
    Captain Richard C. Duryea v. The United States.
    
      the Proofs.
    
    
      In the Army redu'ction under the Aet 1870, the claimant is mustered out by order of the President, Upon the recommendation of an examining board. He aoeepis and receipts for the one year’s additional pay given to sueh officers. But he now alleges that the proceedings of the examining board icere illegal and that he was deprived of his office without a lawful trial. He insists that his removal toas by an imconstitniionalproceeding, and that he therefore is still entitled to the salary of the office.
    
    I.The examining board authorized by the Act 15th July, 1870 (lfj Shut. L.,p. 318, § 11, chap. 294), was not aconrt-martial, hut an advisory board, •whose reports the President was not bound to follow implicitly and blindly-. If wrong were done to an officer, the President might have set aside the proceedings of the board.
    II.Where an officer, instead of showing cause against a report of the examining- board, acquiesced in its docisiou and took the one year’s, additional pay given to officers mustered out in such cases, ho cannot afterward attack the proceedings of the board.
    III.The order of the President mustering out officers of the Army under the Act 1870, § 11, cannot be collaterally impeached for irregularities of the hoard on whose recommendation ho acted.
    
      
      The Reporters’ statement of the case:
    Tlie following are the facts of this case as found by the court:
    I. On the 2Gth of December, A. D. 1801, the claimant was duly appointed captain in the First Begin)ent of Artillery, in the service of the United States, to rank as such from the 14th day of May, 1801, and so continued until mustered out. as hereinafter set forth.
    II. On the 5th of October, 1870, the following special order was issued:
    “ WAR DEPARTMENT,
    ■“Adjutant-General’s Oeeice,
    “ Washington, Oet. 5, 1879.
    “I. Under .section 11 of the act of Congress approved July 15, 1870, a board to examine officers ‘unfit for the proper discharge of their duties for any cause, except injuries incurred or diseases contracted in the line of their duty] will convene in this city October 17th, 1870, as soon thereafter as practicable.
    
      “Detail for the court [hoard]. — Major [General] W. S. Hancock, Brigadier-General Alfred H. Terry; Colonel C. H. Smith, 19thInfantry; Colonel Edward Hatch, 9thCavalry; ColonelB. S. McKenzie, 24th Infantry. Captain James McMillan, 11th Infantry, is detailed as recorder of the board.
    “The board will be governed by thé requirements of the act of Congress under which it is convened, and will report in each case the cause, degree, nature, and duration of the disqualification of the officer.
    “The members of the board will in every case be sworn to an honest and impartial discharge of their duties.
    “ By order of the Secretary of War
    “E. D. Townsend,
    “ Adjutant- General.”
    By special order of October 12, 1870, Col. P. H. linger was detailed as a member of the board, in place of Col. Edward Hatch.
    In pursuance of said order, the board convened in October,- and held several sessions by adjournment until December 15, 1870.
    Charges were preferred against the claimant, as follows:
    “ H’dq’rs 1st IJ. S. Art’y,
    
      “F’t Hamilton, JV. Y. H, August oth, 1870.
    “Ass’t Ad.t’t Gen’l.,
    
      "H’d(frs JDep’t Fast, H. Y. City :
    
    “Sir: In compliance with circular letter from H’dq’rs Dep’t East, of August 3d, .1870, received by me on yesterday, I have the honor to make tlie following report pertaining to the officers of my regiment:-
    # # # # # * #
    “ Capt. B. C. Duryea. Tliis officer lias rendered himself unfit for the position lie occupies by a continuous use of intoxicating liquors; his knowledge of his duties is only fair; he fails to secure the respect of his officers and men; his general information is only fair.
    # * * % # # *
    “Veiy respectfully; your ob’d’t serv’t,
    “J. Vogdes,
    “ Col. 1 st Arpy, Commanding.”
    
    “ H’dq’es 1st Abt’y,
    “ Fort Hamilton, N. Y. H., August 26, 1870.
    “ To the Ass't Adj’t Geneeal,
    
      "H’cltfrs FepH of the Fast, New Yorlc City:
    
    
      “ Sie: In reply to your communication of the 10th inst., which was received at this post during my absence on leave, I have the honor to submit the following names of witnesses and the enclosed documentary evidence in the case herein mentioned :
    “L’t L. A. Chamberlin, L’t Miltimore, Surg. Vollum, L’t Patterson, and Major Brannan.
    * . # # * # 4? *
    “Very resp’y, your ob’t serv’t,
    “J. VoeDES,
    
      “Colo. 1st Artillery, Commanding.”
    
    Among the documents ¡submitted were copies of the following charges and specifications before a court-martial, the finding of the court, and the order of the commanding-general thereon:
    “HEADQUARTERS DEPARTMENT OE THE IjAICES,
    “ Detroit, Michigan, September 28, 1870.
    “ I. Before a general court-martial which convened at Madison Barracks, N. Y., pursuant to Special Orders Bo. 86, August-10, 1870; Special Orders No. 94, August 26, 1870 ; and Special Orders No. 96, September 2, 1870, all from the headquarters of the Department of the Lakes, and of which Colonel B. C. Buchanan, 1st Infantry,' is president, was arraigned and tried—
    “ Captain Bichard C. Duryea, IstU. S. Artillery.
    “Charge 1 — Wrongfully'and knowingly selling, conveying, or disposing of property of the United States, furnished, or to be used, for the military service of the United States, in violation of the act of Congress approved March 2d, 1863.
    “ Specification 1st — In this: that he, Captain Bichard O. Duryea, 1st Artillery, U. S. Army', did wrongfully' and knowingly sell, convey, or dispose of to one W. J. a Sacket’s Harbor, New York, twelve (12) tons of bay, more or less,' property of the United. States, furnished, or to be used, for the military service of the United States. This at or near Madison Barracks, New York, in the month of June, A. D. 1869.
    
      u Specification 2cl — In this: that he, Captain Bichard O. Duryea, 1st Artillery, U. S. Army, did wrongfully and knowingly sell, convey, or dispose of to óne W. J. Godfrey, a citizen of Sacket’s Harbor. New York, six (6) tons of hay, more or less, property of the United States, furnished, or to be used, for the military service of the United States. This at or near Madison Barracks, New York, in the month of June, A. D. 1870.
    
      u Specification 3d — In this: that he, Captain Bichard C. Duryea, 1st Artillery, U. S. Army, did wrongfully and knowingly sell, convey, or dispose of to one W. J. Godfrey, a citizen of Sacket’s Harbor, New' York, eight thousand (8,000) pounds of coal, more or less, property of the United States, furnished, or to be used, for the military service of the United States. This at or near Madison Barracks, New York, on or about the 12th day of February, A. D. 1870.
    day “ Specification kth — In this: that he, Captain Bichard G. Duryea, 1st Artillery', U. S. Army, did wrongfully and knowingly sell, convey', or dispose of to one William Stokes, a citizen of Sacket’s Harbor, New York, three thousand (3,000) pounds of coal, more or less, property of the United States, furnished, or to be used, for the military' service of the United States. This at or near Madison Barracks, New York, on or about the 11th day of February, A. D. 1870.
    “ Specification 5th — In ibis: tliathe, Captain Bichard C. Duryea, 1st. Artillery, U: S. Army, did wrongfully and knowingly sell, convey', or dispose of to oneB. M. Earl, a citizen of Sacket’s Harboi, New York, two (2) cords of wood, more or less, property of the United States, furnished, or to be used, for the military service of the United States. This at or near Madison Barracks, New York, on or about the 26th day of December, A. D. I860.
    Charge II — Conduct to ihe prejudice of good order and-military discipline.
    
      Specification — In this : that he, Captain Bichard O. Duryea, 1st Artillery', U. S. Army, while in command of the post of Madison Barracks, New York, did permit one W. J. Godfrey', post trader at Madison Barracks, to use from the government fuel supplied for the use of the post, sufficient coal to supply a fire in a room of his trading establishment, which .room was used exclusively by himself and other officers as a place of resort: the amount of coal so used being twelve thousand (12,000) pounds, more or less. This between the-20th day of January and the 12th day of April, A. D. 1870.
    
      tbe 45th Article of War.
    that lie, Captain Richard C. Duryca, 1st Artillery, U. S. Ariny, while in command of the post of Madison Barracks, New York, was so drunk as to be incapable of properly performing his duties. , This at or near Sacket’s Harbor, New York, on or about the 20th day of May, A. D.. 1870.
    Captain Richard O. I)uryea, 1st Artillery, O'. S. Army, while in command of the post of Madison Barracks, New York, was so drunk as to be incapable of properly performing his duties. This at or .near Madison Barracks, New York, on or about the 25th day of May, A. I). 1870.
    he, Captain Richard C. Duryea, 1st Artillery, U. S. Army, was so drunk as to be incapable of properly performing his duties. This while in command of his company en route for the Canada frontier, on or about the 20th day of May, A. 1). 1870.
    Captain Richard O. Duryea, 1st Artillery, IJ. S. Army, was so drunk as to be incapable of properly, performing his duties. This while in command of his company and the U. S. troops stationed at Ogdensburg, New York, on the 27th and 28th days of May, A. D. 1870.
    Richard C. Duryea, 1st Artillery, U. S. Army, while in command of the post of Madison Barracks, New York, was so drunk as to be incapable of properly performing his duties. This at or near tbe village of Sacket’s Harbor, New York, on or about the 10th day of July, A. 1). 1870.
    Richard C. Duryea, 1st Artillery, U. •S. Army, while in command of the post of Madison Barracks, New York, was so drunk as to be incapable of properly performing his duties. This at or near the village of Sacket’s Harbor, New York, on or about the 1st day of August, A. D. 1870.
    Richard O. Duryea, 1st Artillery, U. S. Army, while in command of the post of Madison Barracks, New York, was so drunk as to be incapable of properly performing his duties. This at or near the village of Sacket’s Harbor, New York, on or about the 2d day of August, A. D. 1870.
    unbecoming an officer and gentleman.
    C. Duryea, 1st Artillery, U. S. Army, did attend a floral festival at the Masonic Hall, in Sacket’s Harbor, New York, so much unthe influence of liquor as to attract the marked attention those present. This oh or about the 25th day of June, A. 1870.
    
      
      “Specification 2<1 — rnthis: that lie, Oaptain Bicliard C. Duryea, 1st Artillery, U. tí. Army, while visiting the city of Water-town, New York, did become intoxicated, and did in this condition exhibit himself in the public streets of said city, and having entered the‘Jackman House’of said city, (lid go to sleep and so remain until ordered to leave the room by the proprietor; after which he did enter an ambulance which was standing in the stable yard of the ‘American Hotel’ of said city of Watertown, New York, and did there sleep for about the space of two (2) hours, exposed to the gaze of such persons as might enter the yard. This on or about the 27th day of August, A. D. 1870.
    
      “¡Specification 3d — In this: that he, Captain Bicliard O. Duryea, 1st. Artillery, U. tí. Army, has, by his frequent appearance in public while under the influence of liquor, to wit, on or about the following dates: The 5th of July, 18G9; 7th of April; 20th, 25th, 20th, 27th, and 28th of May; 25th of Jiine; 10th and 23d of July, and 1st, 2d, and 27th of August, 1870, and by his general conduct and deportment brought discredit and disgrace upon the uniform of the Army of the United States. This while stationed at Madison Barracks, New York, between the 14th day of April, A. D. 1809, and the 28th day of August, A. 1). 1870.
    “Additional OnARttE II — Violation of the 45th Article of War.
    
      “aSpecification 1st — In this: that he, Captain Bichard O. Duryea, 1st Artillery, U. S. Army, did appear before the recorder’s court in the city of Watertown, New York, to respond to a writ of habeas corpus, issued by said recorder for the body of a soldier of his command, so much under the influence of intoxicating liquors as to incapacitate him for the proper performance of his duties. This at the city of Watertown, New Yoik, on or about the 7th day of April, Á. D. 1870.
    
      “Specification 2d — In this: that he, Captain Bichard O. Duryea, 1st Artillery’, U. S. Army, while on duty as commanding officer of the post of Madison Barracks, New York, was so much under the influence of intoxicating liquors as to incapacitate him for the proper performance of his duties. This at or near Madison Barracks, New York, on or about the 25th day of June, A. D. 1870.
    
      “Specification 3d — In this: that he, Captain Bichard C. Duryea, 1st Artillery, U. tí. Army, while on duty as commanding-officer of the post of Madison Barracks, New York, was so much under the influence of intoxicating liquors as to incapacitate him for the proper performance of his duties. This at or near Madison Barracks, New York, on or about the 23d day of July, A. D. 1870.
    _ “Plea, ‘Not guilty-.’
    _ ’“Findings, ‘Not guilty.’
    “And the court does therefore acquit him.
    
      “The department commander cannot approve the findings of the court, on the 3d specification, 1st charge, and the specification of the 2d charge, without remarking that the acquittal of the accused throws the weight of the gross misappropriations of public property upon the acting assistant quartermaster. He cannot approve the findings of the court on the 2d and 3d specifications, charge 3d; 1st and 2d specifications of additional charge 1st, and 2d specification of additional charge 2d. With above twenty witnesses, including six commissioned officers, testifying to more or less intoxication on specified occasions, the accused lias been most fortunate in the benefit of the doubts raised by many witnesses in his favor.
    “ The proceedings of the court are. confirmed. Captain Duryea will be restored to duty.
    “ II. The general court-martial of which Colonel It. O. Buchanan, 1st infantry, is president, is dissolved.
    “By command of Brigadier-General Cooke:
    “L. IT. Pelottze,
    
      "Assistcmit A djutant- General
    
    The members of the board were duly sworn by the recorder, and the recorder was duly sworn by the president of the board, all of which oaths were administered in the presence of the claimant. No judge-advocate appeared in the case throughout the proceedings.
    Captain Duryea was called before the board, the orders con-, vening the board were read to him, and he was asked if he had any objection to any member; to which he replied in the negative. He was also asked how much time he desired to prepare to meet the charges against him, and he responded that he desired fifteen days, in order to be ready with the testimony and papers in his defense.
    It was determined by the board that Captain Duryea be allowed to submit through the recorder, to such officers as he desires statements from, interrogatories in regard to his case; also that he be permitted to lay before the’board any papers tending to show cause why he should not be mustered out, and to make any statement in his defense
    The board adopted the following rules:
    “I. Any officer who maybe brought before the board will be entitled to produce any testimony whatever which will tend to rebut the allegations against him, or to show that he is not unfit for the service, and will be permitted to lay before the board any letters or othér papers, sworn to or not, which will have the same tendency. JTe will also be permitted to make any proper statement in his own behalf.
    
      “ II. At the request of any officer who is before the board, witnesses who may be within the District of Columbia will be summoned to appear in person and testify.
    “III. The testimony of witnesses who are without the Dist. of Columbia will be taken by deposition, unless except in exceptional oases it shall appear to the board that justice cannot be done without bringing such witnesses personally before it; but the board will in all cases hear the testimony of Avitnesses who may voluntarily come from without the District upon the request of an officer who may desire their testimony.
    “IV. When depositions are to be taken in behalf of an officer, interrogatories addressed to the Avitnesses whose testimony is desired must be filed Avith the recorder of the board, who will send them to the witnesses for ansAver under oath. Should the board find it necessary to propound any interrogatories to Avitnesses Avho are not Avithiu the District, a copy, of them avíII be furnished the officer Avhose case is in question, in order that he may file cross-interrogatories should he see fit.
    may “V. The board wili consider tlie statements contained in the report submitted to it by the War Department as testimony bearing on the question of the fitness for service of the officers to whom they relate; but any officer avíII be entitled to file interrogatories in the nature of cross-interrogatories to be propounded to the officer or officers who have made reports or statements unfavorable to him, and the interrogatories so filed will be sent to the officers to Avhom they are addressed, to be answered under oath.”
    The charges, documents, and rules were read aloud to the claimant by the recorder. Among other proceedings were the following:
    “The president announced to Captain Duryea that the board had determined to send for an official copy of the proceedings of the general court-martial referred to in General Orders Ño. 26, just read, and hereinbefore sot forth. The president further stated to him that when the board had examined said court-martial proceedings in order to see for what offenses he was tried, interrogatories would be sent to other witnesses, after first having been shown to him or copies thereof furnished to him.
    “Captain Duryea said: Mr. President, there is one point that I Avisli to bring out — that the board has no right to take cognizance of any of the special allegations Avkicli came before that court; it comprises everything, and I think it might save us the trouble of making this examination. The judgment of that court must be conclusive, and should avoid and be a bar to any further consideration of these charges. The Constitution of the United States says that no person shall be put in jeopardy twice for the same offense. The principle of the law is, therefore, too plain to require argument.
    
      “ Under tlie 83d Art. of War an officer tried for conduct unbecoming an officer and gentleman is subject to dismissal if found guilty. That is, bis commission in the service is put in jeopardy, a distinct penalty having been presented by law, if found guilty.
    “The honorable board is called upon to investigate my fitness or unfitness for holding my commission on the same allegations on which it has already been put in jeopardy. These allegations, as contained in Lieut. Atwood’s report, covered and formed the basis of the charges preferred, and on which I was tried, as "will be seen .by examining them. ITe was the jndgeadvocateof the department and the judge-advocate of the court. The plea, therefore, of autrefois acquit it is respectfully but strenuously insisted, is, therefore, a complete bar to any proceeding here under those allegations; it takes from the board any jurisdiction or right to inquire into them, and, so far as this honorable board is concerned, any proceeding by it in the nature of an investigation or consideration even of these allegations would be coram nonjudiee and absolutely void, and Congress even could give no lawful authority to any tribunal whatever to again investigate them with a view to determine whether I should be subject to the same penalty, and in the language of the eminent jurist Lord Chief Justice De Cray, in the case of the Duchess of Kingston, 28 Howell State Trials, very wisely said:
    “ ‘From the variety of casesrelativeto judgments being given in evidence in civil suits, these two deductions seem to follow as generally true:
    , “ ‘1st. That the judgment of acourtof concurrent jurisdiction directly upon the point is as a plea, a bar, or as evidence, conclusive, between the same parties upon the same matter directly in question in another court.
    “ ‘Secondly. That judgment of a court of exclusivejurisdiction directly upon the point, is, in like manner, conclusive upon the same matter between the same parties coming incidental!y in question in another court for a different purpose.’
    “Oapt. Dury ea said: Mr. President, there is one thing further about it; the law authorizing this board declares that an officer shall have a hearing. This, evidently contemplates a trial and consideration of evidence under the usual common-law forms of procedure. Ilow ami to meet these allegations 1 They have once been the subject of specific investigation by a court of acknowledged jurisdiction, and I have been acquitted. . The law authorizing tins board certainly never contemplated the exercise of the unconstitutional prerogative of inquiring into the final judgment of another court. This board is not an appellate court; whether I shall be dismissed or not from the service now, on the report of this junior officer, cannot be tried on affidavits. Gentlemen, I have been put to a great deal of ex-pensein theother court toprotect myself against conspiracy — an expense to tbe amount of five hundred dollars. I am poor, and I want to get through with this as soon as I can. 1 thought, perhaps, when you saw I had already been tried and acquitted, on these allegations — for those charges and specifications before the court-martial cover every allegation which was handed to me here — that it might save time, and my time is money.
    “ The board was closed for deliberation, and after some time so spent was reopened, and the recorder announced to Gapt. Duiyea that the decision previously announced to him should stand, notwithstanding the objection presented by him.”
    The whole record, including the evidence, of said court-martial was thereupon admitted in evidence; witnesses were also called and examined, and were cross-examined by Captain Duryea. On the 12th of December, 1870, the following judgment was made by the board, and duly entered of record:
    “ The board was then closed, and after mature deliberation upon the evidence adduced, the board is of the opinion that Captain Richard C. Duryea, 1st Artillery, is disqualified for the service by reason of the excessive use of intoxicating liquors indulged in for a very considerable period; and the board does, therefore, recommend that he be mustered out of the service of the United States.
    “Winf’d S. Hancock,
    
      “Major-General, U. 8. A., President of Board.”
    
    On the loth of December the following order -was issued, and the claimant was mustered out of the service :
    “WAE DEPARTMENT,
    “Adjutant-General’s Oeeice,
    
      “ Washington, December 15,1870.
    #■ » # * # # *
    “ By direction of the President, on the recommendation of the board convened under section 11 of the act approved July 15, 1870, Captain Richard O. Duryea, First Artillery, is hereby mustered out of the service for cause other than ‘injuries incurred or disease contracted in the line of his duty.’ ******
    “ By order of the Secretary of War:
    “E. D. Townsend,
    
      “Adjutant- General.”
    The vacancy thus caused by the mustering out of Captain Duryea was filled by transfer of Capt. George Meade from the infantry, by a general order issued by direction of the President, dated July 2, 1871, to take effect January 1, 1871. Captain Meade resigned October 1,1874, and Chandler P. Eakin was regularly promoted and appointed by tlie President, by and with the consent of the Senate, in his place, as of that date. '
    IV. Subsequently the claimant received the one year’s pay allowed to officers thus mustered out, and signed and delivered the following receipt therefor:
    
      “The United St ates to Richard G. Duryea, Capt. 1st Artillery.
    
    
      
    
    “ I hereby certify that; the foregoing account is accurate and just. * * * I at the same time acknowledge that I have received of Wm. B. Rochester, paymaster, U. S. Army, this 8th day of February, 1871, the sum of twenty-four hundred & thirty-one dollars and — cents, being the amount and in full of said account, by ck. No. 3916 on asst, treas’r N. Y., $2,000, ck. No. 847 on U. S. Treas’y, $428, & credited to the U. S. $3.00.
    “R. C. Duryea,
    
      “Late Gapt. 1st Art’y.”
    
    V. The claimant was employed by the Engineer Corps of the Army as an inspector of harbor improvements from April 1 to July 16,1876; from July 1 to November 30,1877, and from August 16 to November 30,1878, at the rate of $160 per month, and was paid therefor by the defendants the total sum of $3,076.
    
      Mr. J. F. Manning for the claimant.
    
      Mr. George O. Wing (with whom was the Assistant Attorney-General) for the defendants.
   Richardson, J.,

delivered the opinion of the court:

After the suppression of the rebellion it became necessary, in the opinion of Congress, to reduce the number of officers of the Army. It was a difficult and delicate duty. To distinguish between the merits and disqualifications of different officers was no easy task, and whatever course might be taken, it. would unavoidably happen that some meritorious officers, who had served their country honorably and faithfully in its hour of trial in time of war, might be discharged.

To meet the necessities of the case as best they could, Congress inserted the following' sections in Army appropriation act passed July 15, 1870, chapter 294 (16 Stat. L., 318):

“Seo. 11. The General of the Army and commanding officers of the several military departments of the Army shall, as soon as practicable after the passage of this act, forward to the Secretary of War a list of officers serving in their respective commands deemed by them unfit for the proper discharge of their duties from any cause except injuries incurred or disease contracted in the line of their duty, setting forth specifically in each case the cause of such unfitness.
“The Secretary of War is hereby authorized and directed to constitute a board to consist of one major general, one brigadier-general, and three colonels, three of said officers to be selected from among those appointed to the Regular Army on account of distinguished service in the volunteer force during the late war, and on recommendation of such board the President shall muster out of the service any of the said officers so -reported, with one year's pay; but such muster out shall not be ordered without allowing such officer a hearing before such board to show cause against it.
“Sec. 12. The President is hereby authorized to transfer officers from the regiments of cavalry, artillery, and infantry to the list of supernumeraries; and all vacancies now existing, or which may occur prior to the first day of January next, in the cavalry, artillery, or infantry, by reason of such transfer, or from other causes, shall be filled in due proportion by the supernumerary officers, having reference to rank, seniority, and fitness, as provided in existing law regulating promotions in the Army.
“And if any supernumerary officers shall remain after the first day of January next, they shall be honorably mustered out of the service with one year’s pay and allowances. * *

The.claimant was a captain of the First Regiment of Artille^. The commanding officer of the regiment, in compliance with a circular letter from headquarters of his department, forwarded a list of officers in his regiment whom he deemed unfit for the proper discharge of their duties from causes other than injuries incurred or disease contracted in the line of their duty. The claimant’s name was among this list.

A board of officers was constituted in accordance with section eleven of the act, and this list of officers, with the accompanying documents, was laid before them. The claimant was duty notified, appeared before the board, and was fully heard in his defense upon the charges which were preferred.

The board was of opinion that the claimant was disqualified for the service, and recommended that he be mustered out. This was on the 12th of December, 1870. On the 15th of that month he was mustered out by order of the President, in accordance with the provisions of section eleven of the act.

The vacancy caused thereby was subsequently filled by the transfer thereto of Captain Meade, of the infantry, in accordance with the provisions of the twelfth section of the act, by an order of the President, which took effect January 1, 1871. Subsequently Captain Meade resigned, and Captain Bakin was duty appointed, by and with the advice and consent of the Senate, to take effect October 1, 1874, to fill the vacancy. On the Sth of February, 1871, the claimant received and accepted the one year’s pay allowed by section eleven to officers thus mustered out, and gave a receipt therefor.

He now contends that he was never legally discharged, and that he is, and has continued to be ever since 1870, a captain of artillery in the Army, and is entitled to the pay and emoluments of that office.

His claim is founded on the allegation that the proceedings of the board before which he was tried, and by which he was recommended for muster out, were in many respects irregular, illegal, and in violation of his constitutional rights. He regards it as a court convened to try the officers named in the list submitted to it upon criminal charges, and that all its proceedings were required to be conducted with the same formalities as those of a court-martial, otherwise the court itself would be an unconstitutional organization. He points out several alleged irregularities, among -which are, that there was no judge-advocate assigned to the board; but especially that the board received and admitted in evidence, against his earnest objection, the records of a court-martial previously held upon charges substantially the same as those laid before the board, and upon which charges he had been tried and acquitted.

It may be that the board did not proceed with that strict regard to the rules of evidence which are required in courts-martial and civil courts of justice, but it is not necessary for us to consider how far its irregularities extended. In our opinion the board was not a court of any kind. Its character is well described by Judge Nott in the case of Sherburne v. The United States (16 C. Cls. R., 499), in these words:

“The board of officers was an ex parte advisory board, intended merely to assist the President in the unpleasant duty of reducing the Army by a process of weeding out the least efficient officers, and it was in no sense a court or quasi judicial tribunal. In the second place, the act of 1870 did not contemplate discharges for offenses. The cause prescribed by section 11 (under which the claimant was discharged) was ‘unfitness.’ If the claimant had been guilty of conduct unbecoming an officer, or prejudicial to the service, there were abundant provisions of law for bringing him to trial before a court-martial and dismissing him from the service without the bounty of additional' pay. This act of 1870 was intended to reach an entirely distinct class of officers; it was in no sense penal; the officers against whom it operated were not criminals; the advisory board had no jurisdiction of offenses, and was without authority to put officers upon their trial for any fault.”

The board to ■which the claimant’s case was submitted being an advisory board, the proper time for him to have made objections and take exceptions to its proceedings and its recommendations was when the matter came before the President. It is true that the statute required the President to muster out officers reported to him and recommended therefor by such a board as unfit for the proper discharge of their duties. But while it may be that the President could not muster out any officer with one year’s pay, under the act of 1870, before January 1, 1871, without the recommendation of such a board, it is. clear that he was not obliged implicitly and blindly to follow every recommendation thus made to him. Had the claimant, presented to the President, through the Secretary of War, any sufficient reasons for setting aside the proceedings of this board, his complaints would no doubt have been heard and consideration given to them. He did no such thing. (Jn the contrary,, he acquiesced in the report, submitted to the decision of the Pfesident thereon, took his one year’s pay allowed by statute, in case of such mustering out, and gave a receipt therefor.

In oar opinion tbe President’s order cannot be collaterally impeached for irregularities of the board, on whose recommendation he acted;, and that if the claimant ever had any right to impeach the action of that board he has waived it by accepting the bounty of the government allowed only to those who were lawfully mustered out under the act of 1870. We so held in the case of Hildeburn v. The United States (13 C. Cls. R., 62). In that case Judge Nott, speaking for the court, in the opinion said:

a We are of the opinion that the voluntary accceptance of this gratuity given by the statute was a conclusive admission of the claimant that he came within its terms. We think that it estops or closes his mouth from now questioning the regularity of the proceedings by which he accquired the gratuity. He virtually came to the defendants and said that he had been dismissed from the service according to the terms of the statute, and was thereby, and for that reason alone, entitled to its benefits. His conduct was tantamount to his resignation. As between ordinary employers and employés the case would not be shadowed by a doubt. The action of a party cannot change the terms of a statute, but it may affect the proceedings thereunder. In this case the voluntary action of the claimant operated as a ratification of the official proceedings and a waiver of the irregularities which form the basis of the suit.”

These grounds being sufficient to determine the case in favor of the defendants we do not pass upon the question, which is •properly raised, as to whether or not the assignment of Captain Meade to the office of captain of artillery in place of the claimant, and the subsequent appointment of Captain Eakin by the President, by and with the advice and consent of the Senate, in place of Captain Meade, resigned, did not operate as a removal of the claimant from his office in the Army independently of all prior proceedings on the principle set forth by the Supreme Court in the case of Blake v. The United States (103 U. S. R., 236).

The judgment of the court is that the claimant’s petition be dismissed.  