
    BENJAMIN P. RUNKLE v. THE UNITED STATES.
    [No. 14246.
    Decided April 7, 1884.]
    
      On the Facts.
    
    The claimant, retired as major in the U. S. Army, December 15, 1870, was then on duty in the Bureau of Freedmen, &c., and continued thereafter on that duty. While on that duty he was, in the autumn of 1872, arrested and pláced on trial before a general court-martial, appointed by direction of the President of the United States. The charges and specifications embraced acts done while on duty, before, as well as after, he was retired. He was found guilty on the charges, and sentenced to be cashiered, to pay a fine, and to be imprisoned in a penitentiary. The sentence was confirmed in an order of the War Department stating that “the findings and sentence . are approved,” and that “the President (Grant) is pleased to remit all of the sentence, except so much thereof as directs cashiering.” More than four years and six months thereafter, President Hayes, having examined the record of the case, and being of opinion that the conviction was not sustained by the evidence, issued an order disapproving the conviction and sentence, and revoking the order of the War Department announcing the cashiering of the claimant. The claimant was thereupon replaced on the Army Register, and by order of President Hayes was paid ¡¡¡>9,195.27 for the time he was out of the Army, and has ever since received pay as a retired major, amounting, up to January 1, 1884, to $14,390.35. He sues in this action for longevity pay under the decision in Tyler’s Case, (16 C. Cls. R., 223; 105 U. S. R., 244;) and the government files a counter-claim for all the money paid him since the date of President Hayes’s order aforesaid. He contends that he was never out of the Army, because the court-martial that tried him, having been convened by direction of the President, was not lawfully appointed, and therefore had no jurisdiction to try him; and because, if it had jurisdiction, its sentence was never confirmed by President Grant, but only by the Secretary of War; and was disapproved by President Hayes. He contends, further, that he, being a retired officer, was unlawfully kept on duty, and was not, therefore, amenable to trial by court-martial, for acts done while on such duty.
    I. The President, as Commander-in-Chiof of the Army, has a right, virtute officii, to appoint a general court-martial. His right, in that respect, does not rest on the Act 29th May, 1830. (4 Stat. L., 417, oh. 179.)
    
      II.The provision of the Constitution (Art. V, Amendments) that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces,” in effect says that offenses in those forces shall be dealt with according to military law.
    III. The JPreedmm’s Bureau Act (13 Stat. L., p. 507, $ 3, ch. 90) authorized the detail of military officers, and service in the bureau by an officer was military service; and of his delinquencies therein a court-martial had jurisdiction.
    IV. The Act 21si January, 1870 (16 Stat. L., p. 62, ch. 9), prohibiting the • assignment to active duty of retired officers, would not affect the jurisdiction of a court-martial over offenses previously committed.
    V. A retired officer is subject to trial by court-martial; and a court-martial has jurisdiction of offenses committed after the officer was retired.
    VI. An order issued by the Secretary of War announcing the approval of a sentence, and stating that the President has been pleased to remit apart, is the act of the President, and legally confirms the sentence.
    VII.An order of a subsequent President disapproving the sentence of a court-martial, and revoking the order of his predecessor confirming it, is null and void.
    VIII.An order of a President that a person legally dismissed from the Army and illegally restored to it, be paid for the time he was out of it, confers no right, and the money may be recovered back from the person to whom it was paid.
    IX.An officer cannot maintain an action for his salary, unless he has a legal title to the office; mere occupancy is not sufficient.^ The claimant, having no legal title to the office, cannot recover longevity pay.
    X.The claimant is entitled to keep the pay he received while he was an officer defacto, under President Hayes’s order restoring him to the Army.
    
      The Reporters’ statement of' the case:
    This case was transmitted to the court by the Secretary of the Treasury under the Revised Statutes (§ 1063). The following are the facts as found by the court:
    I. April 22, 1861, the claimant was mustered in as a captain of Thirteenth Ohio Volunteer Infantry, and served as such till November 8, 1861, when he was mustered in as major. August 18, 1862, he was honorably mustered out. August 19,1862, he was mustered in as colonel of Forty-fifth Ohio Volunteer Infantry and honorably mustered out July 21,1864. August 29,1864, he accepted appointment as lieutenant-colonel of Veteran Reserve Corps, and was honorably mustered out October 5,1866. October 6,1866, he accepted appointment as major of Forty-fifth United States Infantry, became unassigned March 15, 1869, and was placed on the retired list as major United States Army December 15,1870.
    II, At the time he was so placed on the retired list he was on duty as a disbursing officer of the Bureau of Refugees, Freedmen, and Abandoned Lands for the State of Kentucky, and had been on that duty from April 11,1867, and continued on it, without any new assignment to it, until he was arrested for trial before a court-martial, as hereinafter shown.
    III. June 25,.1872, the following Special Order No. 146 was issued by the War Department: '
    “1. By direction of the President, a general court-martial is hereby appointed to meet at Louisville, Kentucky, on the 5th day of July, 1872, or as soon thereafter as practicable, for the trial of Second Lieutenant John L. Graham, 13th Infantry, and such other prisoners as may be brought before it.”
    Before the court-martial convened and organized under this order the said Runkle was anvigned and tried on the following charges:
    Charge I. — “Violation of the act of Congress approved March 2d, 1863, chapter 67, section 1.”
    Charge II. — “ Conduct unbecoming an officer and a gentleman.”
    The specifications presented under these charges were all based on acts alleged to have been done by the claimant while on duty as a disbursing officer of the Bureau of Refugees, Freedmen, and Abandoned Lands. There were thirteen specifications under the first charge and fourteen under the second. All the specifications averred acts done by him in the year 1871, except the 1st and 5th under charge I, and the 1st, 5th, and 14th under charge II, all of which averred acts done in 1870, before he was placed on the retired list. Of the 1st and 5th specifications under charge I, and of the 14th under charge II, he was found guilty. Ho was also found guilty of both charges: and was sentenced by the court to be cashiered, to pay the United States a fine of $7,500, and to be confined in such penitentiary as the President of the United States might direct for the period of four years; and in the event of the-non-payment of the fine at the expiration of four years, that he should be kept in confinement in the penitentiary until the fine be paid; the total term of imprisonment, however, not to exceed eight years.
    IV. The proceedings, findings, and. sentence of said court-martial were transmitted to the Secretary of War, who wrote upon the record the order set forth in the opinion of the court. The said Secretary also issued, January 16, 1873, a General Order of the War Department, No. 7, series of 1873, announcing the sentence of the court-martial, and that “ Major Benjamin P. Runkle, U. S. Army (retired), ceases to be an officer of the Army from the date of this order.” Prom the date of this order till after August 4,1877, the claimant’s name was not borne upon the Army Register.
    V. August 4, 1877, R. B. Hayes, President of the United States, made the following order:
    “Executive Mansion,
    Washington, August 4,1877.
    “In the matter of the application of Major Benjamin P. Runkle, U. S. Army (retired).
    “The record of official action heretofore taken in the premises shows'the following facts, to wit:
    “First. That on the 14th of October, 1872, Major Runkle was found guilty by court-martial upon the following charges, to wit:
    “ Charge 1. — ‘ Violation of the act of Congress approved March 2,1863, chapter 67, section 1.’
    “ Charge 2. — ‘ Conduct-unbecoming an officer and a gentleman.’
    “ Second. That on the 16th of January, 1873, W. W. Bel-knap, then Secretary of War, approved the proceedings of said court, and thereupon caused General Order No. 7, series of 1873, to issue from the War Department, by which it was announced that Maj. Benjamin P. Runkle was cashiered from the military service of the United States.
    “Third. That subsequent to the date of said General Order No. 7, to wit, on the 16th day of January, 1873, Major Runkle presented to the President a petition, setting forth that the proceedings of said court had not been approved by the President of the United States as required by law; that said conviction was unjust; that the record of said proceedings was not in form or substance sufficient in law to warrant the issuing of said order, and asking the revocation and annulment of the same.
    “Fourth. That in pursuance of this petition, the record of the official action theretofore had in the premises was, by direction of the President, Ulysses S. Grant, referred to the Judge-Advocate-General of the United States Army for review and report.
    “Fifth. That thereupon the Judge-Advocate-General reviewed the case, and made his report thereon, in which it is reported and determined, among other things, that in the proceedings had upon the trial of the case by said court, ‘ it is nowhere affirmatively established that he (Major Runkle) actually appropriated any money to his own use.’
    “ It also appears in said report that the conviction of said Runkle, upon charge one as aforesaid, is sustained upon the opinion that sufficient proof of the crime of embezzlement' on the part of the accused was disclosed by the evidence before the court. And with respect to charge two no reference to the same is made in said report, except to deny the sufficiency of the evidence in the case, for a conviction upon the fourteenth specification thereof; and it is to be observed that the thirteen remaining specifications under this charge are identical with the thirteen specifications under charge one.
    “The Judge-Advocate-General further finds and determines in said report as follows, to wit: ‘ For alleged failures to pay. or to pay in full? on the part of the subagents, ‘ I am of opinion that the accused camnot justly be held liable.’
    “ Sixth. That no subsequent proceedings have been had with reference to said report, and that the said petition of said Run-kle now awaits further and final action thereon.
    “ Whereupon, having caused the said record, together with said report, to be laid before me, and having carefully considered the same, I am of opinion that the said conviction is not sustained by the evidence in the case, and the same, together with the sentence of the court thereon, are hereby disapproved; and it is directed that said order No. 7, so far as it relates to said Runkle, be revoked.
    “R. B. Hates.”
    At the time of the issue by President Hayes of this order, the number of officers on the retired list of the Army was 300, and continued so until November 19,1877. During that period the claimant was carried on the Army records as additional to the number of retired officers allowed by law, until a vacancy occurred on said last-named date, since which date he has been borne on the retired list, and up to January 1,1884, has drawn pay to the amount of $23,585.62. Of this sum $9,195.27 was paid to him August 15, 1877, for the period from January 16,1873, the date of the order signed by Secretary Belknap, to the 4th of August, 1877, the date of the order of President Hayes.
    YI. August 7,1877, the claimant addressed a letter to the Paymaster-General of the Army, asserting his legal right to pay as a retired major for the period of time between the dates of those two orders. This letter the Paymaster-General referred to the Secretary of War, with the following indorsement:
    “Respectfully forwarded to the Hon. Secretary of War.
    “It has been enjoined that questions of payment in such cases shall be submitted to the Secretary of War. See letter of July 7, 1863, from Gol. J. A. Hardee, assistant adjutant-general, to the Paymaster-General, stating the orders of the War Department, that ‘An officer restored to the service either by the revocation of the order of dismissal or discharge, or by simple restoration, is not entitled to pay for the period that he was out of service, unless the same is expressly ordered by the War Department.’
    “ The language of the Judge-Advocate-General on this point is to the same effect. (See Judge-Advocate’s Digest of 1868, p. 266.) ‘ Where an order of the War Department for the dismissal, discharge, or muster out of an officer is subsequently revoked, and he reinstated in his former rank and position, it is competent for the President, in his discretion, to allow him pay for the interval during which-he was illegally separated from the service under the original order.’
    “ The course of military administration has, however, developed no precise rule on this subject, each case of a claim for pay by such an officer having been, in practice, determined by the special circumstances surrounding it.
    “Benj. Alvord,
    “ Pay mb-- General, U. S. Army.
    
    “P. M. G. Office, Aug. 9, 1877.”
    The Secretary of War returned the letter to the Paymaster-General, through the Adjutant-General, and when it reached the Paymaster-General it had on it the following indorsement:
    “ Respectfully returned (through the Adjutant-General) to the Paymaster-General.
    “ By the order of the President of August 4,1877, the approval of the proceedings and sentence in the case of Maj. B. P. Runkle, of date January 16, 1873, was revoked, the said proceedings and sentence were disapproved, and the order of dismissal was set aside.
    “ This order of the President must be accepted by this Department as revoking said order of dismissal from its inception and as annulling all its consequences. As Major Runkle was, at the time of his trial and sentence, an officer of the retired list, the fact that he has not been on duty in the interim can make no difference, since a retired officer is not subject to duty.
    “He will, therefore, be paid, whenever funds are available for that purpose. This indorsement has been submitted to and is approved by the President.
    “George W. MoOrary,
    
      “Secretary of War.
    
    “ War Department, Aug. *13,1877.”
    Upon receiving back the said letter with said indorsements the Paymaster-General made thereon this indorsement:
    “ Respectfully referred to Maj. Alexander Sharp, P. M. U. S. A., present. Major Runkle waslastpaid to include January 15,1873.
    “ Chas. T. Larned.
    
      “Acting Paym’r Gen’l U. 8. Army.
    
    “ C. T. L., P. M. G. O., August 15, 1877.”
    It was in obedience to the order of the President, signified by the above indorsement of the Secretary of War, that the claimant was paid the aforesaid sum of $9,195.27.
    
      Mr. G. F. Hamilton and Mr. M. F. Morris for the claimant:
    1. Neither his department commander (if indeed he was in military service) nor the general commanding the Army was Runkle’s accuser or prosecutor, and yet a court-martial appointed by order of the President assumed jurisdiction to try and sentence him. But it is argued in support of the jurisdiction of said court over Runkle that the power of the President to appoint courts-martial is a power conferred upon him by the Constitution, which creates him Commander-in-Chief of the Army. A full and complete answer to this argument is to be found in the same Constitution, section 8, article 1, which provides, inter alia, that “ Congress shall have power to make rules and regulations for the government of the land and naval forces.” It will be observed that a broad and positive distinction is here drawn by the Constitution between the command of the Army and the government of the Army. (See also Ex parte Milligan, 4 Wall., 4.)
    The court-martial had no jurisdiction over the charges upon which Major Runkle was tried, for the reason that said charges did not constitute a case arising in the land or naval forces.”
    
      The Constitution limits the jurisdiction of courts-martial to “ cases arising*in the land and naval forces” (fifth amendment to Constitution United States), and the Constitution, Congress, and the courts have zealously preserved to every one accused of crime, who is not attached to the Army or-Navy, or militia in active service, the right of trial by jury.
    The employment of Major Bunkle was in no wise military. His duties while connected with the Freedmen’s Bureau were purely civil; they were the duties of a clerk, and related exclusively to the care of freedmen. The bureau was not a branch of the military service, and the fact that officers of the Army might be assigned to clerical and financial duty therein did not and could not make it such.
    Courts-martial have no jurisdiction over a soldier himself for causes not military. (7 Howard; 61; Clode on the Forces of the Crown, Yol. I, page 158, sec. 144; Grant v. Gould, 2 H. & B., 99.)
    The acts of officers so assigned, as aforesaid, to duty in said bureau were the acts of civilian clerks, and such clerks are not amenable to the laws and jurisdiction of courts-martial. (16 Opinions of Att’y-Gen’ls, 13-48.)
    The misconduct and illegal acts with which Bunkle was charged were committed, if at all, after he had been placed on the retired list of the Army.
    By sections 1259 and 1260, Bevised Statutes of the United States, the employment of retired officers in the Army is limited to duty at the Soldiers’ Home and to professorship in military academies.
    The retention of Major Bunkle' on duty in the Freedmen’s Bureau after his retirement, December 15,1870, was in plain violation of law. His duties were illegally forced upon him; and it has been held uniformly in this country and in England tha L misconduct and offenses committed in the performance of duties illegally and unauthorizedly imposed does not subject a soldier even in actual service to the jurisdiction of courts-martial. (7 Howard, 61; 4 Taunt., 67-; 4 Maulé & Selw., 400; 2 H. BL, 103, 537; 7 Johns., 96.)
    The charges, therefore, upon which Major Bunkle was tried, founded upon acts civil in their nature, committed, if at all, after his retirement, and enforced illegally upon him, could not fall within the jurisdiction of courts-martial.
    
      2. The sentence of said court-martial pronounced against Runkle was not approved by the President, as required by law. The proceedings and sentence of that court were approved by William W. Belknap, Secretary of War.
    In all cases tried by courts-martial appointed by the President, and in all cases where the sentence is dismissal from the service, the whole proceedings and sentence must be approved or acted on by the President; and the power thus vested in the President by Congress is a judicial power, and cannot be delegated or vicariously used.
    3. If, as we contend, the court-martial tryiDg him had no jurisdiction over the person of Runkle, or of the charges upon which he was tried, and if the proceedings and sentence of said court were never laid before, examined, and approved by the President, it follows as an inevitable consequence that the sentence of said court-martial cashiering Major Runkle and dismissing him from the Army was illegal, void, and inop-perative.
    4. The disapproval of the proceedings and sentence of said court-martial by President Hayes was not a restoration of Runkle to the Army. In contemplation of law, he was never out of the Army. By reason of an attempted usurpation by the Secretary of War of the authority and prerogatives of the President, he was prevented from asserting his right to his position in the service. The order of President Hayes set aside an illegal judgment of approval made by the Secretary of War, destroyed the force and effect of all orders and action based thereon, and, relating back to the date of said illegal approval, left Runkle in the rightful enjoyment of his rank in the Army, with all its rights, privileges, honors, and emoluments ; and Major Runkle is to-day, and has been since December 15, 1870, a retired officer in the United States Army, with the rank of major, and is entitled, under the decision in the Tyler case, to longevity pay and to the installments, if any, of his regular pay, withheld since the date of the reference of this claim to this honorable court.
    
      Mr. George L. Douglass (with whom was the Assistant Attorney-General) for the defendants:
    If the claimant was actually “cashiered” from the service January 16,1873, and from thatdate ceased to be an officer of the Army, it is no longer open to doubt that he could only be restored to office by a new appointment. (97 U. S., 437; 102 U. S., 426; 103 U. S., 237.)
    Assuming the regularity of the court-martial proceedings, the only requirement necessary to render the sentence valid is that it should have the Presidential approval, as provided in the Articles of War. The only question is whether the act of the Secretary of War in such a matter is, in fact or in law, the act of the President himself.
    If this was ever an open, question, it is so no longer. It has not only been affirmatively settled by ancient custom which has long since crystallized into law, but it has been settled by repeated judicial decisions. The courts, with great uniformity, have held that, as to the great mass of duties imposed upon him, the President can speak and act only through the heads of the Executive Departments in relation to subjects which appertain to their respective duties, and that what he does through their instrumentality is as much his own act as though done by himself in person. (Wilcox v. Jackson, 13 Pet., 512; 2 Curtis, O. Ct. B., 617 ; 2 Wall., 537 ; 17 O. Gis. B., 102.)
    The so-called restoration was a legal nullity, and could confer no legal rights whatever upon the claimant. He performed no service between the date of his dismissal and the date of his restoration, nor has he performed any since the latter date. Every dollar, therefore, paid out to him since August 4, 1877, has been improperly and illegally paid to and received by him, without warrant of law without any equitable consideration whatever; and upon the principle laid down in the McJElrath Case (12 C. Cls. B., 215; 102 U. S., 441) the defendants are now entitled to recover the whole of it upon their counter-claim.
   Drake, Ch. J.,

delivered the opinion of the court:

On the 15th of December, 1870, the claimant, then major 45th U. ,S. Infantry, was on duty as disbursing officer of the Bureau of Befugees, Freedmen, and Abandoned Lands for the State of Kentucky; which duty he had been performing, under military orders, for more than three years prior to that date.

On that day he was, by order of the President, placed on the retired list as major, but continued to perform that duty until the autumn of 1872, when he was arrested for trial before a general court-martial, appointed by direction of the President and convened at Louisville, Ky.

Before that court the claimant was arraigned' and tried on two charges, — I. “Violation of the act of Congress approved March 2,1863, chapter 67, section 1; ” and II. “ Conduct unbecoming an officer and a gentleman.”

He was found guilty, October 14, 1872, of both charges, and was sentenced by the court to be cashiered, to pay a fine, and be imprisoned in a penitentiary for the period of four years.

The proceedings, findings, and sentence of the court-martial were transmitted to the Secretary of War, who wrote upon the record thereof the following order:

“ The proceedings in the foregoing case of Maj. Benjamin P. Runkle, retired, United States Army, are approved with the exception of the action of the court in rejecting as evidence a certain letter written by a witness for the prosecution, and offered to impeach his credibility, also in unduly restricting the cross-examination of the same witness in relation to the motives influencing his testimony.
“ Inasmuch, however, as in the review of the case it was determined that the whole testimony of this witness could be excluded from consideration without impairing the force of the testimony for the prosecution, upon which the findings rest, the erroneous action of the court in this respect does not affect the validity of the sentence.
“The findings and sentence are approved.
“In view of the unanimous recommendation by the members of the court that accused shall receive Executive clemency on account of his gallant services during the war, and of his former good character, and in consideration of evidence by affidavits presented to the War Department since his trial, showing that accused is now, and was at the time when his offense was committed, suffering under great infirmity in consequence of wounds received in battle; and credible representations having been made that he would be utterly unable to pay the fine imposed, the President is pleased to remit all of the sentences except so much thereof as directs cashiering, which will be duly executed.
“Wi. W. Belknap,
Secretary of War.”

On the 16th of January, 1873, the War Department issued General Order No. 7, announcing the sentence of the court, and that from that date the claimant ceased to be an officer of the Army.

From the date of this order till after August 4, 1877, the claimant’s name was not bhrne on the Army Register.

On the last-named date President Hayes made the Executive order set forth in finding Y, disapproving the conviction and sentence of the court, and directing that the- said General Order No. 7 should be revoked.

From the date of this order to January 1, 1884, the claimant has drawn pay as a retired major, to the total amount of $23,585.62; of which $9,195.27 was paid him August 15,1877, for the period from January 16, 1873, the date of General Order No. 7, to the 4th of August, 1877, the date of President Hayes’s order.

Upon the facts thus stated in condensed form, but which are more fully set forth in the findings, have arisen the questions which have been submitted for our decision.

The claimant sues for longevity pay, basing his claim on the decision in Tyler’s Case (16 C. Cls. R., 223; 105 U. S. R., 244).

His contention is, that he was not, in law, at any time, out of the Army. In support of this position he takes the following grounds:

I. That the court-martial before which he was tried was not lawfully appointed, and therefore had no jurisdiction to try him.

II. That even if lawfully appointed, it had no jurisdiction of the charges and specifications alleged against him.'

III. That the sentence of the court-martial was never confirmed by the President.

IY. That the sentence was disapproved, and the War Department’s order No. 7 revoked, by the order of President Hayes; which it is claimed was the only Presidential action ever had on the proceedings of the court.

We will consider these propositions in their order.

I. That the court-martial ivas not lawfully appointed. If this position be sustained, then, of necessity,'the whole proceedings of the court were unlawful, and had no effect to remove the claimant from the Army.

The sole ground taken in support of it is, that the court was appointed by the President, when it should have been appointed b.y a “ general officer commanding the Army of the United States, a separate army, or a separate department.”

■To sustain this position the claimant relies on the 72d Article of War, as found in the Revised Statutes; bat that Article has no bearing on this case, because it was not in existence when the court-martial was convened, but came into force in the Revised Statutes^ June 22,1874. The substance of it was in force, but not in those words, when the court was held that tried and sentenced the claimant. We must therefore go back of that time to find the exact terms of the law A^hich then existed.

In the act of April 10, 1806, “ for establishing Bules and Articles for the government of the Armies of the United States ” (2 Stat. L., 359, ch. 20), was established, for the first time after the adoption of the Constitution, a body of such rules and articles, among which was the following:

Article 65. Any general officer commanding an army, or colonel commanding a separate department, may appoint general courts martial, whenever necessary. But no sentence of a court martial shall be carried into execution until after the whole proceedings shall have been laid before the officer ordering the same, or the officer commanding the troops for the time being; neither shall any sentence of a general court martial, in time of peace, extending to the loss of life, or the dis-mission of a commissioned officer, or which shall, either in time of peace or war, respect a general officer, be carried into execution, until after the whole proceedings shall have been transmitted to the Secretary of War, to be laid before the President of the United States, for his confirmation or disapproval, and orders, in the case. All other sentences may be confirmed and executed by the officer ordering the court to assemble, or the commanding officer, for the time being, as the case may be.”

This article remained unchanged until May 29, 1830, when an act was passed to alter and amend it (4 Stat. L., 417, ch. 179), as follows:

“ Sec. 1. Whenever a general officer commanding an army, or a colonel commanding a separate department, shall be the accuser or prosecutor of any officer in the army of the United States, under his command, the general court-martial for the trial of such officer shall be appointed by the President of the United States.
u Sec. 2. The proceedings and sentence of the said court shall be sent directly to the Secretary of War, to be by him laid before the President for his confirmation, or approval, or orders in the case.
“ Sec. 3. So much of the sixty-fifth article of the first section of the ‘ act for establishing rules and articles for the government of the armies of the United States,’ passed on the 10th of April, 1806, as is repugnant hereto, be, and the same is hereby, repealed.”

Article 65 and this act were in force when the court-martial was appointed and when it sat, and they continued in force, as a part of the Revised Statutes, until superseded by Article 72.

Had they been before the claimant’s counsel at the argument, he would, we suppose, have taken the same position that he took in reference to Article 72, namely, that, aside from the act of May 29,1830, the President had no authority to appoint a court-martial under any circumstances. In our opinion such a position cannot be maintained.

By the Constitution the President is the commander-in-chief of the armies of the United States. Courts-martial are the creatures of orders; the power to convene them being an attribute of command. As commander-in-chief the President is authorized to give orders to his subordinates, and the convening of a court-martial is simply the giving of an order to certain officers to assemble as a court, and, when so assembled, to exercise certain powers conferred upon them by the Articles of War. If this power could not be exercised, it would be impracticable, in the absence of an assignment of a general officer to command the army, to administer military justice in a considerable class of cases of officers and soldiers not under the command of any department commander, as, for example, a large proportion of the officers of the general staff, and the whole body of the retired officers. The authority of the President to appoint general courts-martial has, in fact, been exercised, from time to time, from an early period, in a series of cases, commencing with those of Brigadier-General Hull, Major-General Wilkinson, and Major-General Gaines, tried in 1813-1816, and including that of Brevet Major-General Twiggs, tried in 1858. (Winthrop’s Digest, 200,388; Ives’s Military Law, 30.)

Our opinion then is, that the President’s order appointing the court that tried the claimant was a lawful order, and therefore that the first point of objection raised by the claimant against the action of that court is untenable.

II. The second point is, that even if the court was lawfully appointed, it had no jurisdiction of the .charges and specifications on which the claimant was tried. If this be so, then the whole proceedings of the court were a nullity, and the claimant never was put out of the army.

Two grounds were taken at the argument in support of this position. The first was, that the charges upon which the claimant was tried did not constitute a case arising in the land or naval forces; ” and as the Constitution limits the juristion of courts-martial to cases so arising; and as the offense charged must be military in its nature, and committed while in the military service; and as the claimant’s duties while connected with Bureau were purely civil; and as that Bureau wa's not a branch of the military service; therefore the court had no jurisdiction of the charges. These are positions which should be carefully considered.

And first, as to the constitutional question. Article V of the Amendments to the Constitution declares that—

“ No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger.”

Can this be regarded as a limitation upon the jurisdiction of courts-martial ? We are quite unable to see it in that light. On the contrary, is it not, in effect, an express constitutional affirmation and preservation of the unlimited right of administration of military justice through military tribunals, without the agency of grand juries % It so seems to us.

The great and fundamental proposition of that amendment is, that “ no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”

Standing alone, that would have extended to crimes of those descriptions committed in the Army or Navy; and no officer or man, in either service, could ever haAre been tried for such a crime, “ unless on a presentment or indictment of a grand jury.” From this would have resulted, beyond question, great confusion and serious obstruction of justice.

To avoid that was, doubtless, the very intent of adding the words “ except in cases arising in the land or naval forces.” The effect of those words is very plain. It is as if the constitution had, in terms, said, that as to such cases in those forces, whether of “ capital or otherwise infamous crime,” or of any lower grade of offense, no presentment or indictment of a grand jury shall be necessary, and they shall be dealt with according to military law. Hence that amendment, instead of' limiting the jurisdiction of courts-martial, leaves it to be exercised to the fullest extent, under such “rules for the government and regulation of the land and naval forces ” as Congress might, under the power given to it by the Constitution, see fit to prescribe.

So far then as the constitutional point is concerned, we are of the opinion that it has no relevancy to the question of the jurisdictional right of the court over the subject-matter of the charges on which the claimant was tried, except to sustain that right.

But in this connection the claimant contends, that the offense for which he could be lawfully tried before a court-martial must have been military in its nature, and that his employment in time of peace, upon purely civil duties in connection with the bureau, though under military orders, did not subject him to the jurisdiction of a court-martial.

In considering this point the first thing to be ascertained is whether the orders under which he performed those duties were authorized by law.

■ March 3,1885, was passed the "Act to establish a Bureau for the relief of Freedmen and Refugees” (13 Stat. L., 507, ch. 90). In section 3 of that act is this sentence:

“And any military officer may be detailed and assigned to duty under this act without increase of pay or allowances.”

This is all that the act contains in regard to military officers. There is in it no attempt to distinguish between military and civil duties, nor any specification of what kinds of duty such -officers might be required to perform; but the broad authority to assign them “ to duty under this act ”; that is, to any duty which the act authorized to be performed by any one. The claimant obeyed the order given him to report for duty in the Bureau, and he remained on duty there from April, 1867, to the autumn of 1872, when he was arrested for trial, — a period of more than five years, without, so far as appears, ever objecting that he was unlawfully assigned to that duty. Not only so, but he submitted to trial on charges alleging offenses committed while on that duty, without, so far as shown, once urging in defense that his duty in the Bureau was civil and not military, and therefore that the court had no jurisdiction to try him under those charges. Had he attempted such a defense, the answer might have been fourfold: 1. That the question was not whether the services he rendered while on that duty were, as now contended, purely civil and clerical, but whether they were rendered by him as a military officer, acting under lawful military orders: 2. That whatever service a military officer is lawfully ordered by his superior officer to perform is, in the eye of the law, a military service, though when performed by a private citizen, under the employment of others, it would be a purely civil service. It is the military character of the officer, acting under lawful military orders, which makes the duty a military one, whatever may be the particular description of work involved in the performance of that duty: 3. Whether the duty he was assigned to was military or civil, had no bearing on the question of the jurisdiction of the court over the subject-matter of the charges and specifications preferred against him, alleging offenses committed by him while on duty. If he had set up as a bar to the jurisdiction of the court, that the order assigning him to duty in the Bureau was unlawful, he would have been rightly informed, we doubt not, that that was a matter of defense against the charges, and had no connection with the question of the court’s jurisdiction: 4. That whether, while on duty, he was performing one kind of work or another, he was liable as a military officer to answer the charges.

In our judgment, the objection to the jurisdiction of the court-martial, based on the supposed non-military character of the services performed by the claimant in the Bureau, has no foundation in law or reason.

The remaining objection to the jurisdiction of the court of the subject-matter of the charges, is based on the fact that the acts constituting the offenses charged against him were done by him while he was on duty after the expiration of thirty days from the passage of the Act of January 21,1870 (16 Stat. L., 62, ch. 9), providing—

That no retired officer of the Army shall hereafter be assigned to duty of any kind, * * * and all such assignments heretofore made shall terminate within thirty days from the passage of this act.”

The claimant insists that his retention on duty in the Bureau after he was put on the retired list, December 15, 1870, was in plain violation of that act; that his duties, after that day, were illegally forced upon him; and that misconduct and offenses committed in the performance of duties illegally imposed do not subject a soldier, even in actual service, to tbe jurisdiction of courts-martial.

The first question here is, whether his retention on duty in the Bureau was, in fact, a violation of that law. Without undertaking to pass definitively on that point, we are content with simply noting the fact that the law does not specify a ease like that of the claimant. Let it be remembered that he was assigned to duty in the Bureau April LI, 1867; was on duty when that act was passed January 21, 1870; was still on duty when he was placed on the retired list December 15,1870; and remained on duty, without any new assignment to it, till he was arrested for trial in the autum of 1872.

The act prohibited future assignments of retired officers to duty; which did not touch the claimant’s case; for he was not assigned to duty after the act was passed.

The act declared that all assignments of such officers to duty, which had been made before its passage, should terminate within thirty days thereafter. Neither did this touch the claimant’s case; for when he was assigned to duty, and also when the act was passed, he was on the active list.

Such being the case, we can see how it might well be questioned, if necessary, whether the act at all reached the case of an officer retired nearly eleven months after its passage, at a time when he was on duty, and was simply allowed to continue on that duty. But it is not necessary to the decision of the' matter now under consideration, that we should decide that point one way or the other. There is another view of the subject which, in our judgment, settles this question.

This objection is founded on the assumed fact, that the offenses charged against the claimant, and of which he was convicted, were committed after he was retired, and therefore that the court had no jurisdiction of them. If this were wholly true in fact, we might have to meet the question now raised, but it is not wholly true. Under charge I, there were two specifications (the 1st and 5th), and under charge II, there was one (the 14th), each averring acts done by him in 1870, before he was retired; and of those three specifications he was found guilty, as he was also of both charges. This was enough to uphold the sentence of the court, for those specifications related to a time when there was not the least ground for disputing the right of the court to try him on them under those charges.

Furthermore: By section 18 of the act of August 3, 1861, u providing for the better organization of the military establishment,” (12 Stat. L., 287, ch. 42), it is declared that officers of the Army “ partially retired,” that is, “ placed on the list of retired officers,” ashall be subject to the rules and articles of war, and to trial by general court-martial for any breach of said articles; ” and Article 83, in force when the claimant was tried, said that—

“Any commissioned officer convicted before a general court-martial of conduct unbecoming an officer and a gentleman, shall be dismissed the service.”

So, as a retired officer he was subject to be tried by a court-martial; and as to the second charge, it was not at all necessary to his conviction, that the “ conduct unbecoming an officer and a gentleman,” should have been shown when he was on duty. Winthrop’s Digest (p. 39) says on this point:

“It is not necessary that the act or conduct of the officer should be immediately connected with or should directly affect the military service. It is .sufficient that it is morally wrong and of such a nature that, while dishonoring or disgracing him as a gentleman, it compromises his character and position as an officer of the army.”

Tbis disposes of the last of the claimant’s objections to the jurisdiction of the court-martial. We decide against'them all, and pass to other and graver matters.

As we have seen, the 65th Article of War provided that no “ sentence of a general court-martial, in the time of peace, extending tothe .... dismission of a commissioned officer . . . . shall be carried into execution, until after the whole proceedings shall have been transmitted to the Secretary of War, to be laid before the President of the United States for his confirmation, or disapproval, and orders in the case.”

The proceedings of the court in the claimant’s case were transmitted to the Secretary of War during the Presidency of Ulysses S. Grant, and on the I6th of January, 1873, the Secretary wrote thereon the order set forth above in this opinion.

The question is, whether by this order it appears that President Grant confirmed the sentence of the court. The claimant contends that it does not, and insists that the supposed confirmation was merely the act of the Secretary, and not that of the President, and so was no confirmation at all. It cannot be denied that this raises a question of no ordinary significance in the administration of military law; but we think it not of very great weight.

In the first place, it is important to note that there is not, nor ever was, any law requiring the President’s confirmation of the sentence of a court-martial to be attested by Ms sign manual.

In the next place, referring to the act of August 7, 1789, “ to establish an Executive Department, to be denominated the Department of War,” (1 Stat. L.' 49,) substantially retained in section 216 of the Revised Statutes, we find that the Secretary of War is to perform and execute such duties as shall be enjoined on or entrusted to him by the President relative to'the land or naval forces, and to conduct the business of the War Department in such manner as the President shall, from time to time, order and instruct.

We need not discuss the relations established between the President and the Secretary of War by that act; for that matter was long ago settled by the Supreme Court of the United States, and w'e have only to refer to its rulings.

In Wilcox v. Jaelcson, (13 Peters, 498,) the question was, whether an order of the Secretary of War directing certain public lands to be reserved for military purposes, was authorized under a statute declaring all lands exempted from preemption which are reserved from sale by order of the President. The Supreme Court held the order of the Secretary of War to be, in law, that of the President, and the opinion of the court uses this language:

“Although the immediate agent in requiring this reservation was the Secretary of War, yet we feel justified in presuming that it was done by the approbation and direction of the President. The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Both military posts and Indian affairs, including agencies, belong to the War Department, Hence we consider the act of the War Department in requiring this reservation to be made, as being in legal contemplation the act of the President; and consequently, that the reservation thus made was in legal effect a reservation made by order •of the President, within the terms of the act of Congress.”

In United States v. Eliason, (16 Peters, 191,) the question was, whether a regulation promulgated by tbe War Department was the act of the President; and the court said:

“The Secretary, of War is the regular constitutional organ of the President for the administration of the military establishment of the nation; and rules and orders promulged through him must be received as the acts of the executive, and, as such, be binding upon all within the sphere of his legal and constitutional authority.”

' After these decisions it cannot, in this court at least, be considered an open question, whether an approval of the proceedings and sentence of a court-martial, announced by an order of the Secretary of War, as in this case, is to be regarded as the act of the President.

It is not without use, in this connection, to refer to army precedents in like cases. We have obtained from the Department of Justice a copy of an unpublished opinion given June 6,1877, by Attorney General Devens to President Hayes in regard to* the case of the claimant; from which, with the permission of the head of that Department, we make the following extracts, embodying historical facts of interest and value:

“It is remarked by Major Bunkle’s counsel, in a printed argument filed with the papers, that all of our earlier Presidents-signed the approval of such sentences, and it is believed that it was only during the last Administration that the contrary practice prevailed.’
“ But I have before me several instances of the ‘ contrary practice’ happening prior to 1860, one of which occurred nearly half a century ago.
“Thus, in the case of First Lieut. William S. Oolquhoun, Seventh Infantry, who was tried by court-martial and sentenced to be cashiered in 1829, the determination of the President (which confirmed the sentence, except as to the disqualification from thereafter holding any office in the Army) was signified through the Secretary of War, Mr. Baton, in a statement signed by the latter, purporting to be by command of the President.’'
“ So, in the case of First Lieut. B. M. Cochrane, Fourth Infantry, who, in 1844, was sentenced to be cashiered by a court-martial, the determination of the President, confirming the-sentence, was signified through the Secretary of War, Mr. Wilkins. Here the latter made known the action of the President by indorsing upon the record of the proceedings and signing the following brief statement: 1 The proceedings, findings, and sentence of the court are approved. November 28,1844.’
“ So, in the case of Maj. George B. Crittenden, Mounted Biflemen, who was sentenced to be cashiered by a court-martial in 1848, the determination of the President, confirming the sentence, was announced through the Secretary of War, Mr. Marcy,. by a statement indorsed upon the record, and signed by the latter, which reads thus: ‘ The President approves of the proceedings and sentence in the case of Major Crittenden, and directs the proper order to be issued thereon.’
“ So, in the case of Brevet Lieut. Col. William R. Montgomery, major Second Infantry, who in 1855 was sentenced by a court-martial to be dismissed the service, the determination of the President, confirming the sentence, was in like manner signified through the Secretary of War, Mr. Davis.
“ So, in the case of First Lieut. John N. Perkins, First Cavalry, who in 1859 was sentenced by a court-martial to be cashiered, the action of the President confirming the sentence was in like manner signified through the Secretary of War, Mr. Floyd.
“ I am informed by inquiry at the office of the Judge-Advocate-Gen eral that numerous instances have occurred, since the case last mentioned, in which the determination of the President, confirming sentences of dismissal by courts-martial, has been signified and attested in the same way.”

We might go further and point to what seems to us to be incontrovertible internal evidence in Secretary Belknap’s order of its expressing not his, but President Grant’s decision; but this opinion has been extended to such length, that we forbear to discuss that subject. Our unhesitating judgment is, that the findings and sentence of the court were legally confirmed by President Grant, and that from the date of the official promulgation of their confirmation the claimant ceased to be an officer of the army.

The final question raised by the claimant is connected with the action of President Hayes, in his order of August 4, 1877, disapproving the sentence of the court-martial, and revoking General Order No. 7 of the War Department.'

Proceeding upon the assumption that “W. W. Belknap, Secretary of War, approved the proceedings of said court, and thereupon caused General Order No.- 7, series of 1873, to issue from the War Department,” President Hayes, as appears in his order, caused the record to be laid before himself, and “having carefully considered the same,” was “ of opinion,” [not that the court was without jurisdiction to try the claimant, but] “ that the said conviction is not sustained by the evidence in the case;” and thereupon disapproved the'conviction and sentence, and revoked General Order No. 7.

Was this a lawful exercise of the executive -power vested in him as President of the United States? We are clear in the conclusion that it was not. No such authority is expressly conferred upon him by statute, nor is it by any constitutional definition of his powers, nor can it be legitimately inferred from any written law.

The only revisory power over the proceedings of courts-marshal vested by law in the Executive, when President Hayes took the action referred to, was that conferred by the 65th Article of War, and that was simply “to confirm or disapprove.” Either confirmation or disapproval in such a case is a single and isolated act, intended to produce a single effect, -absolute in its purpose and result, complete when it is done, and with no authority vested in the Executive, by any written law, to recall, revoke, or modify the official act of confirmation or disapproval. Wherever a naked power is given to a public officer to do a single particular act in a single defined case, it may be laid down as an axiomatic rule, that when the act is once done the power is exhausted. Take, for instance, the President’s right to approve a bill passed by Congress, — a single act complete in itself: has it ever been dreamed that after a bill had been approved and placed in the national archives, the approval could be retracted ? And yet why not, if the President may revoke the approval of a court-martial’s sentence? And if he can set aside an executive confirmation of a conviction and sentence, why may he not annnl an executive disapproval of them, and require the sentence to be executed? If he can revoke a confirmation by his immediate predecessor, why not one made by any preceding President ? If he can, as in this case, go back and take up a sentence that had been confirmed and executed more than four years and a half before, and revoke it, why not do so after the lapse of any number of years? But we need not press questions or illustrations further. Our judgment is, that the act of President Hayes, purporting to revoke the sentence which President Grant had confirmed, was without authority of law, null, and void, and therefore could not possibly confer any right on the claimant to restoration to the army.

If anything more were needed to sustain this view, it could be found in the fact that, when President Hayes’s order was made, the number of officers on the retired list allowed by law, to wit, three hundred, was full, and there was therefore no place on that list for the claimant; and he was, without authority of law, borne on the army records, as additional to that number, until November 19, 1877, when a vacancy occurred.

If our conclusions be correct, it necessarily follows that the claimant cannot recover longevity pay in this suit, because his claim for it must be based on his being in office de jure, as well as defacto. When he sues here for that pay, he asserts a legal right; which, of course, cannot be sustained by mere occupancy of the office, but must be upheld by a legal title to it, or no judgment in his favor for the pay of the office can be rendered. (People v. Tieman, 30 Barbour, 193; People v. Hopson, 1 Denio, 574; People v. Nostrand, 46 New York, 375; Dolan v. Mayor, 68 Ibid., 274; Riddle v. Bedford, 7 Serg. & Rawle, 386; Dorsey v. Smyth, 28 California, 21; Stratton v. Oulton, Ibid., 44; Carroll v. Siebenthaler, 37 Ibid., 193; Meagher v. Storey, 5 Nevada, 244.)

The only remaining matter to be disposed of is the defendant’s counter-claim for all the money received by the claimant as pay since his supposed restoration to the army on the 4th of August, 1877, shown by the findings to have been $23,585.62 from that date up to January 1, 1884.

Of this sum, $9,195.27 was received by him from army paymasters, for the period from January 16, 1873, to August 4, 1877, during all of which time we hold him not to have been in the army at all, either de jure or de facto.

As appears in the findings, that money was paid him by the express order of President Hayes. That order, of course, justified the paymasters in making the payment; but did it preclude the United States from asserting the illegality of the order? We are of the opinion that it did not. If we are right in holding President Hayes’s order of August 4, 1877, to have been illegal, null, and void, then, inevitably, his order that the claimant should be paid for the time he was out of .the army was equally illegal, null, and void.

In regard, however, to the pay received by the claimant for the time between August 4, 1877, and January 1,1884, a different question is presented. By the act of the President the claimant, so far as the executive departments of the government were concerned, was restored to his place in the army, and was an officer de facto, though; if our views herein expressed be correct, he was not so de jure. In the cases of Miller, Montgomery, and Palen, just decided, we have held, that pay received by a defacto officer, cannot be recovered back by the government, and we so hold in this case. So much, therefore, of the counter-claim as includes the sum of $14,390.35, is disallowed.

The decision of the court is, that the claimant is not entitled to recover any longevity pay; that the defendants are not entitled to recover $14,390.35 of the counter-claim ; but are entitled to recover the remaining $9,195.27; and judgment will be entered accordingly.

Nott, J., read an opinion in the case of Lieutenant Miller (ante), and, the two being decided on the same day, his opinion in Miller’s case was likewise entitled and filed as his opinion in this.  