appointment addressed to the claimant was not signed by the President, but by the Secretary of War, as was usual in such cases, yet it sets forth that “the President of the United States has appointed” the claimant post chaplain, thus showing that the letter was written under the direction of the President and that the appointment was his act. (United States v. Page, 137 U. S. P., 673 [678].)
    The claimant became post chaplain in the U. S. Army upon his accepting the President’s appointment and taking the prescribed oath of office, and, under the said appointment, held that office from November 21, 1887, until March 5, 1888, the date on which Chaplain Dolphin’s appointment took effect. He therefore is entitled to receive pay for the period between, those dates at the rate of $1,500 a year, or the sum of $425.04. (U. S. Eev. Stats., sec. 1261.)
    
      Mr. Felix Brannigcm (with whom was Mr. Assistant Attorney- General Cotton) for the defendants.
    There is only one question of law in this case, to wit: Was the said letter of November 21,1887, a valid appointment of the claimant to the office of post chaplain in the service of the United States?
    So far as that letter could convey such an appointment the appointment was made, and so far as claimant could accept the office it was accepted by his express' report to the War Department and by his oath of office duly made, subscribed, and transmitted to that Department and his notice of readiness to perform his duties. If claimant was then a post chaplain in the U. S. Army the subsequent proceeding of the Adjutant-General could not deprive him of that office before the confirmation and commissioning of his successor in office.
    Claimant is not entitled to recover in this suit, because he was not appointed as post chaplain in the U. S. Army.
    The Constitution, Article ii, section 2, clause 3, provides that “the President shall have power to fill up all vacancies that may happen during recess of the Senate, by granting commissions which shall expire at the end of their next session.”
    
      And section 3 provides that the President “ shall commission all the officers of the United States.”
    This power of appointment can be exercised only by the granting of a commission signed by the President. It is not alleged that claimant was commissioned, and the evidence shows that he'was not so appointed.
    Chief Justice Marshall, delivering the opinion of the Supreme Court in Marbury v. Madison (1 Crunch, 153), said as to the mode in which this power of appointment is exercised by the President:
    “The last act to be done by the President is the signature of the commission.
    * #*#**-#
    “ Some point of time must be taken when the power of the-Executive over an officer, not removable at his will, must ‘cease. That point of time must be when the constitutional power of appointment has been exercised. And this power-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. (Ib., 157.)
    ###**#*’
    ■“A commission bears date and the salary of the officer commences from his appointment, not from the transmission or acceptance of his commission. (Ib., 161.)
    “It is, therefore, decidedly the opinion of the court that when a commission is signed by the President the appointment is made. * * •
    “ The discretion of the Executive is to be exercised- until the appointment has been made.” (Ib., 162.)
    The office is not conferred while any act is to be done preliminary to the investiture. (Williams v. United, States, 23 C. Cls. R., 48.)
   Davis, J.,

delivered the opinion of the court:

A vacancy having occurred during a recess of the Senate-among the post chaplains of the United States Army, the plaintiff received from the Secretary of War the following communication:

“War Department,
Washington City, November 21,1887.
“ Sir : You are hereby informed that the President of the United States has appointed you post chaplain in the service of the United States, to rank as such from the twenty-first day of November, one thousand eight hundred and eighty-seven. Should the Senate, at their nest session, advise and consent thereto, you will be commissioned accordingly.
“Immediately on receipt hereof please to communicate to' this Department, through the Adjutant-sGeneral of the Army, your acceptance or nonacceptance; and, with your- letter of acceptance, return the oath herewith inclosed, properly filled up,, subscribed, and attested, and report the date and place of your birth and the place of which you are now a resident (your home).
“Tour order of assignment will be deferred thirty days, to enable you to make preparations to enter on duty.
“Vi. C. Edincott,
Secretary of War.
“Post Chaplain Maurice O’Shea,
U. 8. Army, Fort Niagara, Youngstown, N. Y.”

Plaintiff accepted the appointment thus made, but his name was never submitted to the Senate, while another chaplain was nominated, and, in the following March, appointed to fill the vacancy for which the plaintiff was first designated.. Plaintiff now claims pay as post chaplain from November 24, 1887, to March 5,1888, when the commission of his successor took effect.

This contention the plaintiff bases upon the second article,, second section, last clause of the Constitution of the United States; which provides: “ The President shall have power to fill up all vacancies that may happen during the recess' of the Senate by granting commissions which shall expire at the end of their next session.” As a vacancy did exist in the list of post chaplains in November, 1887, which had happened ‘during the recess of the Senate, there is no question that the President then had power to fill it. It is, however, urged that the letter of November 21,1887, was not a commission, such as is contemplated by the preceding section of the Constitution and by section 3 of the same article, which intends (it is said) that the President “ shall commission all the officers of the United States.”

The first question to be decided, then, is whether, through the letter of November 21, the President exercised his power to “fill up” the vacancy then existing. So-far as such a letter could appoint, the appointment was made; it was accepted in terms by the plaintiff; his oath of office was duly made and filed, and he notified to the Department of War his readiness to perform Ms official duties. Undoubtedly the appointment of an officer in the Army can be made only by the President, and in ordinary course is and should be made by granting a commission sighed by him. We fail to ñnd, however, any provision of law prescribing the form of this commission, or, except as hereinafter shown, that it shall bear the sign manual of the President.

Section 1794 of the Eevised Statutes provides, in substance, that the Secretary of State shall keep the great seal, “ and shall affix the same to all civil commissions for officers of the United States to be appointed by the President, by and with the advice and consent of the Senate, or by the President alone;” and further provides that the seal shall not be affixed to any commission before the same has been signed by the President. It will be noted that this provision of law is expressly confined to “ civil” commissions for officers of the United States, thus by legal inference excluding “military”, commissions. The direction as to civil commissions has since been modified by authorizing postmasters’ commissions to be under the seal of the Post-Office Department and to be countersigned by the Postmaster-General; by authorizing the commissions of all officers under the control of the Secretary of the Interior to bear the seal of the Department of the Interior; and by authorizing the commissions of all judicial officers, including marshals and attorneys of the United States, and all commissions theretofore prepared at the Department of State upon the requisition of the Attorney-General, to be under the seal of the Department of Justice and to be countersigned by the Attorney-General. In all these cases the signature (except as to the Interior Department) is required to be upon the commission before the seal is affixed (Sup. Eev. Stat., vol. 1, 2d ed., pp. 5, 78, and 605.) It thus appears that the only express statutory provisions as to the form of commissions relate to civil commissions alone.

As to commissions in the Army of the United States we find this statutory direction'Only:

(Section 216, E. S.) “The Secretary of War shall perform such duties as shall from time to time be enjoined on or entrusted to him by the President relative to military commissions, the military forces, the warlike stores of the United States, or to other matters respecting military affairs; and he shall conduct the business of the Department in such manner as the President shall direct.”

The commission, whatever its form, is but evidence of the fact that the President has exercised his constitutional power of appointment; and if it be held that a recess appointment, to be valid, must be evidenced by a commission, still we find nowhere any provision requiring a specified form. The document sent to the plaintiff in November is signed by the Secretary of War; it is addressed to the plaintiff as a post chaplain in the United States Army; it informs him that “the President of the United States has appointed you post chaplain in the service of the United States.” * * * 11 Should the Senate, at their next session, advise and consent thereto, you will be commissioned accordingly.”

This appointment is in the form then used for recess appointments to the Army; the President had the power to make the appointment, and the act of the Secretary (which expressly declares that the President had made the appointment) is conclusive evidence of the fact that it was made. (Wilcox v. Jackson, 1 Peters, 498, 513; United States v. Eliason, 16 Pet., 201, 302; Confiscation Cases, 20 Wall., 92, 109; United States v. Farden, 99 U. S. R., 10, 19; Walsey v. Chapman, 101 U. S. R., 755, 769.) In our opinion the communication of November 21, with the acceptance and oath filed, made jfiaintiff a post chaplain during the next session of the Senate,, unless some other person should be nominated to the Senate and with that body’s advice and consent commissioned in his place. This did occur, but not until March, 1888.

Having been thus invested with the office of a post chaplain, plaintiff held the rank of captain of infantry without command, and was “ on the same footing as other officers of the Army as to tenure of office, retirement, and pensions.” (Rev. Stat., Sec. 1122.) He then became subject to the provisions of section 1229, which provides that “the President is authorized to drop from the rolls of the Army, for desertion, any officer who is absent from duty without leave; and no officer so dropped shall be eligible for reappointment. And no officer in the military or naval service shall in time of peace be dismissed from the service except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof.” As this officer did not fail in his duty after appointment, tbe President was without power to dismiss Mm or to revoke tbe appointment after plaintiff bad accepted it and qualified for office by filing bis oatb and by signifying bis readiness for duty.

Another point remains to be considered, and that is, whether by complying with letter of tbe Adjutant-General, dated November 25 (which evidently crossed bis letter of acceptance, dated tbe same day), requesting or ordering him to return tbe letter of appointment, plaintiff shall be held to have resigned tbe post or to have acquiesced in any theory of tbe-War Department that tbe appointment was not then complete. We fail to find in tbe correspondence any such intention upon plaintiff’s part. He considered himself upon November 25 an officer of tbe Army, subject to military discipline. Receiving bis first direction from bis official superior, be naturally and properly complied with it. If this were not so and something in tbe nature of a protest be held necessary upon bis part in returning Ms appointment, still there is nothing in tbe letter of tbe Adjutant-General (of November 25,1887) to put plaintiff upon Ms guard. That letter “requests” him to return tbe letter “appointing” him a post chaplain, as this “appointment” bad been transmitted to him by tbe Adjutant-General “prematurely.”

In this communication there is not shown an intention to-revoke tbe appointment. Plaintiff evidently did not understand that there was such an intention (if it did, in fact, then exist in tbe mind of tbe President, which is not shown), and properly forwarded tbe letter without comment. Bight days later be was advised to defer any preparation for going on duty as post chaplain in tbe Army, which might involve expense, as “there is now some uncertainty as to your appointment to that office.” Tbe word “now” in this communication is significant. Plaintiff, following Army Regulations, reported to headquarters in January as a post chaplain, and learning later from tbe paymaster that there was no notice of tbe appointment given, be brought tbe facts to tbe attention of tbe Adjutant-General, stating that be bad sent forward tbe appointment in “prompt obedience” to bis “military superiors,”' and “in tbe implicit confidence that it would be returned to ‘Mm’ when necessary corrections should have been made.” There is nothing in all of this to show tbe slightest intention ■apon plaintiff’s part' to relinquish, any rights which the appointment had given him.

It remains to be seen whether the President in fact authorized the action of the Secretary of War or whether the Secretary acted unadvisedly ; for if the President did authorize the appointment and it was thereupon made and accepted as here-inabove set forth, it was beyond the President’s power to revoke it.

The letter of the Secretary, dated November 21, distinctly states “that the President of the United States has appointed you post chaplain in the service of the United States.” Ordinarily this would be conclusive upon this branch of the case,, but other correspondence ensued which shows one of two' things — either that the Secretary acted in advance of authority, which is, to say the least, most unlikely, or that after November 21 the President saw fit to reconsider his order of appointment.

In his letter of November 25 the Adjutant-General requested the return of the letter of appointment upon the ground that it had been transmitted by him (the Adjutant-General) prematurely. This letter simply intimates that the Adjutant-General had acted hastily and contains no intimation that the Secretary of War had acted without authority. It relates to the delivery of the letter alone and not to the order of the President. Two weeks later the Adjutant-General writes that plaintiff should defer making any preparation for going on duty, “as there is now some uncertainty as to your appointment.” Still no intimation that the President had not ordered the appointment and not even a statement that the appointment was regarded as revoked or void, but an indication of doubt and a caution to plaintiff to avoid expense.

First in January, some fifty days after the- last letter mentioned, was plaintiff informed that he was “not regarded as an officer of tbe Army.” In the face of the very strong presumption that the Secretary of War would not have sent the letter of November 21 in advance of an order from the President — that he would not say the President “has appointed,” when in fact the President had not appointed — we can not construe the subsequent correspondence to mean other than that the first decision was reconsidered; but as this reconsideration occurred after plaintiff bad been appointed and qualified it was inoperative.

Judgment for plaintiff in tbe sum of $425.04.  