
    THOMAS L. HARTIGAN v. THE UNITED STATES.
    [No. 16639.
    Decided March 9, 1903.]
    
      On the Proofs.
    
    The question in the case is whether the President can summarily dismiss a military cadet at West Point without there having been a conviction and sentence by court-martial
    I. The Revised Statutes (§ 1229) provide that no officer in time of peace shall be dismissed from the service except upon and in pursuance of the sentence of a court-martial. A cadet is not an officer within the intent of the statute, and the President, has power to dismiss him summarily.
    II. The Revised Statutes (§ 1342, art. 99) declare that the word “officer” shall he understood to designate commissioned officers, and the word “soldier” noncommissioned officers, musicians, artificers, and privates. A cadet is uncommissioned and is neither an officer nor a soldier, though in the military service.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Thomas L. Hartigan, entered the United States Military Academy as a cadet on the 1st day of July, in the year 1880, having previous to his admission as a cadet as aforesaid, to-wit, on the 30th day of June, 1880, taken the following oath:
    “I, Thomas L. Hartigan,.of the State of Illinois, having-been appointed a cadet in the Military Academy of the United States, do hereby solemnly swear that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto, that I have neither sought nor accepted nor attempted to exercise the functions of any office whatever under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto. And I do further swear that to the best of my knowledge and ability 1 will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.
    (Signed) “Thomas L. Hartigan.
    “Sworn and subscribed to at West Point, New York, this thirtieth day of June, eighteen hundred and eighty, before me.
    [seal.] (Signed) “Wm. Ward,
    
      “Notary jPicbMc.”
    
    II. The claimant, after having passed his first semiannual examination, received the following certificate of appointment:
    
      “To cill whom it may concern:
    
    “ Know ye, That the President has been pleased to appoint Thomas Leonard Hartigan a cadet of the United States Military Academy, to rank as such from the 1st day of July, 1880.
    “Given under my hand and seal at the War Department this tenth day of February, in the year of our Lord one thousand eight hundred and eighty-one, and of the Independence of the United States the one Hundred and fifth.
    “Alex. Kamsey,
    “ Secretary of War.
    
    “K. C. Drum,
    
      “'Adjutant-General.'1'1
    
    And on the 12th of February, 188Í, he entered into the following contract with the defendants:
    “UNITED States Military Academy.
    “I, Thomas Leonard Hartigan, of the State of Illinois, aged nineteen years one month, having been selected for appointment as a cadet in the Military Academy of the United States, do hereby engage, with the consent of my father, in the event of myreceiving such appointment, that I will serve in the Army of the United States for eight years, unless sooner discharged by competent authority. And I, Thomas Leonard Hartigan, do solemnly swear that I will support the Constitution of the United States, and bear true allegiencc to the National Government; that I will maintain and defend the sovereignty of the United States paramount to anj' and all allegiance, sovereignty, or fealty I may owe to any State, county, or country whatsoever; and that 1 will at all times obey the legal orders of my superior officers, and the rules and articles governing the armies of the United States.”
    III. The said claimant served as a cadet as aforesaid from the 1st day of July, 1880, until the 27th of July, 1883, on which day he was. summarily dismissed from the Military Academy^ by order of the President, upon the charges of maltreating a new cadet upon guard, personating an officer of the guard, making an improper use of the countersign, and disobedience of orders.
    IY. After the dismissal, on July 27, 1883, of the claimant, George William Kirkman was appointed a cadet at the United States Military Academy from the Third Congressional district of Illinois on June 15, 1884, to succeed the said claimant, and that the said George William Kirkman was graduated from the Academy and appointed during a recess of the Senate to be second' lieutenant in the First .Regiment of Infantry, United States Army, June 12, 1889; and that he was nominated to the Senate December 16, 1889, for the appointment of second lieutenant, dating from June 12, 1889; that the nomination was confirmed bjr the Senate December 20, 1889, and that he was commissioned by the President, accordingly, January 7, 1890, to rank from June 12, 1889; and that the said George William Kirkman is now a captain in the Twenty-fifth Regiment of Infantry, United States Army-.
    Y. Some time between July 27,1883, the date of claimant’s .dismissal from the United States Military Academy, and March 5, 1888, the date of claimant’s first petition to the President, the said claimant intermarried with some person whose name is not shown by the record.
    VI. The claimant, July 30,1883, addressed a statement and petition to the Adjutant-General of the Army, requesting reinstatement, or a trial by court-martial, and on the 3d day of August following ho addressed a petition to the Secretary of War requesting reinstatement. These statements and requests so made by the claimant asserted his innocence of the charges made against him, but the statements were not verified. April 21, 1888, the claimant, through the Secretary of War and by the hand of Senator Shelby M. Cullom, presented a petition to the President of the United States asking for a revocation of the order of his dismissal, and the issuing of an order for his trial before a court-martial, and an order assigning and appointing him in the Army as of the date of the assignment of the lowest graduate of his class. All these petitions and requests were denied.
    
      YII. The salary of a cadet at the time the claimant was dismissed was §540 a j'ear, which for six years would amount to §3,240. That §4 a month is held back from a cadet under the regulations of the Academy for the benefit of the equipment' fund. That amount for three years would be §144, making the total amount claimed as due to the claimant §3,096, none of which has been paid to him.
    
      Mr. L. T. Mdehener for the claimant. Dudley da Michener were on the brief.
    1. Attorney-General Wirt held, in an opinion dated August 21, 1819, that cadets are subject to trial by court-martial, but are not commissioned officers entitled to sit as members of a court-martial. In 1855 it was held by Attorney-General Cushing (7 Op., 323), following and applying the opinion of Attorney-General Wirt, that cadets are subject to the rules and articles of war, but are not commissioned officers. He holds that the term “noncommissioned” officei's is inapplicable to cadets who are inchoate officers of the Army and are subject by statute and regulation to such discipline as is compatible with that character.
    These opinions fix the status of a cadet at the Military Academy as an officer in the Arnry.
    In Babbitt y. The U-nited States (16 C. Cls. R., 202, 216, 217, 221, and 222) this court considered, in a lengthy and very able opinion by Judge Davis, the relation of such a cadet to the Army and the Government, and it was held that a cadet in the Military Acadenry is an officer — one of that class of inferior officers appointed ly the President without the advice and consent of the Senate. It was also held that, though an inferior officer, the status of such cadet is in no respect that of a noncommissioned officer.
    Thus stood the law when the claimant took his oath of office, in which he was made to swear that he would “well and faithfully discharge the duties of the office.” „
    When the Government presented to the claimant and required him to take that oath, it did more than demand of him a solemn asseveration that he would faithfully perform his duties, but, having in view the statutes, the rulings of the departments and the courts, and the immemorial practice of the War Department, it entered into a contract with the claimant that he was entering upon and would discharge the duties of an office. The claimant became an officer when he took that oath.
    2. It is claimed by the Government that this caséis covered by section 1342, Revised Statutes, and article 99 of the Articles of War.
    It will be noticed that these statutes are parts of chapter 5, Title XIY — The Army. Section 1342 was analyzed in the opinion of the court in Babbitt v. The United States (16 C. Cls. R., 202, 221, 222), and it was held that it did not apply to a cadet. We need say nothing further concerning that statute.
    Article 99 consists of two parts: The first part clearly relates to times of war; the second part as cleaidy relates to-times of peace. As the claimant was dismissed from the service in time of peace, we need only consider that part of the article. It reads as follows:
    “And in time of peace no officer shall be dismissed, except in pursuance of the sentence of a court-martial, or in mitigation thereof.”
    The claimant as an “uncommissioned officer” is within the language of the article. He was not dismissed in pursuance of the sentence of a court-martial, or in mitigation thereof, and therefore this article of war was violated.
    3. Claimant was not dismissed from service in pursuance of the sentence of a court-martial to that effect, or in commutation thereof; therefore the President violated section 1229, Revised Statutes.
    Concerning that section, we submit that it is general in its character, is a part of the chapter dealing with the reorganization of the Army, and fixes broadly and affirmatively the rights of officers. As the claimant was an officer, he is entitled to the protection afforded by the provisions of that section, no matter whether he comes within the purview of article 99 or not. The latter detracts nothing at all from section 1229, which declares affirmatively and positivelj" what the rights of an officer are.
    
      
      Mr. George M. Anderson (with whom was Mr. Assistant Attorney- General Pradt) for the defendants:
    First. The claimant, by his contract with the Government, agreed to his discharge, at any time, by competent authority, and there can be no doubt that the appointing power, the President, in this case, was competent authority.
    Second. The claimant, by his contract with the Government, bound himself to obey the Articles of War. He was not a commissioned officer, under the definition of the word “officer,” contained in section 1342 of the .Revised Statutes, and he was therefore properly dischargeable under the fourth section of the Articles of War.
    Third. After his dismissal by the President another cadet was appointed in his place, who graduated, and was nominated to be second lieutenant in the United States Army, was confirmed by the Senate, and appointed in the Army, and is now a captain in the United States Army.
    Fourth. The President’s authority to discharge inferior officers appointed under article 2, section 2, of the Constitution, if the claimant comes properly under that class of appointments, has been conceded by the legislative construction and the construction of the courts of law.
   Wright, J.,

delivered the opinion of the court:

The claimant, having been appointed by the President, July 11, 1880, a cadet in the Military Academy, served as such until July 21, 1883, when he was summarily dismissed by order of the President, upon charges of maltreating a new cadet while the latter was performing guard duty, personat-ing an officer of the guard, improper use of the countersign, and disobedience to orders. Subsequent to his dismissal a successor was appointed to the place so vacated, who after-wards graduated from the academy, and was later, by and with the advice and consent of the Senate, appointed a second lieutenant in the Army, and this suit is brought to obtain the decree of this court, declaring the order of dismissal null and void, and for a judgment against the United States for $3,417, the pay of a cadet from July 27, 1883, to July 1, 1889.

The question presented for our decision is whether the President may summarily so dismiss a cadet without first obtaining the sentence of a court-martial under the provisions of the statutes, Articles of War, and Army Regulations, by which the military establishment of the United States is governed.

The contention of the claimant is that the provisions of sections 1229 and 1342 of the Revised Statutes are a limitation upon the powers of the President in such cases, wherein it is enacted, in effect, that no officer shall in time of peace be dismissed from service except upon and in pursuance of the sentence of a court-martial. By article 99, section 1342, above referred to, it is declared that the word “officer,” as used by the legislative department, shall be understood to designate commissioned officers; the word “soldier” shall be understood to include noncommissioned officers, musicians, artificers and privates, and other enlisted men, and the convictions mentioned therein shall be understood to be convictions bjr courts-martial.

We are referred to Babbitt v. The United States (16 C. Cls. R., 202) as establishing the status of a cadet to be that of an uncommissioned officer, and from that it is argued that the cadet therefore, being an officer, falls within the prohibition of dismissal without the sentence of a court-martial. The effect, however, of that decision, carried to its logical sequence, would result in the conclusion that a cadet is not an officer within the meaning of the legislation referred to, because he is uncommissioned. The decision in the case of Morton v. United States (19 C. Cls. R., 200) is also referred to, to sustain the insistence that the term of a cadet is to be considered as part of the service in the Army in determining the right of an officer to longevity pay; but there the nature of the duties of a cadet was distinctly differentiated from that of ordinary soldiers. That a cadet is in some kind of service — has duties to perform under orders of superiors — is not to be questioned by anyone who knows anything about the work, physical and mental, that he has to do and the character of military author-itj’ and discipline to which he is subject. No private soldier is more in service than a cadet, though the character of the two services are quite different. The statute (sec. 1322) prescribes the rig'hts and duties of cadets; They shall be arranged into companies according to the directions of the Superintendent, each of which shall be commanded by an officer of the Army, for the purpose of military instruction. To each company shall be added four musicians. The coi’ps shall be taught and trained in all duties of a ¡private soldier, noncom-missioned officer, and officer; shall be encamped at least three months in each jmar, and shall be taught and trained in all duties incident to a regular camp, and (sec. 1323) shall be subject at all times to do duty in such places and. on such service as the President may direct.

It therefore seems plain to us, by reference to the statutory provisions above recited, what the rights and duties of a cadet consist of, and the nature of the same, consisting merely in such as are included in and incident to military instruction, drill, and discipline, and training in such as appertain to the duties of a private soldier, noncommissioned officer, and officer. It is true they are subject at all times to duty in such places and such service as the President may direct, but, following the general rule by which statutes are construed, this general power of the President to assign to duty in such places and services as he may direct would be controlled by the previous specific description of the nature of such duties and services, and such duties would therefore fall in the specific class of those relating to instruction, drill, and discipline. It is not, therefore, believed the President, under that section of the statute, would assume to assign duty to cadets requiring them to participate in actual war, although, by virtue of the powers given by the Constitution to the Commander in Chief, he has repeatedly assigned cadets, both Army and Navy, to active military operations beyond the confines of the academy.

Hence, if our reasoning is sound (and upon this point we feel assured) the rights and duties of a cadet are not the same as those of privates, noncommissioned officers, and officers, but at the same time the cadets are serving in the Army and are part of the regular establishment, and may, we think, be described as candidates merely for commissioned officers, and therefore do not fall within the prohibition of the statute forbidding dismissal in times of peace unless in conformity with the sentence of a court-martial. These appointments are made by the President, without the advice and consent of the Senate, and it seems to us plain that Congress did not intend by any legislation that has been enacted to withhold from him the power of summary dismissal for the good of the Academy, for such a power can wisely be left to his discretion. In truth, when sections .1325 and 1326 of the Revised Statutes are considered together, it would seem that the intention of Congress was to reserve the power of summary dismissal to some one in authority. And who more properly and wisely than the President could administer such authority ? Ity section 1325 it is provided that no cadet who is reported as deficient in either conduct or studies, and recommended to be discharged from the Academy shall, unless upon recommendation of the academic board, be returned or appointed to any place in the Army-before his class shall have left the Academy and received their commissions. It is clear from the record here that claimant was deficient in conduct, for which he was dismissed, and, as we think, in conformity to the law we have recited. By the other section of the statute above numbered the Superintendent of the Academy is given power to convene general courts-martial for the trial of cadets and to execute the sentences of such courts, except sentences of suspension and dis-mission; and the latter exception we think is reserved for the President, who is not limited in his authority by the provision of the section..

Without such power of summary dismissal being vested somewhere in the conduct and management of colleges, and such is the Academy in its nature, we think it within the observation of everyone, the lack of proper discipline and deportment would be the common fault of all, and thereby greatly lessen the value and efficiency of such institutions. We can not believe, therefore, that it was the intention of Congress to withhold from the Executive this most salutary and effective means of enforcing order and discipline, common to all institutions of learning throughout the land.

It follows from the views we have expressed that claimant is not entitled to the relief and judgment that he seeks, and his petition will be dismissed.  