
    BIRD L. FLETCHER v. THE UNITED STATES.
    (26 C. Cls. R., 541; 148 U. S. R., 84.)
    
      On doth parties’’ Appeals.
    
    A court-martial finds ar. officer on the retired list guilty of conduct unbecoming an officer and a gentleman in baying, “with intent to defraud,.failed, neglected, and refiised to pay the said W. the amount due him, though repeatedly requested so to do,” and sentences bim to be dismissed tbe service. Tbe Secretary of War indorses on tbe proceedings tbat tbey have teen forwarded to the Secretary of War for the aetion of the President,” and tbat tbe sentence is approved.
    The court below decides.
    1. Tbe rule deduced from tbe decisions of tbe Supreme Court in tbe cases of Mnnlcle (122 U. S. R., 543) and Page (137 id., 673) is tbis: where it appears positively on tbe face of an order dismissing an officer tbat tbe proceedings of a court-martial bad been submitted to tbe President by tbe Secretary of War, it must be inferred tbat tbe subsequent approval and confirmation of tbe sentence, tbougb in tbe name of tbe Secretary, was tbe act of tbe President.
    2. An order issued by tbe Secretary of War which recites tbat tbe proceedings of a court-martial were forwarded to him “for the aetíon of the President,” does not show, otherwise than argumentatively, that tbe proceedings bad been laid before tbe President and tbat tbe confirmation of tbe sentence was tbe result of bis judgment.
    3. Tbe one hundredth and sixth Article of War (Rev. Stat., § 1342), which provides tbat “ in lime of peace no sentence of a court-martial directing the dismissa\of an officer shall he carried into execution' until” “confirmed hy the President,” is for tbe government of the Army and operates upon commanding generals and tbe Secretary of War; tbe Act 17th July, 1866 iRov. Stat., § 1229), which provides tbat no officer in time of peace shall be dismissed except “in pursuance of the sentence of a court-martial,” is founded on tbe constitutional power of Congress to make rules for tbe government of tbe land and naval forces, and is a restriction upon tbe power of tbe President.
    4. Tbe President, with the advice and consent of tbe Senate, may remove an officer, notwithstanding tbe statutes', by tbe appointment of his successor; but filling a vacancy on tbe active list is too remote an exercise of tbe appointing power to be regarded as tbe dismissal of an officer on tbe retired list.
    5. “ Conduct unbecoming an officer and a gentleman” may consist in refusing to pay a debt. Tbe undefined offenses covered by tbe term must be determined by a higher code than tbat of criminal law.
    6. A sentence dismissing an officer in time of peace does not become operative until approved by tbe President; up to tbat time be is entitled to bis pay.
    
      7. An. officer on the retired list does not come under the rule in Tie’s Case (25 C. Cls. R., 401), that if he acquiesces for a long time in the action of the Secretary of War dismissing him; it is an abandonment of the office equivalent to a resignation.
    Tbe judgment of tbe court belowis reversed upon tbe ground that tbe Supreme Court regards tbe case of Eunkle as “ hardly a safe precedent in any other.”
   Mr. Chief Justice Fuller

delivered tbe opinion of tbe Supreme Court, March 6, 1893.  