
    McELRATH’S CASE.
    Thomas L. McElrath v. The United States.
    
      On the Proofs.
    
    
      A lieutenant in the Marine Corps absent without leave is dismissed the serviee in June, 1806. A successor is duly appointed and commissioned. In July, 1873, a subsequent Secretary of the Navy revolees the order of dismissal and accepts a resignation of the dismissed officer, who then applies to the Treasury for his pay ad interim. The accounting-officms alloiu him half-pay. He accepts under protest and brings his action for the balance. The defendants set up a counter-claim for thepay allowed on the ground that the accounting-officers acted without authority, and that the money was paid in mistalce of law.
    
    I. The President may dismiss a military or naval officer without the concurrence of the Senate.
    
      II. An order dismissing an officer in the. Marine Corps issued by the Secretary of the Navy as such, not purporting to be the act or by direction of the President, is nevertheless in legal effect the order of the President.
    III. If an order dismissing an officer is not of itself efficient, it will become efficient (i. e., the officer will be removed) by the President’s appointment of his successor, with the advice and consent of the Senate.
    IY. Where an officer was dismissed the service, and subsequently the dismissal was revoked and his regisnation accepted though not till after his place had been fillod by the appointment and confirmation of his successor, the revocation did not displace the successor, nor could it increase the complement of such officers as fixed by law. The officer could be restored only by regular appointment to fill a vacancy.
    V. The rule that the Government cannot be held responsible for the mistakes of its agents includes mistakes of law as well as mistakes of fact, and extends to a mistake of law committed by the accounting-officers of the Treasury in adjusting and allowing ah account of one supposed to be, but not, an officer of the Government.
    VI. Where an officer dismissed from the Marine Corps subsequently rendered no service nor intended to render any, but by a mistake of the accounting-officers was allowed and paid as if reinstated in the office from which he was dismissed, he must be deemed to have received money which ex ceguo et tono he is not entitled to hold, and an action lies to recover it back.
    
      The Reporters' statement of the case:
    The court found the following facts:
    1. That by a Commission, dated April 1, 1862, to date from 26th November, 1861, the petitioner was appointed a first lieu-tenant in the Marine Corps of the United^ States.
    2. That on the 1st day of June, 1866, the petitioner was commanding the marine guard of the United States steamer Monongahela, then lying at the Boston navy-yard, and at about 9 p. m. on the evening of said 1st day of June he went on shore, and because of his not returning that evening an officer was the next day sent on search for him at the various hotels in Boston, and subsequently messengers were sent to inquire for him in the city of New York. He was not found, and did not return to the Monongahela, which, on the 5th day of June, sailed from Boston without him.
    On tlie oth of June, 1866, the petitioner was reported to the Department as absent from the Monongahela without leave.
    On June 5,1866, the petitioner, by letter of that date, tendered his resignation of his commission to the Department, which said letter was received June 13,1866.
    On June 19,1866, the Department notified the petitioner as follows:
    “Navy Department,
    “ Washington, June 19, 1866.
    “ Sir : The Department declines to accept your resignation as a first lieutenant in the Marine Corps, tendered in your letter of the 5th instant.
    “ As you deserted from the Monongahela on the eve of her sailing for the West Indies, you are hereby dismissed the service from this date. ■
    “ Eespectiully,
    “G. WELLES,
    “ Secretary of the Navy.
    
    “Mr. Thos. L. McElrath,
    “ Late First Lieutenant Marine Corps?
    
    3. On the 27th of June, 1866, the President nominated to the Senate Second Lieutenant George B. Haycoclt, of the Marine Corps, to be a first lieutenant in said corps, from the 20th of June, 1866, vice First Lieutenant Thomas L. McElrath, dismissed.
    By a commission dated 13th of July, 1866, George B. Haycock was appointed, by and with the consent of the Senate, to be a first lieutenant in the Marine Corps, on the' active list, from the 20th June, 1866.
    4. On the 14th May, 1873, the petitioner applied t.o the Department, praying that the order of June 19, 1866, dismissing him from the Marine Corps might be revoked and an nulled, and there was submitted therewith the representation of the executive officer of the Monongahela on June 1, 1866, that on that day he gave permission to the petitioner to leave said ship.
    On the 10th day of July, 1873, the petitioner, by letter of that date, tendered to the Department his resignation of his commission as a first lieutenant in the United States Marine Corps, to take effect from said date.
    On the 10th of July, 1873, the Department notified the petitioner as follows:
    
      “ Navy Department,
    “ Washington, July 10, 1873.
    “To Thomas L. McElrath,
    “ First Lieutenant United States Marine Corps :
    
    “Sir: The order of June 19, 1866, dismissing you from the service is hereby revoked, having been issued under a mistake of facts. You are thus restored to the position which you held at the date of that order.
    “The resignation which you now tender is accepted, to take effect this day.
    “ Respectfully, yours,
    “ GEO. M. ROBESON,
    “ Secretary of the Navy.”
    
    On the 8th day of January, 1874, the petitioner was notified by the Department as follows:
    “Navy Department,
    “ Washington, January 8, 1874.
    “ Sir: Your dismissal from the Marine Corps as a first lieutenant, dated 19th June, 1866, is revoked, and your resignation as a first lieutenant in that corps, tendered in your letter of the 10th July, 1873, is accepted from that date.
    “ Respectfully,
    “ GEORGE M. ROBESON,
    “ Secretary of the Navy.
    
    “ Mr. Thomas L. McElrath,
    “ Late First Lieutenant Marine Corps,
    
    “ Washington, D. G.”
    
    6. The number of first lieutenants in the Marine Corps between June 5, 1866, and July 10, 1873, was thirty. *
    
    6. In January, 1874, the claimant made application in writing to the Fourth Auditor of the Treasury for the settlement of his account as late lieutenant of the Marine Corps. The Au ■ ditor examined the account, certified the amount due to the claimant to be $6,106.53, and transmitted the same, with the voucher and certificate, to the Second Comptroller for his decision thereon. The Second Comptroller examined the account so settled by the Auditor, and certified to the Secretary of the Navy the amount arising thereon to be the same as certified by the Auditor. The Secretary of the Navy issued his requisition, countersigned by the Fourth Auditor and Second Comptroller, to the Secretary of the Treasury, requesting a warrant to be issued to claimant for the amount thus certified to be due him. The Secretary of the Treasury issued his warrant on the Treasurer accordingly, duly countersigned and registered, and thereon the claimant was paid said sum, declaring at the time of receiving the same that he believed the sum was not the entire amount due him, and that he accepted the same under protest, and should hold himself in no manner concluded as to the remaining sum claimed to be due him.
    All the facts set forth in the foregoing findings were known to the Fourth Auditor, the Comptroller, and the Secretary of the Navy, when they respectively acted upon said account.
    7. The amount above specified was the amount of the half-pay and allowances of a first lieutenant of marines from the 21st June, 1866, to the 10th July. 1873, inclusive; and if the petitioner had been on duty during that period, and allowed in settlement full pay and allowances, he would have received $12,213.06.
    8. From the 19th of June, 1866, to the 10th day of June, 1873, the petitioner was in business in New York, and earned $30 per week.
    9. The Government has filed a counter-claim to the petitioner’s demand.
    Jlír. Frank W. Haekett for claimant:
    The claimant, though suspended from active service, was an officer of the Marine Corps during the period that the order of dismissal remained unrevoked. The attempted dismissal by Secretary Welles, by letter of 19th June, 1866, was illegal and void. Power summarily to dismiss a commissioned officer of the Marine Corps was lodged in the President alone. (Articles of War, 2 Stat. L., 359; Fx parte Henuen, 13 Peters, 230; Gratiot v. The United States, 1 C. Ols. B., 258.) It is inherent to his office as commander-in-chief. (Digest Opinions Judge-Advocate-General, 147, Article Dismissal, 1, § 2.) In less than a month from the date of this letter the power was taken away even from the President of summarily dismissing an officer in time of peace. (Act 13th July, 1866, Bev. Stat., § 1229.)
    
      Summary dismissal is a serious and responsible duty, the performance of which cannot be delegated to another. It is for the President himself to pass upon the merits of each case. Granting reprieves and pardons, acting as supreme commander-in-chief, approving or disapproving bills, appointing and removing ambassadors and other officers of the United States, in the cases and with the qualifications indicated by the Constitution, are duties the performance of which devolves upon the President in person. (7 Opinions Attorneys-General, 453.)
    On its face, the letter of 19th June, 1866, itself purports to be an order of dismissal. It is not an authentication of an act which had previously been determined upon by the President. No reference whatever is made to him. Had a general order been issued, as in Montgomery’s Case, (5 C. Ols. B., 93,) in the words, “By direction of the President, you are hereby dismissed,” the court, upon the production of a certified copy of the order, might infer that statements made therein as to the source of its authority were true. The absence of such, language shows that the issuing of the order was the act of the Secretary alone, unless the court, upon general grounds, will presume it to have been the act of the President.
    The presumption that an act of the Secretary is that of the President appears to be founded upon the theory that, at some previous period, the President has given general directions, in conformity with which the Secretary may from time to time transact the public business. But this implied general authority must be confined to acts within the proper sphere of 'the Secretary’s duties. Had Secretary Welles assumed to act in the name of the President, this court, in the absence of evidence aliunde, showing that the President did not authorize the order to be made, might satisfy themselves that the dismissal had been lawfully determined upon. From the official promulgation of the fact, they would presume the. fact itself to be true.
    In Smith’s Case (2 0. Ols. JR., 206) the language of the order of dismissal was, “ By direction of the President,” and the order was signed by the Adjutant-General as a general order. The record discloses a like fact with regard to Winter’s Case, (3 0. Ols. B., 136,) and Montgomery’s Case, (5 O. Ols. B., 93.) These decisions apply to an order legal and valid on its face.
    Here, iu a matter clearly outside of his own proper Sphere, the Secretary assumes to act in his own name, and to dismiss an officer without a hearing. The form of a general order was dispensed with. A short letter addressed to the officer himself, disclosing no higher authority, affected to dismiss him. When an act is within the proper sphere of a Secretary’s duties, it may be interpreted as of course to be the act of the President, without express mention of his name in the instrument by which it is authenticated. But where it is one that the President in person must perform, the order should purport not only to be an attestation, but an attestation of the President’s own act.
    Admitting that the letter of the Secretary was presumably that of the President, and therefore valid and effective as an act of dismissal, claimant is still entitled to full pay and allowances up to the acceptance of his resignation.
    Comptroller Brodhead, by letter of January 14,1874, inquires whether the dismissal and restoration of Lieutenant McElrath was in conformity with the provisions of the Act March 3, 1865, (13 Stat. L., 489,) which set forth “ that in case any officer of the military or naval service who may be hereafter dismissed by authority of the President shall make an application in writing for a trial, setting forth under oath that he has been wrongfully and unjustly dismissed, the President shall, as soon as the necessities of the public service may permit, convene a court-martial to try such officer. * ' * * And if the court-martial aforesaid -shall not be convened for the trial of such officer within six months from the presentation of his application for trial the sentence of dismissal shall be void.” The Comptroller further asks if Lieutenant McElrath is “ considered by the Department as continuously in service in such a sense as to entitle him to pay during the intervening period.”
    To this the Secretary of the Navy answers: "In reply to the inquiry in your letter of the 14th instant, in relation to the case of Thomas L. McElrath, late a lieutenant in the Marine Corps, youare informed that he was restored according to the provisions of the law' to which you refer applicable to his case.”
    The dismissal of Lieutenant McElrath was, therefore, treated as void ab initio, both by the Navy and Treasury Departments.
    The rule laid down by this court in Montgomery's Case, (5 O. Cls. R., 93,) that the President cannot, by a revocation of his order of dismissal, indirectly exceed the number of a certain grade of officers fixed by law, or restore pay which had been meanwhile lawfully paid to another officer filling the vacancy, does no,t apply. In that case the order revoked was valid and effective in its inception.
    The Act March 3, 1865, provided that wrongful and unjust-dismissals, after application for a trial by the officer, should in certain events be void. This provision, construed with the Act July 25, 1861, (12 Stat. L., 275,) fixing the number of first lieutenants in the Marine Corps at thirty, was intended to retain the officer in his office just as if no dismissal had been attempted, although the effect might be to exceed the number fixed.
    Any less broad construction of the word “void” would defeat the purpose of the act granting a court-martial, (See language of Loring, J., Smith’s Case, 2 C. Gis. R., 206.) The same results flow from a voiding of the order of dismissal by any other means. Jf the original order of dismissal was void, Lieutenant McElrath was all the time in the service. If valid, the revocation of July 10, 1873, made it void from its inception.
    Officers of the Marine Corps are entitled to the same pay and allowances as officers of like grades in the Infantry of the Army. (Act 30th June, 1834, 4 Stat. L., 713; Rev. Stats., § 1612.)
    Claimant is entitled to full pay and allowances from June 19, 1866, to July 10, 1873, He was kept from active service by a cause which he could not control, and fr jin no fault of his own. (Digest of Opinions of Judge-Advocate-Oeneral, page 267, § 14; id., page 268, § 18.)
    •Section 20 of the Act 3d August, 1861, provided that officers of the Army when absent from their appropriate duties for a period exceeding six months, either with or without leave, should not receive the allowances for servants, forage, &c. Held, that such absence must be voluntary, and consequently the act does not apply to a case where the absence was compulsory, and in consequence of a sentence of court-martial which was illegal and void. {Ibid., 268, § 19.) ■
    This claim is not barred in whole or in part by the statute of limitation's. (Act-3d March, 1863,12 Stat. L., 765.) The petition was filed 5th April, 1875, while this claim first accrued 10th July, 1873. The order of dismissal, whether legal or not, was a breach of the contract which had subsisted between the Government and this claimant. The revocation of that order and his restoration to service, 10th July, 1873, created a new obligation on the part of the Government, viz, to make payment for the period of his exclusion from service in solido.
    
    
      
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants:
    The order of June 19,1866, was effective to dismiss plaintiff from the service. As to the immateriality of express reference to the direction of the President, the opinion of Attorney-General Gushing, rendered August 31, 1855, (Opinions, vol. vii, 453,) has the force of authority, for it has never been disavowed by a succeeding President; to its reasoning there is nothing to add.
    Whether the Act 17th July, 1862, adds to or detracts from the President’s power of removal (see Gratiot’s Oase, 1 O. Ols. It., 258) is unimportant, but its language no more requires the direct personal examination of the President than in the laws referred to in the opinion cited supra. But if this order was ineffective, the nomination, confirmation, and appointment of George B. Haycock, his successor, absolutely destroyed McElrath’s connection with the service. (See Case of Satterlee Ciarle, 2 Op., 67.)
    Says Judge Thomson, (13 Peters, 261,) in Ex parte Sennen, “ The mere appointment of a successor would per se be a removal of the prior incumbent, so far at least as his rights were concerned.”
    Being thus removed, his official life was extinct beyond any power of resuscitation ; itmight have been recreated bynomination to and confirmation by the Senate.
    Now, while it might be argued that the independent action of the President in removing McElrath must rest upon the Acts July 17, 1862, and 3d March, 1865, and was, therefore, subject to McElrath’s right to demand a court-martial, it must be admitted that the joint action of the President and Senate in displacing him by the appointment of a successor rests upon the Constitution. Between the 19th of June, 1866, and the 13th of July, 1866, he may have been entitled to the benefits of the statute, but after that date the office which had been his belonged to another by a title which was indefeasible. After that no locus pcenitentice existed.
    To make the order of July 10,1873, retroactive would be to nullify not only the order of June 19, 1866,-but also the appointment and confirmation of Haycock. As the two could not legally draw pay for the same position at the same time, it follows that, if the order of July 10,1873, gave to McElrath the legal right to it, it also took away Haycock’s right. Before the President invited action by the Senate on the dismissal of June 19, 1866, or on the virtual dismissal caused by the nomination of Haycock, it was in his power to correct his error or remedy his mistake; the nomination might have been withdrawn before final action by the Senate. But confirmation is not only appointment and recognition of removal by the President, but is also removal per se, and is not subject to revision by the President. Supposing, therefore, for the sake of argument, that the dismissal of June 19,1868, was not only voidable, but void, the nomination and confirmation of Haycock were'sufficient to take from plaintiff his office and give it to another. And all that can be claimed for a dismissal by mistake is that it is voidable. By the joint action of the President and Senate, McElrath was stripped of his office; neither party to the act can assert that the other committed error, nor can it be reversed without their joint consent.
    It may be argued that the defendants are seeking to recover money paid under “ mistake of law,” but the law mistaken was that conferring power upon the agent, and therefore is presumed to be known by the plaintiff. The $6,106.53 was paid by an agent of the Government who was not authorized by any law to make such payment, and the question is simply whether a principal can recover from a third person money paid by his agent when the third person as well as the agent knew that there was no authority from the principal to make the payment. Lord Mansfield says, (Stevenson v. Mortimer, Cowper, 805,) “Where a man pays - money by an agent which ought not to have been paid, either the agent or principal may bring an action to recover it back.” A fortiori, the principal should recover when the payee knew the powers of the agent, and where the payment was without consideration. (See The United States v. Bartlett, 2 Ware, 9.)
    
      Mr. Frank W. Haekett, for claimant, in reply:
    The President in nominating Haycock to fill what was supposed to be a vacancy created by the dismissal of Lieutenant McElrath, and the Senate in confirming the nomination, gave no legal validity to the Secretary’s order which purported to dismiss this claimant. True, the President’s message to the Senate, 27th June, 1866, was the nomination of Haycock, “vice First Lieutenant McElrath, dismissed.’’ But the object of a nomination is to appoint a new officer, not to dismiss an old one. A dismissal does not result until the office is filled by another. (The United States v. Banlc of Arkansas, Hempstead, 460.)
    Lieutenant Haycock was notified of his appointment 19th July, and his commission was of date 13th July, 1866. The office, therefore, was not filled till the day of the date of his commission. That he may receive pay from the date of his appointment is not material. The office is not filled by the act of appointment so as to affect the previous incumbent. The President may decline to commission the appointee.
    But Haycock’s acceptance of the office and entering upon its duties as of the 13th July could not operate as a dismissal by the joint action of the President and Senate in appointing a successor, because a statute went into effect that very day, (13th July, 1866,) the language of which is as follows: “No officer of the military or naval service shall in time of peace be dismissed from service except upon and in pursuance of the sentence of'acourt-inartial to that effeet, or in commutation thereof.” (14 Stat. L., 92.) A Federal statute takes effect from its date. (Matthew v. Zane, 7 Wheat., 164.) Congress under«Art. I, sec. 8, of the Constitution, empowering them to “make rules for the government and regulation of the laud and naval forces,” may restrain the implied power of the President as commander-in-chief to make summary dismissals.
    Defendant’s counter, claim is not well founded. The law-officer of the Navy Department advised that McElrath’s resignation be accepted, and gave it as his opinion that claimant would “be entitled to’his pay from June 19, 1866, to the date of such acceptance.”
    The Secretary, thus advised, “following the-practice of the Department,” and the Treasury officials, upon a review of the law, voluntarily allowed this claimant his “half-pay” for the period he was unjustly kept from duty. This suit is brought to ascertain whether he is not entitled to “full pay.”
    
      The United States v. Bartlett, (2 Ware, 9,) has never been approved as authority. It is cited in Story on Agency, § 435, with a semble. Judge Ware speaks of the payment as improvidently made. Besides, a collector of customs does not pretend to determine the law. The Comptroller of the Treasury is an officer specially deputed by law to “decide finally’7 upon accounts which are to be “adjusted and settled” in the Treasury Department. (Act 3d March, 1809, 2 Stat. L., 536.) He makes decisions and files opinions. (Act 25th June, 1868, section 6, 15 Stat. L., 75.) This payment was made upon a legal construction of a matter within the jurisdiction of quasi-judicial officers. The payment is presumably legal. (Wilkes v. Dins-man, 7 How., 89.) If there was any mistake as to authority, (which we deny,) paymant made thereon was binding on the Government. (2 Smith Leading Cases, 466.)
    The money earned while wrongfully kept out of service should no more be credited to the Government than the proceeds of authorship, or any other employment to which an officer may, without neglect of duty, devote his leisure hours. This is Dot an action of tort, or damages might be allowed for the unmerited disgrace which the dismissal entailed. The question is not, how much in a money point of view did he actually lose'? but, is the Government bound to allow an officer who has always been ready for duty, but wrongfully kept from it, half-pay or full pay 1
   Loring, J.,

delivered the opinion of the court:

The statement of facts shows that the petitioner was paid $6,166.53, as half of the pay and allowances of a first lieutenant of marines, from the 21st June, 1866, the date of the order dismissing him from the service, to the 10th July, 1873, the date of the order made to revoke his dismissal. And in this suit he alleges that he was, for the term of time specified, entitled to full pay and allowances, and claims as the residue of these about $7,000.

By the Constitution, the President is to appoint officers by and with the advice of the Senate; and under that provision he can remove officers only in the same way — that is, by and with the advice of the Senate — for the rule and maxim of law is that the power to remove is incident to the power to appoint; “ on jus est instiiuere, ejus est abrogare.”

But in 1789, when bills for the organization of the Executive Departments were before Congress, it was claimed that the power to remove officers was, from its nature, an attribute of the executive power vested in the President, and was indispensable to a due execution of the laws and the regular administration of affairs; and, after an animated debate, the power of the President alone to remove officers was affirmed by a majority of fourteen in the House of Bepresentatives, and the casting vote of the Yice-President in the Senate.

This early legislative construction was affirmed by the Supreme Court in,the case of JSx parte Hannen. (13 Peters B., 230.) In that case, the judge of the United States district court of Louisiana, having the power by law to appoint a clerk of the court, had removed the petitioner and appointed his successor; and the question made was as to the power of the judge to remove, and in their opinion the Supreme Court said as follows :

“ In the absence of all constitutional provision or statutory regulation, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. This power of removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained, in the early history of this Government. This related, however, to the power of the President to remove officers appointed with the concurrence of the Senate: and the great question was whether the removal was to be by the President alone or with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate jointly to remove, where the tenure of office was not fixed by the Constitution, which was a full recognition of the principle that the power of removal was incident to the power of appointment. But it was very early adopted, as the practical construction of the Constitution, that the power was vested in the President alone, and such would appear to have been the legislative construction of the Constitution.”

And the court, after referring to a difference in phraseology in the last of the acts organizing the Executive Departments, concludes as follows:

“ The change of phraseology arose probably from its having become the settled and well-understood construction of the Constitution that the power of removal was vested in the President alone in such cases, although the appointment of the officer was by the President and Senate.”

On this authority there are two distinct constitutional powers of removal: one vested in the President and Senate as incident to their power of appointment; the other vested in the President alone, as an attribute of the executive power belonging to his office. And as to .this, and propably in consequence of the construction made, the form of commissions adopted for officers of the Army and Navy and Marine Corps would seem intended to prevent all question ; for now the commissions run, “ for and during the pleasure of the President.” This no one can determine and declare but himself; and when he declares it the commission necessarily expires by the express terms of its limitation.

But it was contended for the petitioner that the order of dismissal in this case was not in legal effect the order of the President, because it contained no reference to his authority, and was signed only “ Gideon Welles, Secretary of the Navy.” But this point was settled in the case of Wilcox v. Johnson. (13 Peters R., 498.) In that case, the Supreme Court decided that a direction signed by the Secretary of War, with his name only, “ J. C. Calhoun,” and without even the addition of his office, was in legal effeet the order of the President. In that case, as in this, the power exercised belonged to the President, and did not belong to the Secretary, and he could legally exercise it only as the organ of the President. And the presumption of law was therefore that he so used it.

On the authorities cited we think the order of dismissal was legal in form and efficient.

And if the order of dismissal had not been efficient, the petitioner would have been removed by the appointment of his successor by the President, “by and with the advice of the Senate.” Justice Story, in commenting on such a new appointment, in his Commentaries on the Constitution, (sec. 1538,) says as follows: “In short, under such circumstances, the removal takes place, in virtue of the new appointment, by mere operation of law. It results, and is not separable, from the appointment itself.” And it has been said that in the case of Ex parte Hannen, before cited, the judge of the district court had removed the clerk and also appointed his successor. And as to the effect of such new appointment, the Supreme Court, as shown in the brief for the defendant, said as follows: “ The power of the court was a continuing power, and the mere appointment of a successor would be,per se, a removal of the former incumbent, so far as his rights were concerned.” (13 Peters R., 141.) And the nomination of George B. Haycock was expressly made by the President to tbe Senate, "vice First Lieutenant Thomas L. McElrath, dismissed.” The appointment of George B. Haycock was, therefore, to the vacancy in the legal complement of first lieutenants of marines created by the removal of the petitioner. And, by the Constitution, Congress is to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces. And this is a power to fix the quota of every grade of military and naval officers. And the complement of first lieutenants of the Marine Corps was then fixed by law at thirty, and was filled by the appointment of Lieutenant Haycock. In these circumstances, the President’s revocation of his order dismissing the petitioner could neither displace Lieutenant Haycock nor increase the complement fixed by law by the addition to it of the petitioner; and he, having been once dismissed from the service, could be restored to it only by a new appointment made by the President, by and with the advice of the Senate, and filling a vacancy.

Acts of Congress were referred to in the argument which we think do not affect the case: 1st. The Act July, 1852, (12 Stat. L., 596,) which requests the President to dismiss any officer whose dismission would promote the public service. This certainly did not restrict the President’s power to remove. 2d. The Act 3d March, 1865, (13 id., 489,) which entitled an officer dismissed to apply for a court-martial. The petitioner did not so apply, and therefore never brought himself within the act. 3d. The Act July 13,1866, (14 id., 92]) which enacts that intime of peace no officer shall be dismissed the service except in pursuance of the sentence of a court-martial. This act was not in force when the petitioner was dismissed.

On this part of the case, we are of opinion that from and after June 19,1866, the date of his dismissal from the service, the-petitioner was'not a first lieutenant of marines, and is not entitled to the pay he claims, and was not entitled to that he received.

The United States, by the counter-claim .filed by them, claim to recover the sum of $6,106.53, paid to the petitioner under the circumstances stated in the finding of facts, and we think the United States are entitled to judgment for such recovery, because they are not bound by the mistakes of their officers in the matters committed to them, whether such mistake be of law or of fact.

By the law of agency applicable to individuals, the principal is bound to the full extent of the authority he has apparently given to lhs agent. But by the law of agency belonging to the Government, it is liable only to the extent of the authority it has actually given to its officers. And the reason of the difference is, that an individual has an election whether he will act for himself or by an agent; and if he elects the latter, that should not affect the rights or equities of third persons. But the United States have no such election. They can act only by their agents, and “their name is legion.” And to subject the United States to liability for all the acts of-commissiou or omission of all their agents would be ruinous to the public interests. In the case of The United States v. Kirkpatrick, (9 Wh. R., 720,) the Supreme Court said as follows: “The general principle is that laches are-not imputable to the Government; and this maxim is founded, not on the notion of extraordinary prerogative, but upon a great public policy.” And the meaning of the rule which the Supreme Court declare to be a mamim is, that the United States do not guarantee either the capacity, the integrity, or the care of their officers, and are not responsible for their deficiencies in either. And as the rule must be as broad as its reason, and its reason is the public protection, it overrides individual equities. Therefore, in the case of Dox v. The Postmaster-General, where the suit was on a postmaster’s bond, and the principal was solvent and able to pay his debts when the right of action accrued, and the Postmaster-General was liable by statute for sums due from delinquent postmasters, if he did not cause a suit to be instituted within six months after a default, and he delayed suit for five years, and until after the principal had become insolvent, it was held that the sureties were not discharged, because laches could not be imputed to the Government.

And as this rule is founded on “a great public policy,” established for the public protection, it does not admit of exceptions,but includes mistakes of law as well as mistakes of fact, because the one may be as inj urious to the public interests as the other. In the case of The United States v. The Bank of the Metropolis, (15 Pet. R., 377,) the defendants claimed credits or a set-off, consisting of accepted drafts on the Postmaster-General, the Hon. Amos Kendall. It was contended that his predecessor, Postmaster-General Barry, had made illegal allowances, and that these should be disallowed by Mr. Kendall. As to this the Supreme Court said as follows:

“The third instruction asked the court to say, among other things, if the credits given by Mr. Barry were for extra allow-anees, wbich the said Postmaster-General was not legally authorized to allow, then it was the duty of the present Postmaster-General to disallow such items of credit. The successor of Mr. Barry had the same power, and no more than his predecessor; and the power of the former did not extend to the recall of credits or allowances made by Mr. Barry, if he acted within the scope of official authority given by law to the head of the Department. This right of an incumbent in reviewing a predecessor’s decisions extends to mistakes in fact, arising from error in calculation, and to cases of rejected claims in which material testimony is afterward discovered and produced. But if a credit has been given, or an allowance made, as these were, by the head of a Department, and it is alleged to be an illegal allowance, the judicial tribunals of the country must be resorted to to construe the law under which the allowance was made, and to settle the rights between the United States and the party to whom the credit was given. It is no longer a case between the correctness of one officer’s judgment and that of his successor. A third party is interested, and he cannot be deprived of a payment on a credit so given but by the intervention of a court to pass upon his right. No statute is necessary to authorize the United States to sue in such a case. The right to sue is independent of statute.” — (15 Pet. R., 377.)

The mistake referred to in this citation was assumed and expressed to be a mistake of law, for the resort to the judicial tribunals was to be had “to construe the law under which the allowance was made.” And we think that the citation is an authoritative declaration of the Supreme Court that, where a payment is made to an officer by a mistake of law in a Department, a suit may be maintained by the United States for the recovery of the money paid. And if the United States could maintain a suit for the recovery of the $6,106.53 paid to the petitioner, they can recover it under the counter-claim filed here, for the terms of the act of 1863 extend not only to sums certain, but even to unliquidated damages.

And it is manifest that the petitioner has no equitable claim to the money he received. He rendered no service, after his dismissal, and he intended to render none, for he resigned before he was dismissed, and when he applied to be reinstated he at the same time sent in his resignation. And the general rule of law and equity is, that where a man has received money to which, ex cequo et bono, he is not entitled, an action lies for its recovery. The only exception to this rule is that where between individuals the money has been paid by a mistake of law, it cannot be recovered. But by the text-books this rule rests on no principle, but only on expediency in the litigation of individuals. And on the authorities, and for the reasons stated, we think the rule not applicable to the United States.

The judgment of the court is that the United States recover from the petitioner the sum of $6,106.53, paid to him under the circumstances-stated in the finding of facts.

Nott. J.,

concurring:

I agree in the opinion of the court so far as it relates to the facts of this case.

If any business or official relations had subsisted between the claimant and the Government from the date of his dismissal to the date of its revocation, I should not-be prepared to say that a mistake of law on the part of the Second Comptroller of the Treasury would furnish a cause of action to the Government. If the Second Comptroller, in the case of an officer of the Army, were to give a construction to a statute different from that which the judiciary might subsequently, give, whereby the officer would receive greater pay or larger allowances than the law (as construed by the court) intended, I am not prepared to say that the Government could re-open the transaction and recover back the overpayment as money paid without legal authority in its official agents. But, in this case, the claimant was an utter stranger.to the Government, the order of the Secretary, of the Navy creating no liability and giving him no claim or» account for the Second Comptroller to adjust.

I think it proper to add to the decision of this case that the facts on which the late Second Comptroller of the Treasury rendered his decision are not before the court, and that the counsel for the defendants has presented the mistake as one of law. The decision is so different from others made by the accounting-officers of the Treasury in somewhat similar cases that I am inclined to suspect that if all the facts were before the court it would be found that the mistake was one of fact and not of law.

Peck, J., was absent when the case was heard, and took no part in the decision.  