
    Gilbert E. Winters v. The United States.
    
      On the Proofs.
    
    
      A commissary of subsistence in the volunteer service is dismissed by an order from the War Department without specifying any cause. By order of the President the order of dismissal is ‘1 revoked5 ’ and the claimant is ‘ ‘ restored to his former position and rank in the service
    
    The rule in Smith’s case (2 C. Cls. R., p. 206) is reaffirmed ; and where an order * of the War Department dismissing a military officer is revoked by the President, the officer is entitled to Ms pay from the date of his dismissal to the date of its revocation.
    Mr. A. L. MeRriman for the claimant:
    The petition in this case avers that in the month of March, A. D. 1863, claimant was commissioned a commissary of subsistence, with the rank of captain, in the volunteer army of the United States; that he entered upon the discharge of his duties as such officer, and continued to discharge said duties until the 31st day of December, A. D. 1863, when he was summarily dismissed the service by order of the Secretary of War, issued in the month of September, A. D. 1863; that said order was issued without just causo; that by reason thereof he was' compelled to and did remain out of service until the 3d day of March, A. D. 1865, when said order of dismissal was revoked by the President of the United States, and petitioner was restored to duty and his rank; that during the time he was out of service, as aforesaid, he was ready and willing to perform the duties of his office, and endeavoring to procure the revokal of said order of dismissal which eventually issued. All the above facts are fully and directly proven by the evidence in the case.
    This case is exactly analogous to that of Thornton Smith v. The United States, 2 C. Cls. ft., p. 206, in which the court held the claimant entitled to pay and emoluments for the period he was unlawfully kept out of service, upon exactly the same averments and proofs that are made in this case.
    The Deputy Solicitor for the defendants:
    It is not necessary to controvert the facts in the petition, in order to specify wherein the history of the case, in the view taken by the solicitors, differs from that in the plaintiff’s brief. Take the argument of the brief, and .it may be asked whether the whole' subject-matter would' not have assumed another feature altogether had this discharge of Captain Winters been- based on the judgment of a general court-martial, approved by the President. Then any further attempt to give renewed force to the commission so as to make it the means of breeding yet more pay and emoluments, would have been seen in the-true light as against both law and public policy; but coming, as the discharge did, from the President, the claimant is still nowise benefited, as the President’s action in the discharge of a commissioned officer had all along, from 1806, been coextensive with the sentence of a general court-martial: “ nor shall a 'commissioned officer be discharged the service, but by order of the President of the United States, or by a sentence of a general court-martial.” (Articles of War, 2 Stat., 359.)
    It was not malfeasance in army officers alone against which guards and checks were needed. The public service might be jeoparded by acts' far short of this, and the 17th section of the act of 17th July, 1862, (12 Stat., 596,) provided for a yet wider range of discretion in the President than that divided one theretofore exercised in common with a general court-martial. He “ was now further authorized and requested to dismiss and discharge from the military service, either in the army, navy, marine corps, or volunteer force in the United States service, any officer, for any cause, which, in his judgment, either rendered such officers unsuitable for, or whose dismission would promote the public service.” After the full exercise of this power thus defined, there was no mode provided for reinstating any discharged officer, save under a new nomination to the Senate. There had been an absolute legal extinguishment of all the claimant’s rights under this commission, and it arose from the act of the President in the discharge, final and conclusive as against all else than some subsequent concurrent action of the Senate.
    The solicitors are aware of the decision in the case of Thornton Smith, and how analogous the averments and proofs there seem to be to this case. They have no other alternative, however, than to reaffirm their own settled convictions as they would on a motion for a rehearing in that matter, were it pending.
   Casey, C. J.,

delivered the opinion of the court:

The claimant was appointed a commissary of subsistence of volunteers, with the rank of captain, in the service of the United States, by commission, dated 14th of March, 1863. On the 18th of September, 1863, for some cause which the record and evidence does not disclose, the claimant was, by order from the War Department, of that date, dismissed the service. By an order of the President, dated March 3, 1865, this order of dismissal was revoked and the claimant restored to his former position and rank in the service.

The evidence shows that after his dismissal the claimant constantly and persistently followed up the case until he was restored by the order above referred to. His claim is for his pay and allowance while the order of dismissal was in force, and up to the date of the revocation.

In its main facts and features this case is precisely like that of Captain Thornton Smith, decided by this court, (2 0. 01s. B,., 206.) We may safely rest this case upon the principle so clearly and concisely stated by Judge Loring in the opinion delivered in that one. That judgment, however, is sustained by the uniform usage of the government in similar cases.

It has been held in the departments that a soldier illegally discharged from service, is entitled to his pay till the expiration of his term of enlistment; and that a soldier convicted of a crime, imprisoned, hut pardoned on the ground of his innocence of the offence, is entitled-to pay for the time he was imprisoned.

The case of Lieutenant Drane is very much like the present. In the year 1835 he wrote a letter to the Secretary of War which the latter chose to interpret as a resignation, and therefore ordered Drane’s name to he stricken from the rolls of the. army. Drane denied the construction put upon his letter, and appealed successively to Presidents Jackson and Van Burén for redress without avail. He next applied to President Tyler in 1841, who referred the matter to a board of officers, who reported that Drane “ was put out of service against his consent, without trial, and without having committed any military offence.” Thereupon the President ordered him “ to he restored to the army with the rank and station which he would have held had he not been dropped from the rolls, on the happening of the first vacancy of the appropriate grade in the 5th infantry, his former regiment.”

Upon his restoration the Secretary of War submitted to the Attorney General the question whether he was entitled to his pay and emoluments during the time the order remained in force. After a careful examination the Attorney General, Hon. John J. Crittenden, affirmed the right of Drane to the pay, &c., while the order of dismissal remained'in force. He says: The uniform usage in similar cases has been, as I understand, to allow compensation, and I am unwilling to disturb what the experience and wisdom of the past have practically settled. That usage séems to me not to be unreasonable. And I follow it the more readily in this instance because it furnishes some measure of redress to an injured citizen.”

These authorities are full and clear, and establish the right of the claimant to the pay claimed, beyond any doubt. Cases like this are to he distinguished from those where an officer is dismissed the service and reinstated by a new appointment. There he can claim no compensation for the intermediate time. For, in that case, he claims by virtue of the latter and not the former appointment, and payment can only be made from its date. But this class of cases rests upon the .principle that the party never was legally and rightfully out of the service, and that the revocation of the illegal or inadvertent order of dismissal leaves the former commission in full force, and the party entitled to pay the same as if no such order ever had been made.

It results from these views that the claimant is entitled to pay from the 31st of December, 1863, till the 3d of March, 186.6, deducting $130 on account of having received his pay twice for the month of October, 1863. This we find amounts to $1,703, and for this sum judgment is to be entered in his favor.  