
    LANDON P. JOUETT v. THE UNITED STATES.
    [No. 16604.
    Decided April 10, 1893.]
    
      On the Proofs.
    
    A naval officer is nominated and confirmed, “subjectto the required examination before being commissioned.” The commission is signed hut not issued. He passes the required examination and is recommended for promotion. But the President does not approve the report and suspends action on it and orders the officer to sea. He is again examined and the second hoard reports that he has not the moral qualifications for promotion. The President approves the report and orders that the officer he discharged with one year’s pay.
    I. The nomination and confirmation of a naval officer for promotion, “subject to the required examination before being commissioned,” do not take the case out of the operation of the Revised Statutes, $ 1502, -which makes examinations subject to the approval of the President.
    II. The Revised Statutes §1496 appears to contemplate only the action of a hoard hut must he read with § 1502.
    III. Where a statute positively prohibits the issuing of a commission until a condition precedent he performed, the case differs from Marburg v. Madison (1 Cranch, 137) where only a ministerial act remained to he performed.
    
      IV. Power is given the President "by the Act 5th August, 1892, (22 Stat. L. 284, § 1) to discharge an officer of the Navy “unfit to perform at sea the duties of the place to which it is proposed, to promote him, Try reason of drunkenness or from any cause arising from Ms own misconduct.
    
    
      The Reporters’ statement of tbe ease:
    The following are the facts of this case as found by the court:
    I. October 1,1881, plaintiff was a master in the Navy; a vacancy then occurred in the grade of lieutenant, and by reason of seniority plaintiff became entitled to examination for promotion to this vacancy. He was, however, then absent from the country, being attached to a vessel on the Asiatic station. For this reason he was not then ordered for examination by the President, but the,12th of October, 1881, the President submitted a list of nominations to the Senate, from which the following is an extract:
    #*#####
    “ Master Landon P. Jouett, a resident of Kentucky, to be lieutenant in the Navy from the 1st October, 1881, vice Lieut. B. E. Impey, nominated for promotion.
    “Ensign Lyman Arms, a resident of Michigan, to be a master in the Navy from the 1st October, 1881, vice Master J. P. Jouett, nominated for promotion.
    # ######
    “ Such of the foregoing officers as have not qualified for promotion to be subject to the required examination before being commissioned.”
    The Senate of the United States, October 22, 1881, advised and consented to the appointment of the persons so named “ agreeably to their nominations, respectively.” The same day the President signed a commission appointing plaintiff a lieutenant in the Navy, to take effect October 1,1881, which was given to the Secretary of the Navy, who held it to be delivered to plaintiff upon his passing the examination required by law; the commission has since been retained by the Secretary of the Navy.
    II. When the commission was signed plaintiff was absent on a foreign station, and the examination required by law had to be deferred until his return to the United States. After his return to the United States, January 26, 1886, plaintiff was duly examined, and the finding of the board was as follows:
    
      “We hereby certify that Lieut, (junior grade) Landon P. Jouett, U. S. Navy, has the mental, moral, and professional qualifications to perform efficiently all the duties, both at sea and on shore, of the grade to which he is to be promoted, and recommend him for promotion.”
    This report was laid before the President, who returned it to the Secretary of the Navy “with the following order:
    “Executive Mansion, June 22, 1886.
    “ The record of the naval examining board in the case of Lieut. L. P. Jouett, U. S. Navy, is herewith returned.
    “ After examination of the record I have concluded to suspend final action upon the finding of theboard until an opportunity shall have been afforded Lieut. Jouett to further establish his fitness for promotion, which, considering the evidence of record indicating a tendency on his part to intemperate habits, I regard as open to question. He will therefore be ordered for duty at sea, for such period as the Secretary of the Navy may deem proper, and his conduct while on such service will be reported for my information.
    “ Grover Cleveland.”
    Plaintiff was advised of the action of the President by letter from Secretary of the Navy, dated June 23, 1886, and the President’s order was obeyed.
    III. October 25,1887, the President disapproved the findings and recommendations of the board and directed the plaintiff to be reexamined.
    The following is the order disapproving the findings:
    . “ Executive Mansion, October 25,1887.
    
    “ The finding and recommendation of the examining board are disapproved.
    “ G-rover Cleveland.”
    IV. April 7,1888, plaintiff was notified of the President’s action his case, and was directed to appear before another examining board for examination as to his mental, moral, and professional qualifications for promotion. His examination was concluded August 3,1888, when the board found.that he “has the mental and professional, but has not the moral qualification to perform efficiently all the duties, both at sea and on shore, of the grade to which he is to be promoted, and do not recommend him for promotion. ”
    The proceedings of the board were submitted to the President, who thereafter made the following order:
    
      “Executive Mansion, February 13, 1889.
    
    “The findings of the board in this case are approved and, in conformity with the act making appropriations for the naval service approved August 5, 1882, Lient. (junior grade) Landon P. Jouett, U. S. Navy, will be discharged from the naval service with one year’s pay.
    “ Grover Cleveland.”
    V. From October 1,1881, plaintiff received current monthly pay in the grade of lieutenant (junior grade), to include February 19,1889, and an additional sum of one thousand four hundred dollars. Plaintiff’s name was borne upon the Navy Eegister in the list of lieutenants and marked, “ Subject to examination for promotion,” from January 1,1882, until February 18,1889, when, for the reasons above appearing, he was discharged with one year’s pay. From the time plaintiff’s name was entered on the register as aforesaid until discharged, he was included in the number of lieutenants allowed by law. Lyman Arms (ensign) was commissioned master October 22, 1881 (to take effect October 1,1881), vice,L. P.-Jouett, promoted. His nomination and confirmation were in same form as plaintiff’s. Arms’ commssion was withheld, and he was borne upon the list of masters as “subject to examination” from January 1 to March 31,1882, when his resignation as ensign was accepted. From October 1, 1881, to March 31,1882, the number of officers in the grade of master, including Arms and excluding Jouett, was equal to the entire number allowed by law.
    
      Mr. W. J. Moberly and Mr. Phil. B. Thompson, Jr., for the claimant.
    The record shows that when nominated, confirmed, and commissioned, claimant was absent on a foreign station and could not at the time be examined; that after his return to the United States, he was ordered to report for the required examination January 25,1886, in Washington, and that the finding of the board was:
    “We hereby certify that Lieut, (junior grade) Landon P. Jouett has the mental, moral, and physical qualifications to perform efficiently all the duties, both at sea and on shore, of the grade to which he is to be promoted, and recommend him for promotion.”
    
      This we contend fulfilled every contingency attached to Ms appointment by President Arthur, and fully invested him with all rights and authority pertaining thereto, including the right of salary in tMs grade from October 1,1881, the date from which he was to take rank under President Arthur’s commission, whether that commission was delivered to him or wrongfully withheld.
    “ The commission is not necessary to an appointment, but is conclusive evidence of it.” Marbury v. Madison (1 Cranch, 137).
    “ When a person has been nominated to an office by the President, confirmed by the Senate, and his commission signed and the seal affixed thereto, the appointment is complete.” TJ. 8. v. Le Baron (19 How., 73).
    Suppose under the letter of the law there should be held to exist some doubt on the point submitted, some doubt as to his status under his nomination and confirmation, and his commission thereunder issued by President Arthur, what then obtains?
    The record discloses the fact that at the time Mr. Jouett’s name was entered (under his nomination and confirmation, and the commission thereunder issued by President Arthur) in the Navy Register in the list of lieutenants, the number allowed by law on the active list was 280, and Mr. Jouett was then, and at all times thereafter until discharged from service, included in the number allowed by law in said grade*.” It discloses the further fact that Ensign Lyman Arms was nominated by the President for promotion vice Jouett promoted ; that the nomination was confirmed by the Senate, and that Arms’ name took the place on the Navy Register under said nomination and confirmation in the list of lieutenants (junior grade) to fill the vacancy caused by the transfer of Jouett’s name to tbe list of lieutenants, senior grade, under his promotion; and that after this transfer “ the list of masters (lieutenants, junior grade) including Arms’ name, and exclusive of Jouett’s, was equal to the full number allowed by law.” Did not this nomination and confirmation of Arms vice Jouett, promoted, fully and completely remove Jouett from the Navy as a lieutenant, junior grade: and if thereafter he was nota lieutenant of the senior grade, what was he? (Keyes v. United States, 109 U. S. R., 336; Blalce v. United States, 103 TJ. S. R., 227.)
    
      The various appropriations for the support of the Navy from 1881 down will throw some light on the subject. These (U. S. S., v. 21, p. 331; v. 22, pp. 285 and 472; v. 23, pp. 287, 426, &c., and record, claimant’s evidence, pp. 2, 3, 5) disclose the fact that subsequent to October 1,1881, date of his promotion, Congress regularly appropriated for claimant’s salary in the grade of lieutenant, senior grade, and in no other grade. Does not this then determine the grade in which he should have been paid, if otherwise there existed any doubt? The Supreme Court has said on this point: “While no act of Congress expressly authorizes the Secretary of the Interior or other officer of the Land Department to appoint timber agents,’ the appropriation by Congress of money to pay them is recognition of the validity of their appointment. ” (Wells v. Nielóles, 104 U. S. R., 444.)
    In October, 1881,- claimant had been nominated and confirmed to be a lieutenant, junior grade, subject to examination for establishing his fitness for the position to the satisfaction of a board “to be appointed by the President,” before being commissioned. His commission was made out in due form by President Arthur and placed in the hands of the Secretary of the Navy.
    At the same time he was removed from office as lieutenant, junior grade, by the nomination and confirmation of Ensign Lyman Arms in his stead as lieutenant, junior grade.
    He was examined as the law required, as his nomination and confirmation required, and the finding of the board was as required by law, that he possessed “the mental, moral, and professional qualifications to perform efficiently all the duties, both at sea and on shore, of the grade to which he is to be promoted.”
    This we insist fulfilled all conditions antecedent to his being fully invested with all his rights of office as a duly appointed, confirmed, and commissioned lieutenant, senior grade, and in no power«did there exist any lawful authority for longer withholding from him the commission, as such, from President Arthur.
    But Mr. Cleveland, acting on a violent presumption — that the appointment was yet to be made — was his appointment, not President Arthur’s, and, as such, as we have seen from authorities cited, a fully consummated act — took a departure never before beard of in tbe Navy, and one that for tbe discipline of tbe service bad best be relegated forever by tbe decision of tbis court to tbe paradise of “innocuous desuetude.” He assumes tbe right to pass judgment on tbe rectitude of tbe judgment of tbe examining board approving President Arthur’s appointment of claimant; or ratber to ignore it, without calling in question its righteousness; and, as though tbe right of appointment existed in him, to direct that claimant “be ordered for duty at sea for such time as tbe Secretary of tbe Navy may deem proper,” etc., for claimant “ to further establish his fitness for promotion.”
    Tbis order was made in June, 1886, nearly five years after claimant bad been duly appointed by Mr. Cleveland’s predecessor, and we submit it was of an abnormal character, and unwarranted by law.
    Was any such action upon tbe part of tbe President ever contemplated by the law-making powers in tbe event even where tbe right of appointment vested in him, and bad not as in tbis case, been fully exercised by bis predecessor % Wé submit not. Tbe section of tbe Revised Statutes providing for tbe review by tbe President of tbe proceedings of examining boards, considered alone, might leave some doubt; but an examination of tbe present act (U. S. Stat., Vol. 13, p. 53, secs. 1-3; also seo. 1499, §§ 1, 2, U. S. Eev. Stat.) will show that tbe only approval, or disapproval, ever contemplated, was where tbe finding and recommendation of the board was against tbe officer’s promotion, and tbe review by tbe President was intended as a safeguard against tbe malice, spite, or prejudice of bis inquisitors. Had tbis been Mr. Cleveland’s appointment, and not one already made by President Arthur, a grave question might arise on tbis point — whether denying him tbe right to disapprove tbe examining board’s recommendation would not be an unwarranted encroachment on bis constitutional prerogative of appointment; but this does not enter.in tbis case; if at all, it enters in claimant’s favor. There was in 1881 an appointment in tbe Navy in tbe grade of lieutenant, senior grade, subject to tbe will of tbe Executive and tbe Senate. President Arthur and tbe Senate, by their joint act, filled this vacancy by tbe nomination and confirmation of claimant, and when a duly appointed examining board afterward found him qualified, as required by section 1496, Revised Statutes, all conditions were fulfilled, and claimant’s title to the office was complete.
    To what would a contrary view not lead? Here is an officer duly invested with an office for five years by nomination, confirmation, and commission, and duly recognized in his office by Congress in its annual appropriations, who is placed at the mercy or the caprice of the Secretary of the Navy by order of the President, “for such period as the Secretary of the Navy may deem proper.” If it be warranted for- one year, then it is authorized for twenty. If it be warranted after one examination and favorable report, then it is equally authorized after a dozen, so that claimant may have been buffeted about in the grade of a lieutenant, junior grade, until he had attained the age for retirement by operation of law. Is not, then, Mr. Cleveland’s interpretation of the law in this case as evidenced by his acts wholly repugnant to common sense? If not so, consider it from another standpoint. Suppose under the orders of the Navy Department, June 23,1886 (Record, p. 10), claimant while in the performance of some specially heroic service had sustained some injury that would totally unfit him for the discharge of his duties, loss of both eyes or both legs, if not already a lieutenant, senior grade, could he in law have been retired from active service in said gradé; and if not in said grade, how could he have been placed legally on the retired list at all? (Revised Statutes, sec. 1493.)
    He could not have been retired as a lieutenant, junior grade, because he had been removed by Arm’s pr&motion from said grade five years before; and even though he could have been, can the court sanction such an interpretation of the laws regulating promotions in the Navy as would tolerate so great an iniquity? How then can the court in the face of the record hold that Mr. Cleveland’s order of February 13,1889, directing the discharge from the Navy of Lieutenant (junior grade) Landon P. Jouett was not irregular and unwarranted by law?
    Should anything be lacking to show the force and effect of claimant’s nomination and confirmation in the grade of lieutenant October, 1881, “subject to the examination required by law,” we have it in the reply of the Navy Department certified but not printed. From this it appears that Ensign Lyman Arms, nominated and confirmed vice Jouett, iiromoted, and wbo prior to examination resigned April 1,1882. President Arthur nominated Ensign Frank Fletcher to the vacancy thus created, and he was duly confirmed and commissioned.
    President Arthur in his letter to the Senate, nominating Fletcher, says: “ Such of the foregoing as have not been examined for promotion as required by law, to be subject to such examination, and to be reported qualified before receiving their commissions.” Could a plainer interpretation of his nomination be given by the President; can language so plain be tortured into giving the nominator’s successor the right five years after the nomination has been confirmed to ignore the favorable report of the examining board, the only thing necessary in law to perfect the nominee’s title to his office, and, to send him out as a mere candidate for appointment on an indefinite probation to establish his fitness for appointment to an office in which he has already been fully invested?
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
   Davis, J.}

delivered the opinion of the court:

While absent upon the Asiatic station, serving as a master in the Navy, plaintiff was nominated, confirmed, and commissioned as a lieutenant in the Navy. The nomination and confirmation were made “ subject to the required examination before being commissioned.” The commission, therefore, was not issued, but was retained by the Secretary of the ,Navy, and has never been delivered. In 1886 the plaintiff was duly examined, and reported qualified to perform the duties of the grade “to which he is to be promoted,” and the board recommended him for promotion. The President did not approve this finding, but suspended final action until an opportunity should have been afforded plaintiff to further establish his fitness for promotion; to that end the President ordered him to duty at sea for such a period as the Secretary of the Navy might deem proper, his conduct’ on such service to be reported for the President’s information.

This order- was' obeyed and in due course plaintiff was again examined, when the board found that he had not the moral qualifications for promotion. This finding the President approved, and directed that plaintiff be discharged from the naval service with one year’s pay (act August 5,1882). It is now contended for plaintiff in substance that this action by the President was illegal; that his commission had been signed; his nomination and confirmation were subject to one condition, namely, “ examination before being commissioned,” and this condition had been fulfilled; therefore the President was without discretion in the matter.

The contention is founded primarily upon section 1496, Revised Statutes, which provides that certain naval officers shall be promoted until their mental, moral, and professional fitness to perform, all their duties at sea shall have been “ established to the satisfaction of a board of examining officers, to be appointed by the President.” As plaintiff’s qualifications were favorably reported by the board, it is urged that every condition precedent to his promotion had been fulfilled, and the President had no further power. The substantial point presented is, whether the action of the first board was conclusive upon the President, and section 1502 decides this adversely to plaintiff when it provides that—

“1502. Any matter on the files and records of the Navy Department touching each case, which may in the opinion of the board be necessary to assist them in making up their judgment, shall, together with the whole record and findings, be presented to the President for his approval or disapdroval of the finding.”

The President’s approval or disapproval of the findings is, then, distinctly required, and it is contemplated that he shall examine the whole records and. findings.' Having the duty imposed upon him to approve or disapprove, the President had the power to suspend action or to seek further information; these are necessary incidents of the executive reviewing power. (Swaim v. The U. S., ante.)

Section 1496 appears to contemplate only the action of a board, but that section must be read with the others relating to the same subject-matter; one of these is 1502, which demands that, to become operative, the board’s decision shall be acted upon by the President.

The case of Marbury v. Madison (1 Cranch, 137) does not apply to the cause at bar, for there merely a ministerial act remained to be performed, whereas here the statute positively prohibited the issue of a commission until a condition precedent had been performed, a condition which was not performed.

Whether the President under the circumstances had the power to sign a commission, we do not decide; at the most the President could not do more than the nomination, confirmation, and statute allowed. The plaintiff was nomina ted subj eet to a condition, he was confirmed subject to a condition; the statute says he shall not be promoted unless a condition has been fulfilled. The President was without power to invest this plaintiff with the higher office until the board had made its findings and these findings had been approved.

The condition antecedent to promotion was placed upon the appointing power as well as upon the plaintiff, and as it had not been fulfilled, the plaintiff could not be promoted. Under these circumstances- the doctrine stated in the case of Le Baron (19 How., 73) does not apply. While a commission was, in fact, signed (and not delivered) the Executive was without power to promote plaintiff at the date of its signature, and, if issued, it could not be held to take effect until after the action prescribed by sections 1496 and 1502 should have been taken in a manner favorable to plaintiff. After such action, then, under section 1562, so far as pay is concerned, the promotion would relate back to the date when “he would have been entitled to it had he been examined and found qualified at the time so required by law or regulation.”

Further power is given to the President to pursue the course taken herein by the Act of August 5, 1882 (Supp. Rev. Stat., vol. 1, p. 377), which provides—

“That whenever, on an inquiry had pursuant to law concerning the fitness of an officer of the Navy for promotion, it shall appear that such officer is unfit to perform at sea the duties of the place to which it is proposed to promote him, by reason of drunkenness, or from any cause arising from his own misconduct, and having been informed of and heard upon the charges against him, he shall not be placed on the retired list of the Navy, and if the finding of the board be approved by the President, he shall be discharged with not more than one year’s pay.”

It is suggested that there is force in the fact that plaintiff was borne on the NavyBegister as a lieutenant; any argument based upon this fact is negatived by the further fact that he was always thereon marked as “ subject to examination.” Nor does this ease fall within the principle of the Blake Case (103 U. S. R., 227) or Hekey Case (109 U. S. R., 336); while it is true that Arms was upon the same day and under the same condition nominated and confirmed and a commission was signed purporting to promote him, yice Jouett, it is also true that the President was without power to promote plaintiff in October, 1885.

Petition dismissed.  