
    SALLIE E. PAGE, Executrix, v. THE UNITED STATES.
    [No. 15745.
    Decided March 31, 1890.]
    
      On the Proofs.
    
    An officer on the retired list is dismissed' hy the sentence of a court martial. The record is transmitted to the Secretary of War, who issues an order of approval, which merely recites that the proceedings of the court have been “ by him submitted to the President.”
    
    Where it only appears by the order of the Secretary of War dismissing an officer that the proceedings of the court have been “by him submitted to the President,” it must be held that the case conies within the rule in Punkle’s (122 U. S. K., 543), and that it does not affirmatively appear that the President approved the sentence “ to be dismissed the service of the United States.”
    
    
      The Reporters’ statement of the case:
    The following are the facts as found by this court:
    I. On January 18, 1865, the claimant was mustered in as a second lieutenant in tlie Veteran Eeserve Corps of Volunteers, and served as such till September 20,1866, when he was honorably mustered out. October 3, 1866, he was appointed second lieutenant in the Forty-fourth Eegiment of Infantry, U. S. Army, and accepted the appointment the same day. August 3, 1870, he was transferred to the Tenth Eegiment of Infantry. September 29, 1871, by order of tbe President, he was retired from active service, and placed on the retired list of the Army •on account of wounds received in battle, i. e., the loss of his right arm.
    II. April 29,1874, a court-martial was convened at New York City, by virtue of Special Orders, No. 73, dated April 7, 1874, Headquarters Military Division of the Atlantic, for the trial ot Second Lieutenant Prank A. Page (retired). Before this court-martial Lieutenant Page was arraigned and tried on the following charges and specifications, viz:
    w Charge 1. — ‘ Presenting for payment a false and fraudulent claim against the United States, in violation of the act of March 2d, 18C3, chapter 67.’
    
      “Specification — ‘ In this : that Second Lieutenant Frank A. Page, United States Army (retired), having, on or about January 30th, 1873, sold and transferred his pay account and right to pay for the month of November, 1873, to the Piedmont and Arlington Life-Insurance Company of Richmond, Virginia, did, notwithstanding, personally present to Major P. P. G-. Hall, Paymaster, U. S. Army, a claim against the'United States for his pay for said month-of November, 1873, he, the said Page, well knowing that the said claim — inasmuch as he had previously sold and assigned all his right to and property in said pay as aforesaid — was wholly false and fraudulent. This at or near New York City, on or about December 3d, 1873.’
    u Charge II. — ‘ Causing to be presented for payment a false Imd fraudulent claim against the United States, in violation of the act of March 2d, 1863, chapter 67.’
    
      “Specification — 1 In this: that Second Lieutenant Prank A. Page, United States Army (retired), having, on or about January 30th, 1873, sold and transferred his pay account and right 1o pay for the month of January, 1874, to the Piedmont and Arlington Life Insurance Company of Richmond,Virginia, and having, further, on or about June 1st, 1873, sold and transferred the same account and right to J. H. Squier & Company, of Washington, D. C., did, further, on or about December "8th, 1873, sell and transfer the said account and right to Captain Thomas H. Norton, United States Army (retired), and did thus cause his claim for said pay for said month of January, 1874, to be presented for payment by said Norton to Major R. D. Clark, Paymaster, United States Army, he, the said Page, well knowing that said claim thus presented was wholly false and fraudulent, inasmuch as he had previously sold and transferred all his right and property therein to other parties as aforesaid. This at or near Washington, D. C., on or about February 5th, 1874.’-
    
      “Ohaege III. — 1 Conduct unbecoming an officer and a gentleman.’
    
      u Specification 1st. — 1 In this: that Second Lieutenant Prank A. Page, United States Army (retired), having, on or about January 30th, 1873, sold and transferred Ins pay account and right to pay for the month of November, 1873, to the Piedmont and Arlington Life Insurance Company of Richmond, Virginia, thereby enabling said company to receive to its own use from Major R. D. Clarke, paymaster United States Army, on December 3d, 1873, the pay due him for said month,, amounting to ninety-six dollars and twenty-five cents, did, notwithstanding, fraudulently and dishonorably present in person to Major P. P. Gr. Hall, paymaster United States Army, his claim for pay for the said month of November, 1873, and did then and there personally receive the amount thereof, namely, the said sum of ninety-six dollars and twenty-five cents, he, the said Page, well knowing that he had no right or property in said claim or payment; and thus in fact defrauding the United States out of the sum of ninety-six dollars and twenty-five cents, so caused by him to be twice paid as aforesaid. This at New York City, on or about December 3d, 1873.’
    
      “Specification 2d. — ‘ In this: that Second Lieutenant Prank A. Page, United States Army (retired), having, on or about January 30th, 1873, sold and transferred his pay account and right to pay for the month of January, 1874, to the Piedmont and Arlington Life Insurance Company of Richmond. Virginia, did thereafter, fraudulently concealing the fact of the former sale and transfer, again sell and transfer the said account and right to pay for the said month of January, 1874, to J.' H. Squier & Company, of Washington, D. C., thus dishonorably making use of his official position in the Army to deceive and defraud. This at or near Washington, D. C., on or about June 1st, 1873.’
    
      “Specification 3d. — ‘ In this : that Second Lieutenant Prank A. Page, United States Army (retired), having, on or about January 30th, 1873, sold and transferred his pay account and right to pay for the month of January, 1874, to the Piedmont and Arlington Life Insurance Company of Richmond, Virginia, and having further, to wit, on or about June 1st, 1873, again sold and assigned the said account and right to pay to J. H. Squier & Company, of Washington, D. 0., did, notwithstanding, fraudulently concealing the fact of his former sales- and transfers of the same, again sell and assign his said account and right to pay for the said month of January, 1874, to Captain Thomas H. Norton, United States Army (retired), thus dishonorably making use of his official position in the Army to deceive and defraud. This at or near New York City, on or about December 8th, 1873.’
    “To which charges and specifications the accused 2d Lieutenant Frank A. Page, U. S. Army (retired), pleaded 1 not guilty.’
    “Finding. The court, having maturely considered the evidence adduced, finds the accused, 2d Lieutenant Frank A. Page, U. S. Army (retired), as follows:
    “ CHARGE I. Of the Specification, ‘ Guilty, except the words “ he, the said Page, well knowing that the said claim — inasmuch as he had previously sold and assigned all his right to and property in said pay, as aforesaid — was wholly false and fraudulent,” and substituting therefor the words “ which said claim was false and fraudulent.”’
    “ Of the Charge, ‘ Hot Guilty.’
    “ Charge II. Of the Specification, ‘ Guilty, except the words “Captain Thomas II. Horton, United States Army (retired),” and substituting therefor the words 1 Messrs. Latham, Alexander & Company.”’
    “Of the Charge, ‘Guilty.’
    “ Charge III. Of the 1st Specification, ‘ Guilty, except the words “ ninety-six dollars and twenty-five cents,” wherever they occur, and substituting therefor “sixty-five dollars and forty-two cents,” and except the words “ fraudulently and dishonorably,” and the words “he, the said Page, well knowing that he had no right or property in said claim or payment,” and of the excepted words, Hot guilty.’
    “ Of the 2d Specification, 4 Guilty.’
    “ Of the 3d Specification, ‘ Guilty; except the words “ Captain Thomas H. Horton, United States Army (retired),” and substituting therefor “ Messrs. Latham, Alexander & Company.”
    “Of the Charge, ‘Guilty.’
    “ Sentence. And the court does, therefore, sentence him, 2d Lieutenant Frank A. Page, U. S. Army (retired), ‘ To be dismissed the service of the United States.’ ”
    III. The proceedings, findings, and sentence were transmitted to the Secretary of War, who wrote upon the record the following order, viz:
    “ War Department,
    “ Washington City, May 21th, 1874.
    “ In conformity with the 65th of the rules and articles of war, the proceedings of the general court-martial to the foregoing case, have been forwarded to the Secretary of War and by him submitted to the President.
    “ The proceedings and the findings upon the second charge and specification, and upon the third charge under its second and third specifications, are approved.
    “ With regard to the other findings, the remarks noted by Major-General Hancock, who convened the court, are concurred in as follows:
    “ ‘ The finding to the first specification is not approved. The sale of Lieutenant Page’s pay accounts and right of pay to the Piedmont and Arlington Life Insurance Company is not sustained by the evidence. The transaction was unquestionably a pledge as collateral security. But the court having found that it was a sale, it is difficult to account for the rest of the finding- to this specification, which describes the subsequent presentation of a claim against the United States for the same p&y as false and fraudulent, although it acquits Lieutenant Page of knowing that it was such.
    “ ‘In order to constitute fraud there must be a knowledge that the property belongs to another and a design to deprive him of it. If. these are wanting it is not fraud. So the word “false” used in this connection implies an intent to cheat or defraud. Moreover, if the transaction with the Piedmont and Arlington Life Insurance Company was a sale, as the court found it to be, how could the accused, knowing that he had made such a sale, present a claim for the same pay without knowing that it was false and fraudulent? By its finding to the specification the court convicts the accused of presenting a claim against the United States for his pay which was false and fraudulent, and yet acquits him of the charge of “ presenting for payment a false and fraudulent claim against the United States.” The finding to the first charge is therefore likewise disapproved.
    “‘Again, having by its finding to the specification of the 1st charge characterized the presenting of a claim for pay as false and fraudulent, the court, by its finding to the 1st specification of the 3d charge, say that he did not do it “fraudulently and dishonorably,” nor “knowing that he had no right or property in said claim or payment,” and this, notwithstanding that he "is by the same finding found guilty of “ defrauding the United States.”
    “‘The finding to this specification, however,convicts the accused of the facts upon which it is based.’
    “The sentence is approved.
    “ Second Lieut. Frank A. Page (retired) accordingly ceases to be an officer of the Army from the date of this order.
    “Wm. W. Belknap,
    “ Secretary of War.”
    The said Secretary also issued, May 27,1874, General Court-Martial Order Ho. 42, announcing the sentence of the court-martial, and that “ Second Lieut. Frank A. Page (retired) ceases to be an officer of the Army from the date of this order.” From the date of this order the claimant’s name has not been borue on the Army Register, and he has received no pay as an officer of the Army since that time.
    
      
      Mr. John G. Fay for the claimant:
    The lieutenant’s right to recover is based entirely upon the illegality of his dismissal from the Army. The case is 11 on all fours ” with the liunlde Case (122 U. S., 5á3 U. S.), and his rights are founded squarely and exactly upon the decision of the Supreme Court of the United States in that case.
    
      Mr. John 0. Chaney (with whom was Mr. Assistcmt Attorney-General Cotton) for the defendants:
    The case cited by claimant’s counsel fits a case where the President did not act at all; but when the facts appear that the President did act on the findings ot' the court-martial, we think it is unnecessary for him to act in express written words, and that his name must be signed to the order of dismissal. We should think that the same form, of order, inasmuch as the statute is similar in terms in the one case as in the other, would take a man out of the retired list, which places him in such list.
    In the Rankle Case the court say that “ his (the President’s) approval must be authenticated in some way to show, otherwise than argumentatively, that itis the result of his own judgment.”
    The investigation made of the case after the claimant had presented his objections to the manner of the attestation of the order of dismissal, and the objection that the President had not actually ordered his dismissal, shows that the action which had been taken was the result of his own judgment and not a mere departmental order.
   Weldon, J.,

delivered the opinion of the court:

In this proceeding, the claimant seeks to recover the pay of Prank A. Page deceased, as an officer on the retired list of the Army, whose name was stricken from the roll, on the 27th of May, 1874, in the execution of the sentence of a court-martial, which before that time, had found him guilty of the presentation of false and fraudulent claims, against the Government.

As the result of the execution of said sentence, the decedent has not received pay since said date, and this suit was brought to recover the retired pay of an officer of his grade, from said time, until the commencement of this case. It is insisted by the claimant, that the judgment of the court-martial is defective, because it does not affirmatively appear, from the allegations of the record, that the findings of the court, were submitted to, and approved by the President.

The same question was before this court in the case of Runkle v. The United States (19 C. Cls., 396), and on appeal, the Supreme Court held, that a record from which it could not be ascertained affirmatively, that the President had approved the findings of a court-martial, was not sufficient to justify the execution of the sentence (Runkle v. The United States, 122 U. S. R., 543).

It does appear in this case, that “ In conformity with the sixty-fifth of the Rules and Articles of War, the proceedings of the general court-martial in the foregoing case have beeu forwarded to the Secretary of War, and by him submitted to the President.” In that particular it is somewhat different from the allegations of the record in the Runkle case. In that case, it is stated, that “ the President is pleased to remit all of the sentence except so much thereof as directs cashiering,, which will be duly executed.”

It was insisted in the Runkle case, that such an allegation, in the findings of the court-martial, was sufficient to justify the inference, that the findings had beeu submitted to the -President, and approved by him, subject to the remission of all, except the cashiering. The Supreme Court said, in passing upou the legal effect of the record—

“But we are clearly of the opinion that it will not be sufficient unless it is authenticated in a way to show otherwise than argumentatively that it is the result of the judgment of the President himself, and that it is not a mere departmental order which might or might not have attracted his personal attention. The fact that the order was his own should not be left to inference only.”

While in this case, it does appear, that the record was submitted to the President, following the rule of construction in the Runkle case, it does not affirmatively appear, that the President approved the sentence “ to be dismissed the service of the United States.”

We do not find, a sufficient difference in substance, between the record in this case, and the record in the Runkle case, to justify a different result from that case, and therefore render a judgment for the claimant in the sum of $11¿572.75.

ííott, J., was absent from the city when the case was tried,, and took no part in the decision.  