
    CHARLES P. MILLER v. THE UNITED STATES.
    [No. 14032.
    Decided April 7, 1884.]
    
      On the Facts.
    
    An officer is ordered before a retiring board, which reports him incapacitated by sickness “not incident to the service.” The President .directs that he be “wholly retired,” andhis successor is appointed and confirmed. The officer asks a rehearing; the President grants it. The board finds as before, but the Surgeon-General certifies that the incapacity was caused by exposure incident to the service. The President thereupon revokes his former order and places the officer upon the retired list. He from 1868 to 1884 performs the duties and receives the pay of a retired officer. The defendants now maintain that the action of the President was illegal and seek to recover back the pay received by the officer.
    
      ' I. The Act 3d August," 1861 (12 Slat. L.,, p. -289, § 17), which provides that no officer of the Army “shall 1)? retired either p.artiglly or wholly frojn the service without having had a fair and full hearing,” does not authorize the President to send a casé hack to '& 'retiring hoard; if he has ■ once approved ahd acted upon its report.' ' ' ■ '
    II.When the President approves and acts upon the report of a retiring hoard, he thereby determines that the officer has had “a full and . fair hearing.” ■ , .
    III. Upon the order of the President approving a report and “wholly retiring” an officer there is in law and in fact a vacancy, the legal status of the officer becoming that of a private citizen.
    IV. The nomination and confirmation of an officer as the successor of one “wholly retired” operate in law to supersede the retired officer, who thereby ceases to have any connection with the Army.
    ■ V. To he “idholly retwed” under the provision of the Act 3d August, 1861 (12 Stat. L., p. 289), is to be put out of the Army and out of office.
    VI.Where an officer was illegally placed on the retired list by the President, he cannot recover the pay of the office.
    VII.Where an officer illegally placed on the retired list by the President has been subject to the disqualifications of the position, he must be regarded as an officer de facto.
    
    VIII.An officer defacto, holding the office in good faith and not as a usurper, cannot he required to payback salary received for-services rendered.
    IX,Wkere one claiming to be an officer- rendered no service and, held no official relation with the government, money paid him fp;r salary may be recovered hack.
    
      The Reporters’ statement of the case:
    This case was transmitted to this court by the Secretary of the Treasury under the provision of the Bevised Statutes, § 1063. The following are the facts as found by the court:
    I! Octpber 20,1861, claimant was duly appointed a second lieutenant in the Army, and was on the 18th of November, 1861, promoted to the rank of first lieutenant in- the Army, to také effect from the 20'th of October, 1861.
    ill. By a.special order dated September 21,1867, a board'to retire disabled Army officers was directed to convene at New York on the 27th-of September,:or as soon after;as practicable! The board convened October 2,1867, and among other officers directed to appear before'said board was the claimant, (Charles P. Miller, who did so appear,, and was éxámj^sL. by. t!hp said board. The board thereupon made the following statement of the result of said examination:
    “ The boárd was then closed, and, after mature deliberation on the evidence adduced,' finds First Lieut. O. P. Miller, Seventh Infantry, as follows, viz:
    “ The board is of the opinion that First Lieut. Ohas. P. Miller is incapacitated for active service, and that the said incapacity resulted from sickness, which sickness was not incident to the service.
    “P. St. Geo. Cooke,
    
      “Brig. Gen’l, U. S. A., B. M. Gen’l, Pres’t Board.
    
    
      “ J. P. Sanger,
    
      u 1st Lt. and Adjt. 1st Art’y,
    
    
      “Bvt. Oapt., U. S. Army, Recorder.
    
    III. On the report of the board the following order was made:
    [Special Orders No. 467. — Extract.]
    “Headquarters oe the Army,
    “Adjutant-General’s Oeeioe,
    “ Washington, October 12th, 1867.
    “ 3. A board of examination having found 1st Lieutenant Charles P. Miller, 7th U. S. Infantry, “ incapacitated for active service, and that the said incapacity resulted from sickness, which sickness was not incident to the service,” the President directs that, in accordance with section 17 of the act of Congress approved August 3rd, 1861, he be wholly retired from the service, with one year’s pay and allowances, and that his name be henceforward omitted from the Army Eegister.
    “ By command of General Grant:
    “E. I). Townsend,
    
      “Assistant Adjutant-General.”
    
    IV. On November 6, 1867, the following appointment was made:
    “ War Department, November 6, 1867.
    “ Sir :, You are hereby informed that the President of the United States has promoted you to the rank of first lieutenant in the Seventh Eegiment of Infantry in the service of the United States, to take effect from the twelfth day of October, •one thousand eight and sixty-seven, vice Miller, wholly retired. Should the Senate, at their next session, advise and consent thereto, you will be commissioned accordingly.
    “ U. S. Grant,
    “ Secretary of War ad interim.
    
    “First Lieutenant Joel H. Lyman,
    
      “1th Regiment, U. S. Infantry, Gainesville, Fla.
    
    
      “Washington, December 3,1867.
    “ To the Senate of the United States :
    
    “ I nominate the officers named in the accompanying communication for promotion in the Army of the United States, as. proposed by the Secretary of War ad interim.
    “Andrew Johnson.
    “War Department,
    “ Washington. December 3, 1867.
    “ To the President of the United States:
    
    
      “ Sir : I have the honor to propose for your approbation the following named officers, for regular promotion in the Army of . the. United States:
    “ Second Lieutenant Joel H. Lyman to be first lieutenant, October 12,1867, vice Miller, wholly retired.
    “ I am, sir, with great respect, your obedient servant,
    “U. S. Grant,
    “ Secretary of War ad interim.
    
    “In Executive Session,
    “Senate of the United States,
    “ February léth, 1868.
    “Resolved* That the Senate advise and consent to the appointment of the following named persons in the Army of the United States, agreeably to their nominations, respectively, viz:
    “ Second Lieutenant Joel H. Lyman to be first lieutenant, October 12, 1865, vice Miller, wholly retired.
    “J. W. Forney,
    “ Secretary.
    
    “By W. J. McDonald,
    “ Chief Clerk.
    
    “ The President of the United States of America to all who shall see these ‘presents, greeting:
    
    “ Know ye that, reposing special trust and confidence in the patriotism, valor, fidelity, and abilities of Joel H. Lyman, I have nominated and, by and with the advice and consent of the Senate, do appoint him first lieutenant in the Seventh Begiment of Infantry in the service of the Unitéd States, to rank as such from the twelfth day of October, eighteen hundred and sixty-seven. He is therefore carefully and diligently to discharge the duty of first lieutenant by doing and performing all manner of things thereunto belonging. And I do strictly charge and require all officers and soldiers under his command to be obedient to his orders as first lieutenant. And he is to observe and follow such orders and directions, from time to time, as he shall receive from me, or the future President of the United States of America, or the General, or other superior officers set over him, according to the rules and discipline of war. This commission to continue- in force during the pleasure of the. President of the United .States for the time being,
    
      “ Given under my hand, at the city of Washington, this seventeenth day of June, in the year of our Lord one thousand eight hundred and sixty-eight, and in the ninety-second year of the Independence of the United States.
    
      “ Andrew Johnson.
    
      “ By the President:
    “J. M. SOHOEIELD,
    
      “ Secretary of War.”
    
    Y. Claimant appeared before a second board under following circumstances:
    October 24, 1867, the claimant complained to the Adjutant-General’s Office of the action taken in his case, and asked for a rehearing.
    July 15, 1868, in response thereto, authority was given to Lieutenant Miller to appear again before the retiring board.
    Lieutenant Miller having again appeared before the retiring board, that board, after considering the additional evidence adduced, reached the following conclusion on the 8th of September, 1868:
    
      “ There being no further evidence, the board, after mature deliberation, finds that Mr. C. P. Miller, late 1st lieutenant, 7th U. S. Inf’t’y, is incapacitated for active service, and that the incapacity is not incident to the service
    “ P. St. Geo. Cooke,
    
      uJBvt. Maj. Geii’l andBrig’d’r Gen’l, TI. S. A., President.
    
    
      u Edw’d E. Parry,
    
      uBvt. Maj., U. S. A., Oapt., 20th InfWy, Recorder.”
    “Eespectfully returned. The statements of Lieut. O. P. Miller, as confirmed by the evidence adduced leaves no doubt on my mind that the ‘ disease of the heart,’ from which he suffers, is- a direct consequence of the attack of acute rheumatism, attributable to exposure to severe cold and sudden transition from a southern to an extreme northern winter climate. There is no doubt concerning his disability, and its character and ex-ent, and there appears to be none as to its origin that should ót in equity be waived in favor of his previous service in . ■ e field.
    J'K. Barnes,
    “ Surgeon-General.
    
    "“S. G. OUEICE, Sept. 22, 1868.”
    
      “Adjt. Gen’l’-s Oeeice,
    
      “Sept. 25,1868.
    “ Respectfully returned to tbe Secretary of War, with report of the Surgeon-General indorsed hereon, and previous papers in the case.
    “E. D. Townsend,
    
      “Asst. Adjt. General.”
    
      . ‘{War Dept., Sept. 28,1868.
    “Par. 3, Spl. Order, No. 467, A. G. O., Oct. 12th, ’67, retiring Lieut. Miller with one year’s pay. and allowances, will be revoked, and Lt. Miller will be placed upon the retired list, with the rank of 1st lieut., as provided for by sec. 16 of the act of Congress approved August 3d, 1861.-
    
      “ J. M. SCHOEIELD,
    “ Sedy War.”
    
    “Headquarters oe the Army,
    “Adjutant General’s Oeeice,
    “ Washington, September 29th, 1868.
    “10. By direction of the President, paragraph 3 of Special Orders No. 467, October 12,1867, from this office, retiring 1st Lieutenant Charles P. Miller, 7 th U. S. Infantry, with one year’s pay and allowances, is hereby revoked, and his name will be placed upon the list of retired officers of that class in which the disability results from long and faithful service or some injury incident thereto, in accordance with section 16 of the act approved August 3d, 1861.
    By command of General Grant:
    “E. D. Townsend,
    
      “Assistant Adjutant-General.”
    
    VI. Since the issue of the said orders claimant has been borne upon the pay-rolls of the Army as a first lieutenant on the retired list, and prior to January 1,1884, has drawn pay to the amount of $17,376.47, over and above the amount of “ one year’s pay and allowances ” provided for by the act of August 3,1861, for officers wholly retired.
    During the time since his restoration the claimant has regularly reported as required of retired officers by tbe regulations of the War Department, and has otherwise subjected himself to all the requirements of law and regulations in relation to such officers. The claimant never accepted the one year’s pay and allowance authorized to be paid to officers wholly retired from the service.
    VII. Of the amount thus received by claimant $1,000 of it was for the time from the 12th day of October, 1867, to the 28th of September, 1868.
    
      
      Mr. Charles P. Miller, the claimant, in pro per.:
    
    When the President has retired an officer wholly on the finding of a retiring board, he has full power under the act of Congress approved August 3d, 1861 (U. S. Eev. Stat., 1873-1874, secs. 1243-1260), on being satisfied that the finding of the retiring board and his action thereon have proceeded on a clear mistake of fact and an entire misapprehension of the necessities of the case by the officer and the board, to grant such officer a rehearing, and on the proceedings thereon to review and revoke his former action, and retire the officer from active service.
    In Capt. Corson’s Case (17 O. Cl., 344) this court went far towards holding that in certain cases an order dismissing an officer made by one President might be revoked by another, and the officer reinstated on the active list. • A fortiori the revocation is proper in this case where it was made by the same President, contemplated no interference with the active list or with any vested rights •, and conflicts in no way with the constitutional provision which controlled in the cases of Mimmack (97 U. S. E. 437), McBlrath (102 id., 426), and Blalce (103 • id., 227).
    The Senate has nothing.to do with placing officers on the retired list. That power is in the President alone, and not arbitrarily in him, but conferred by the statute and to be exercised only in accordance therewith. Being placed on the retired list is in no sense an appointment.
    It is contended, even if the President, in some circumstances could grant such a rehearing as was granted the plaintiff, he could not do so here, because the claimant was entirely removed from the Army by the promotion of Lyman to his position. What position ? Why, his position on the active list. How was Lyman’s right to that position affected by the President’s action in the case at bar 7 Suppose the President had, after the first hearing, acted as he did finally, and put claimant on the retired list, Lyman’s promotion would not have been interfered with, nor his right to retirement if circumstances should demand that. The vacancy in the position of 1st lieutenant on the active list would still have remained, and could be filled only with the advice and consent of the Senate. (Collins’s Case, 14 C. Ols. E., 570.)
    
      Under the decisions of this court no question of constitutionality enters into this case. (Collins’s Case, 14 Ct. of 01., 570; Wood’s Case, 15 Ot. 01., 151, affirmed 18 Ot. 01., 761. And see Moore’s Case, 95 U. -S. B., 760; United States v. Germaine, 99 U. S. B., 503.)
    Though the court should find that the President, in the exercise of his bare executive authority, had no power to take such action (as in cases where he revokes the order by his mere fiat, without any new evidence, or mistake, or rehearing), yet, if under the statute governing retirements, the court finds that the President has an implied or express power to review his action in the manner followed in the claimant’s case, then there is no constitutional objection to the exercise of that power.
    The President had unquestioned power to put the claimant on the retired list after the first hearing. In reviewing his own action and retiring claimant from active service, he did what he was originally fully authorized to do alone, without any concurrence by the Senate, and what it is to be presumed he would have done originally had all the facts been known to him when he first took action in the matter after the first hearing. In granting the rehearing, he simply afforded to plaintiff the “full and fair” hearing to which, under the statute, he was entitled, and without which he was not legally retired.
    The decision in Mimmack’s Case does not declare any new doctrine.
    The same construction had been put upon the powers of the President in similar cases by the Department of Justice from an early period in the history of the government. (See the opinion of Hon. Wm. M. Evarts in Mimmack’s Case and cases cited, 12 Opin., 555.)
    Notwithstanding this, different Attorney-Generals have held that, in exceptional cases, circumstances may give the President the right to review a previous decision.. Attention is especially called to the ease of the Passed Midshipman (Opinion of J. J. Crittenden, Sept. 19, 1850, 5 Opin., 259).
    In this opinion Mr. Crittenden disclaimed any intention to make a precedent, and confined his opinion to that special case.
    The opinion is referred to by Mr, Cushing in the case of Lieutenant Devlin (6 Opin., 369), and is not at all impeached; but is impliedly held warranted by the facts.
    
      Mr. Crittenden based Ms opinion largely on the fact that by reinstating the midshipmen no vested or acquired rights were prejudiced. It is exactly so in the case at bar. Had the claimant been restored to the active list such rights would have been interfered with; but his retirement from active service defeated no acquired rights to promotion.
    No Attorney-General laid down the rule adopted in Mim-mack’s Case with greater strictness than Caleb Cushing. (See case of Lieutenant Devlin, supra; Howe’s Case, 6 Opin., 514.)
    Bnt even he found in the circumstances of particular cases authority for the President to review an executed decision. (See case of “A Certain Besignation,” 6, Opin., 456.)
    Another instance of the exercise of such a power by the President is found in the case of Lieutenant Drane (3 Opin., 641).
    
      Mr. George L. Douglass (with whom was the Assistant Attorney - General) for the defendants:'
    It is clear that, upon the issuing of the President’s order wholly retiring him October 12, 1867, the claimant became a private citizen. But if there be any doubt upon this point, there can be no question whatever that he ceased to be an officer after the nomination, confirmation, and appointment of another person in his place. Such being the case, it was thereafter no longer in the power of the President or any executive officer to “ restore ” him to the Army. A restoration under such circumstances involves a new appointment, which, under Article II, section 2, of the Constitution, can only be made by and with the advice and consent of the Senate. This condition was never complied with in the case of Mr. Miller, and therefore, from the day of his retirement from the service to the present time, he has not been in the Army. He has been and he is now, in fact and inlaw, a private citizen. (Mimmaeh’s Case, 97 U. S., 437 j MeElrath’s Case, 102 U. S., 437; BlaJce’s Case, 103 U. S., 237; Keyes’s Case, 109 U. S. B., 336.)
    The fact that, by the order of September 29, 1868, it was sought to place the claimant on the retired list rather adds to than diminishes the difficulty of his case. For, under the laws regulating the military service, only an officer already upon the active list can be retired; and the Constitution requires the assent of the Senate before a citizen can become an officer. If, therefore, on the 29th of September, 1868, Mr. Millér was a private citizen, both the Constitution and the laws would have been infringed by putting him on the retired list by Executive order alone. The order intended to accomplish this result was therefore a legal nullity, and could confer no legal rights.
   Weldon, J.,

delivered the opinion of the court:

The controversy in this case involves the question whether the President, after directing that an officer of the Army u be wholly retired from the service with one year’s pay and allowance,” upon the report of a retiring board, that the officer is incapacitated for active service, and that the incapacity resulted from sickness not incident to the service; and after the appointment of his successor, by and with the advice and consent of the Senate, can order a rehearing, and upon a similar report change the legal status of the person and place his name on the list of retired officers. ■

It is insisted by the claimant that such a power is inherent in the President;' and upon that theory of the law he brings this suit, for a balance due him as longevity pay of $2,800.

On the other side it is contended that such an exercise of authority is unlawful; that all the money paid to the officer, as of the “ retired pay list,” is illegal, and the defendants have filed a counter-claim demanding the sum of $17,367.47. There is no controversy as to the facts, which may be stated briefly as follows:

On October 20,1864, the petitioner, was appointed second lieutenant in the Army; and on the 18th of November, 1864, was promoted to the rank of first lieutenant, to take effect from the 20th of October preceding. Séptember 21, 1867, a retiring board was ordered to convene, before which, on October 2, 1867, claimant appeared, the board on the same day reported him incapacitated for active duty, and that such incapacity was not from causes incident to the service.

October 12,1867, the President approved the finding of the board, directed that the claimant “ be wholly retired from the service with one year’s pay and alloawnce, and that his name be henceforward omitted from the Army Register.”

November 12, the President promoted Joel H. Lyman to the rank of first lieutenant, to take effect from October 12, in the place of claimant, wholly retired; on the 14th of February, 1868, the Senate confirmed the nomination of Lyman, and on 7th of June following he was commissioned to date from the 12th of October, 1867.

The claimant being dissatisfied with the finding of the board and the action of the President thereon, was ordered to appear again before the board, which he did, with the same result.

Upon the second finding the Surgeon-General certified in substance (notwithstanding the result of both examinations) that the claimant’s sickness was incident to the service; thereupon the President, on the 28th of September, 1868, revoked the order of October, 1867, and directed that his name “ be placed upon the list of retired officers.”

The theory of the claimant is, that the President, notwithstanding his approval of the first finding, had authority to supervise his action in the premises, in order that there might be secured to officers the benefit of a “ fair and full hearing,” as provided in section 17 of the Act of August 3, 1861, 12 Stat. L., 289.

The proviso to said section reads as follows :

“Provided always, That the members of the board shall in every case be sworn to an honest and impartial discharge of their duties, and that no officer of the Army shall be retired either partially or wholly from the servic'e without having had a fair and full hearing before the board, if, upon due summons, he shall demand it.”

This proviso simply makes clear by direct statement, what is implied in the other section of the statute providing for, and regulating an examing board; it being the purpose and policy of the law, to secure to the officer u a fair and full hearing ” before his relations to the Army can be disturbed, or dissolved.

But does it give to the President jurisdiction of, and control of the record, of a case, when he has acted on the report of the board by directing and ordering that the officer by wholly retired from the service, and after the nomination and confirmation of his successor?

Did he not, when he examined the first report, determine that the officer had received “a fair and full hearing” ?

The President must have done so, for the reason that such determination must he assumed, as the basis of his order retiring the claimant “ wholly from the service.”

Upon the first order of the President there was in law and fact a vacancy in the office of first lieutenant, and the legal status of the claimant was that of a private citizen, wholly disconnected from the military service.

While this condition of things existed both in law and in fact, on the 12th day of November, 1867, the President, in confirmation of his approval of the report of the board, made on the ,12th of October, nominated Joel H. Lyman as first lieutenant in place of claimant, wholly retired; ” and this nomination was confirmed by the Senate months before a rehearing was ordered on behalf of claimant. .

Before we determine that the President has control of the case, after his order retiring the officer, and the nomination and appointment of his successor, we must inquire into the possible legal effect of such a construction of executive power; and if it leads to the exercise of unwarranted authority we must reject it, unless controlled to the contrary by force of positive enactment.

There is no law in words defining the jurisdiction of the President in a case like the one at bar. If he had the right to order a rehearing under all the circumstances of this case, he had the right to disregard the findings of the second board, and continue the official existence of the claimant as first lieutenant, notwithstanding he had nominated his successor and commissioned him on the confirmation of the Senate before the second board was called into existence.

It is not a suffiaient answer to say, in this case, the claimant was restored to the retired list while his successor was in the active field of duty; and between them there was in fact no antagonism of position.

Courts must deal with principles, and endeavor by their application to establish a system of legal philosophy.

If in our construction of executive authority we should concede the power to revoke the order retiring the officer wholly from the Army, we must by the application of the plain provisions of the statute, find that the President had the right to disregard the second report of the retiring board, and continue the officer in his original relations, the effect of which would be the anomalous condition of two officers occupying the same position at the same time, a result as impossible in law as it is in fact.

The line of executive and judicial authority upon the question presented by this record is by no means uniform and unbroken.

In the earlier decisions of this court, cited by claimant, there may be a seeming sanction of the theory sought to be maintained by him in this case; but in the case of Montgomery (5 C. Cls. R., 98), the court qualified and circumscribed the general doctrine enunciated by the court in the earlier decisions of Smith (2 C. Cls. R.), and Winter (3 C. Cls. R.). The court said in the Montgomery case, in referring to the Smith and Winter cases:

There have been two decisions of this court, rendered upon similar orders of revocation by the President, which appear to have caused much trouble and some alarm in the Treasury and War Departments, and which have been carried in contemplation there much further than the facts of the case will either warrant or require. In Captain Smith’s case and Captain Winter’s case the officers were — the one assistant quartermaster and the other commissary of subsistence, and both were in the volunteer service. Their offices were not limited by law, and were not considered in any way filled by others. But in the Regular Army the number of quartermasters of the rank of major was established, and consequently limited bylaw, and the number during the claimant’s ouster was full.”

A case very similar to the one under discussion came before this court, and is reported in 17 C. Cls. R., 344, and, as we now hold, overruled in effect the doctrine of the former decisions.

In that case as in this, the President, after dismissing the claimant (who was a quartermaster in the volunteer service), revoked the order of dismissal and restored him to his former position without having nominated any person in his place, he being in a branch of - the Army where by law there is technically no successor.

In that case the claimant- brought suit to recover pay for the time he was dismissed, and the “ three months’ pay proper” allowed by the act of March 3, 1865 j and although for the purpose of an appeal, the court gave judgment for the claimant, the legal right to recover was decided adversely to the petitioner.

The court, by Judge Scofield, said:

u The power of revocation has frequently been recognized by the accounting officers of the government, and in a qualified form by the early decisions of this court.
“ By some recent decisions of this court, affirmed, upon appeal, by the Supreme Court, the power to revoke a dismissal or withdraw an acceptance of a resignation has been very much circumscribed, if not wholly denied (Mimmack's Case, 10 C. Cls. R., 584; 97 U. S. S. R., 437; McElrath's Case, 12 C. Cls. R., 201, affirmed 102 S. R., 426; Blake's Case, 14 C. Cls. R., 462, affirmed 103 U. S. S. R., 227). The purport of the decisions is that the President having once dismissed a military officer or accepted his resignation and given notice thereof, so that nothing remained to be done to make the severance complete, cannot again restore him to any office except by a new appointment in pursuance of a nomination to and confirmation by the Senate.
“ These decisions and the line'of argument on which they are based might authorize us to hold that the claimant, having been completely severed from the Army by the dismissal and notice, could only be restored by a new appointment, and that the revocation so far as designed to place him in statu quo was void.'
“ Whether it might operate as a new appointment is not a question in this case, because for all subsequent service he has already been paid.”

In the case of McElrath, affirmed by the Supreme Court of the United States, Justice Harlan, in discussing the question whether the act of the Secretary of the Navy in dismissing an officer under the statute of July, 1862, was in law the act of the President, laid great stress upon the fact that after such dismissal the President nominated and the Senate confirmed the appointment of the successor of McElrath, thereby ratifying the act of the Secretary of the Navy.

So in this case it may be said that in the nomination of Lyman as the successor of the claimant the President reaffirmed the report of the Board in finding that he was incapacitated for duty, from causes not incident to the service, and also affirmed his own act in wholly retiring the claimant from the Army. It was at least a collateral affirmance of his own act.

The question of Executive control over an act accomplished came before the Supreme Court of the United States in the celebrated case of Marbury v. Madison (1 Cranch), and while the court did not assume the jurisdiction to settle the immediate controversy, Chief-Justice Marshall delivered a very learned and exhaustive opinion on the question of Executive power and the jurisdiction of the Federal judiciary.

The court said:

“ Where the officer is removable at the will of the Executive, the circumstance which completes his appointment is of no concern, because the act is at any time revocable, and the commission may be arrested if still in the office. But when the officer is not removable at the will of the President the appointment is not revocable and cannot be annulled. It has conferred legal rights which cannot be resumed.
“ The discretion of the Executive is to be exercised until the appointment is made.
“ But having once made the appointment his .power over the office is terminated in all cases where by law the officer is not removable by him. The right of the office is then in the person appointed, and he has the absolute unconditional power of accepting or rejecting it.”

And in the case of Blake (103 U. S. R., 237), the court said:

“ It results that the appointment of Gilmore, with the advice and consent of the Senate, to the office held by Blake, operated in law to supersede the latter, who thereby, in virtue of the new appointment, ceased to be an officer in the Army, at least from the date at which the appointment took effect, and this without reference to Blake’s mental capacity to understand what was a resignation. He was consequently not entitled to pay as post-chaplain after July 2,1872, from which date his successor took rank.
“ Having ceased to be an officer in the Army, he could not again become post-chaplain except upon a new appointment by and with the advice and cod sent of the Senate. (Mimmack v. The United States, 97 U. S., 426.)

The Supreme Court, in the Marbury case, said the President had no power to revoke the appointment of an officer not removable at his pleasure$ and, we submit, having no power to remove, in the exercise of Executive authority, he has no power to reinstate by mere revocation without the advice and consent of the Senate, after the complete severance of the individual and the office.

Upon the doctrine of the Blake Case, we must hold that the nomination of Lyman, and his confirmation by the Senate, as the successor of the claimant, operated in law to supersede the claimant; and thereby he ceased to have any official connection with the Army; and this without reference to the authority and power of the President to review and change his order on the report of a retiring board. The Supreme Court, in the construction of the act of July 13, 1866, said—

“There was, as we think, no intention to deny or restrict the the power of the President, by and with the advice and consent of the Senate, to displace them [officers in the military and naval service] by the appointment of others in their places.” (Blake v. United States, 103 U. S., 237.)

The act of the President in the nomination and appointment of Lyman in the place of Miller, “wholly retired,” was a distinct confirmation and recognition of his former act of wholly retiring Miller from the Army of the United States, and operated in law as a ratification of his order made on the 12th day of October, 1867. The immediate effect of a revocation of the dismissal, if valid, would be to put the officer back into the Army on the active list, but that could not be done, inasmuch as his place was then'filled by the incumbency of his successor.

What is it to be wholly retired from the service 1 It is nothing less than t o be put out of the Army and out of office. There is no wholly retired list in the Army from which the transfer can be made. “An officer, on being wholly retired, becomes a civilian and can be readmitted to the service only by a, new appointment; but he cannot be appointed at once to the retired list. A civilian cannot be appointed as a retired officer.' He must first be appointed an officer .on the active list, of a certain rank. None but a commissioned officer on the active list of the Army can be placed on the retired list.” (Digest of the Opinions of Judge-Advocates General, 433.)

As the result of the adjudica) ions.in this and the Supreme Court, we must hold that the claimant in law was not placed on the retired list of the Army, and therefore he is not entitled to recover on his petition. . „

The proper disposition of the counter-claim in the light of the law that the claimant was not restored to the Army, presents a question of some difficulty.

It may be argued, if the claimant has no right to recover on his claim, then it should follow as a legal corollary that the defendants must recover on their counter-claim.

While in law the claimant was not an officer in the Army, as the result of the order of revocation, and cannot recover, because of the want of that relation, he was a de facto officer, and as such was by his own act, and the concurrence of the authority of the government in good faith subject to the disqualifications of a, person on the retired list; was subject to whatever duties áre by law incident to the relation of an officer of that kind; and by the sixth finding subjected himself to all tlie requirements of the law and regulations applicable to “ retired officers.”

It has been repeatedly decided by courts of eminent and respectable authority, that a de facto officer is entitled to fees or compensation, earned by him, while in the discharge of the duties of his office, which he held in good faith, and not merely as a usurper. He also refused the one year’s pay and allowance authorized to be paid to officers wholly retired from the service. He supposed, as did the officer having in charge his payment, that he was in law as well as in fact on the retired pay list of the Army, and both parties proceeded in good faith, to do what they each supposed to be required of them, because of such legal status. They were both mistaken as to the law. As between individuals such a-mistake is without remedy, and the parties are left by the law in the exact situation precipitated by their mistake.

In the McElrath case the Attorney-General sought to establish the broad principle that neither a mistake of fact, or of law, made upon the part of an officer, would estop the government and prevent it from going behind such mistake in the final adjustment of its rights against an individual. The court said:

“ Whether the one or the other of these views in tlie broad terms in which they are announced is correct we will not inquire.
“ Eor if the general rule applicable in such cases would preclude the government from reclaiming money which had been paid under a mistake of law simply that rule is inapplicable under the circumstances disclosed in this case. Had the appellant rested on the settlement of his account by the proper officer' of the government his right to invoke the general rule to which we have referred would have been entitled to more consideration than it can now receive.
“Upon receiving the amount awarded to him by the representatives of the government, he distinctly announced his purpose not to abide by their settlement of his accounts; but in disregard thereof he demanded an additional sum, upon the basis of full pay and allowance from June 20, 1866, to July 10, 1873.” (McElrath v. United States, 102 U. S. R., 426.)

In this case no effort was or is made, by the claimant, to attack the integrity of the adjustment of the officers, upon which he was paid after his pretended restoration, either because of a mistake of fact or law; and in that essential particular it differs from the case of McElrath.

It also differs from the McElrath case in the fact that Mc-Elrath rendered no service and occupied no relation to the government except, so far as the retroactive effect of the revocation of his dismissal gave him a relation ; but in this case the claimant from his pretended restoration on the 28th of September, 1868, to the bringing of this suit, did occupy the position, in fact, of an officer on the retired list of the Army, and as such was subject to the disqualifications of law, and the performance of such duty, as by law is incident to that relation.

As between individuals, con tracts .void, because of a defective execution, in the want of some legal requirement in their exemplification or proof, do not forfeit the entire rights of a party, who in good faith, has partly performed such agreements, and the party may recover the measure and value of such performance.

Whether the analogy of the law can be carried to the extent of applying that familiar principle to the obligation and duty of the government in this case, may admit of serious doubt; but we think it may be invoked as being within the domain of reasonable application.

It may be said that the compensation allowed by the payments made to the claimant is disproportionate to the service rendered by him on the retired list; but the statute giving compensation to such officers,-has adjusted the value of his services, and courts are not permitted to measure the value of the consideration when once fixed by the act of the parties, or the provisions of law.

The mistake of payment was made from a misapprehension of the law, as the relation of the claimant to the Army, was understood by both sides as it existed in fact.

This case, involving, as it does, a definition of the power of the Executive in the administration of his office in the regulation of the Army, and embracing in the claim and counter-claim a considerable amount of money, is worthy of the consideration of the court of ultimate jurisdiction; we therefore hold, for the purposes of this case, that he who through the official act of the President of the United States -occupies an office under the government, is subjected to all the disqualifications of such office, performs all its duties, and is paid the emoluments thereof, cannot be required to return those emoluments to the government, though the President’s act may have been in reality unlawful and void, and may afterwards be so adjudged by a court having jurisdiction of the question. It is the judgment of the court that the defendants recover the sum of $1,000 on their counter-claim, being the amount paid to the claimant from the 12th of October, 1867, to the 28th of September, 1868, when the claimant was not in fact connected with the Army.

Nott, J.,

dissenting:

The Constitution declares that the President shall be Commander-in-Chief of the Army and Navy — an undefined term, but one to which some effect must be given. If we .turn to the British Government as illustrative of the intent of the framers of the Constitution we find that the authority of the Crown over the army on the one hand’was to all intents and purposes alsolute; but on the other that the continuance of the army was dependent upon the ann ual assent of Parliament. In other words, the standing army of England was in contemplation of law never more than one year old. Within our own time we have seen Parliament refuse to abolish, by law, the system of purchase, and the Crown immediately thereafter, by royal warrant, pirohibit a system of admission to the army substantially as old as the army itself. But for the purposes of the present case it is not necessary to define the powers of the Commander-in-Chief, and I only allude to this provision of the Constitution to establish this simple proposition, that the relations of the President with the Army are not created by statute.

The question, however, presented by these cases is not whether Congress may curtail a discretion long exercised by the Commander-in-Chief, but whether the judiciary shall do so.

There is a train of decisions, beginning with the case of Decatur v. Paulding (14 Peters’s R., p. 497), and continuing down to the case of Frelinghuysen v. Key (110 U. S. R., 63), in which the Supreme Court has uniformly held that an inherent discretion attaches to the high executive officers of the government— a discretion not given by statute law nor dependent upon it. And if any general principle can be formulated from those cases, it is that the discretion of a Secretary is so broad and general that there must be a special enactment assigning a specific duty to reduce him to the level of a ministerial officer.

In the light of those decisions the Supreme Court might well repeat its utterance in the earlier case of the United States v. Macdaniel (7 Peters’s R., p. 14), and say now as it said fifty years ago—

“A practical knowledge of the action of.any one of the great departmentsof the government must convinceevery person that the head of a department, in the distribution of its duties and responsibilities, is often compelled to exercise his discretion. He is limited in the exercise of his powers by the law, but it does not follow that he must show a statutory provision for everything he does. No government could be administered on such jn’inciples. To attempt to regulate by law the minute movements of every part of the complicated machinery of government would evince a most unpardonable ignorance on the subject. Whilst the great outlinesof its'movement may be marked out, and limitations imposed on the exercise of its powers, there are numberless things which must be done that can neither be anticipated nor defined, and which are essential to the proper action of the government.’’

Notwithstanding the constitutional origin of the President’s authority ; and notwithstanding the unquestioned exercise of his discretion for a great number of years, and notwithstanding the decisions of the Supreme Court concerning the judgment and discretion of the heads of the departments, a dozen different cases now bring before this court in a dozen different ways the question whether there is attached to the office of President the inherent judgment and discretion which will enable the executive head of the nation to revise in proper cases his own acts, or whether, as in the case of a ministerial officer, his discretion is only that which is given by statute, and his official authority is exhausted as soon as exercised.

In some of these cases the question is whether a President who has improvidently issued an order can, by its revocation, annul its evil consequences. In others, the question is whether a President who ought to have made an order on a certain day can subsequently effect the same legal result by an order entered nune pro tune. But in all, the questions presented may be resolved into the simple inquiry whether the President, in matters of executive and military jurisdiction, is vested with judgment and discretion which, when exercised within its own proper sphere, cannot be questioned elsewhere, or whether h acts are subject to the judicial scrutiny that ordinarily is extended to the acts of ministerial officers.

There are several considerations which forbid that the discretion of the Executive should be thus curtailed.

In the first place, there must inevitably come before the executive head of a great nation innumerable questions of the gravest magnitude: questions of life and liberty, of the rights of persons, and the rights of things. No court determines more matters of grave import; no judge deals with so many. The President, moreover, has none of the machinery of judicial investigation, nor the unlimited time allowed to courts. His decisions rest on thee,v parte reports of his subordinates, and the vigor of executive administration requires of him that decisive action by which the public welfare is often purchased at the cost of personal injustice. And it is not desirable that judicial methods be forced upon the Executive, nor that the tardiness which is the reproach of justice should clog the more energetic branch of the government. Therefore, a doctrine which denies to the President the power to revoke, his own orders, to revise his own judgments, to correct his own mistakes, is a doctrine which must contain this inherent vice: that it compels the judiciary to overrule the deliberate judgment of the President, and to perpetuate his official errors.

I repeat this lest it be overlooked : If the acts of the President, revising his own proceedings, can be brought into court and attacked after twenty years’ effect has been given to them, and if the court must hold that the constitutional and legal power of the Executive concerning the dismissal and transfer of officers of the Army and Navy is exhausted as soon as exercised, this inevitable result must follow, that the judiciary must uphold in such cases the mistakes of the President and overrule his deliberate judgment.

In the second place, I know of no tribunals which have such ample means for arriving at correct results as courts of law, and no official acts to which the law ascribes such solemnity and finality as the judgments of courts. Their records import as has been often said, absolute verity. Yet I know of no court of record which has not power to correct its own errors by setting aside its judgments and entering orders nuno pro tuno. Is it possible that the chief executive officer of the government, the constitu tionally-dec!ared Commander-in-Chief of the Army and Navy, has not the same discretion to revise his own acts in matters inyolving judgment and discretion which is conceded to every county judge in the land ? Indeed it may not be irreverent to say that that question involves the sum and the substance of the controversy.; the one side asserts for the President only the discretion of a county judge, the other maintains that the President has no more discretion than a constable.

It has been asked in the progress of these cases whether the President’s order dismissing or wholly retiring an officer does not put him out of the Army; and, if put of the Army, whether ho can be put back otherwise than by the nomination of the President and confirmation of the Senate; and whether, if the officer be not thus restored, he does not remain a civilian, and whether the President can put a civilian on the retired list?

These questions can best be answered by asking some others: If a court of competent jurisdiction render a decree of absolute divorce, would not the parties cease to be husband and wife; and if a man and a woman are not husband and wife how can they be brought within t'lie bonds of matrimony but by marriage; and if the local law require a marriage license before there can be a valid marriage (analogous to the confirmation of the Senate in the case of appointments), how can the court avoid that legal requirement and remarry the divorced couple by the evasive process of setting aside the decree? Moreover, if the woman has married another man ad interim, how can the Court divorce him, he being no party to the record and having had no day in court?

It may also be asked whether a magistrate or clergyman who solemnizes a marriage can revoke his act and leave the parties as they were before; and whether a notary who protests a note can revoke his notices and thereby discharge the indorser; and whether a commissioner who administers an oath can vacate his jurat and relieve the affiant from the penalties of perjury? To these questions I answer; 1st, that marriage is at law a contract of the parties; 2d, that the magistrate or clergyman is but the official witness of the transaction; 3d, that public policy iorbids that even the contracting parties can annul their own agreement; and 4th, that these supposed analogies are all cases of ministerial officers. I also note the fact that every one of the many illustrations adduced to support the defendants’ position in these eases has been the case of a ministerial officer.

Agaiu, it may be asked if the President can act in the manner known in courts as entering an order nuno fro tuno, what is there to prevent his directing that an officer be commissioned of a date anterior to his entering the Army? And if the President can set aside an order “ wholly retiring” an officer and direct that he be placed on the retired list, what is there to prevent him from revoking the order which dismissed General Fitz John Porter, and from placing him on the retired list as of the antecedent date when he was cashiered? These questions, likewise, can be best answered by asking some others. Every court of record corrects its mistakes and delays by entering orders nuno pro tuno ; but can a court enter such an order as of a date anterior to the bringing of the action? Or can it exercise this power after it has lost jurisdiction ? Or can it use the power to destroy the intervening rights of third persons? Every court, within due limits, can vacate judgments and grant new trials, but can the judges of a court sit in review of their predecessors and vacate judgments rendered twenty years ago? Every court can correct, at any time, its own record and supply the omissions of its clerk, but can a court, in the exercise of this discretion, take away the legal rights of the party whom it has power to assist ? Undoubtedly the discretion of the President must be exercised within the boundaries of his legal powers and within the period of his official jurisdiction. Undoubtedly the discretion of the President may be abused, but the Constitution nevertheless places upon him the responsibilities of Oommander-in-Ohief. Undoubtedly men are hung who ought to be pardoned, and men are pardoned who ought to be hung, but the Constitution nevertheless places the pardoning power exclusively in the hands of the President. Undoubtedly bills have been vetoed which Congress and public sentiment desired should become laws, and acts have become laws replete with inaccuracies and obscurities that the President never should have approved, but the Constitution nevertheless gives the veto power to the President alone, and expects its exercise for the public welfare.

In the third place there are under our government certain methods of administration which the Supreme Court has termed systems. No statu e declares that the jurisdiction of the cir-euit courts in matters of the custom revenues is exclusive, yet the Supreme Court has so held, because the means provided for ascertaining the facts in those cases constitute a system. (Nicoll's Case, 7 Wall. R., 122.) No statute declares that the proceedings, of the Commissioner of Internal Revenue in matters of refunding taxes shall be conclusive, but it is well settled that if the case be within his jurisdiction, his determination of the facts concludes both the accounting officers and the judiciary. It is true that there is no statute investing the President in terms with an exclusive jurisdiction, but it is equally true that when an Army and Navy were established responsibilities were created with them; that somebody had to determine questions connected with the official personnel of each service; that from the beginning the Commander-in-Ohief has exercised that responsibility; that during the whole life of the Army and Navy Congress has left the responsibility, the power, the discretion in the hands of the President; that until this court was reconstituted, in 1863, no practicable means existed for even indirectly reviewing his. discretion; and that if the judiciary now reduce his discretion in such matters to that of a ministerial officer it in effect will be a piece of judicial legislation more sweeping than the legislative power has ever sought to exercise over the constitutional functions of the Commander-in Chief. Nevertheless, the system which has assigned this jurisdiction to the President is a narrow one. It is an exclusive jurisdiction simply as to the administrative duties of his office; a jurisdiction exclusive in enabling him to exercise his discretion in the manner which he deems best, at the time which he deems best, of the time which he deems best; a jurisdiction exclusive in enabling him to correct his official errors within the limits of his legal powers, by rectifying the record of his lawful acts, and by determining what he has done and what he has intended to do. In other words, the President has authority to exercise his legal powers in his own way, and the struggle in all of these cases has been to tell the President that he must exercise them after the manner of a ministerial officer.

And here I desire to say that all that is maintained in this opinion concerning the exclusi%re j uri.' diet ion of the President was held by this court it Blake's Case (14 C. Cls. R., 462). There the court was face to face with the fact that the resignation which severed an officer’s connection with the Army was the act of an insane man; a nullity in law; and if the court went behind the record of the War Department it must so hold. What did the court do ? It refused to review the decision of the Executive upon the sanity of the officer, and, speaking through Mr. Justice Davis, said, “ We are all of opinion that we have no power to review or question it here.” (14 C. Cls. R., 462.)

In the fourth place “usages had been established in every department of the government,” says the Supreme Court, “which have become a hind of common law” (United States v. Macdaniel, 7 Peters, p. 14); and if there be any common law of the executive branch of the government well settled, it is that the head of an executive department may revise his own acts but cannot reverse the rulings of his predecessors. (United States v. Bank of the Metropolis, 15 Peters’s R., 377, 401.) The discretion thus accorded to an assistant cannot well be denied to the chief. The limitation under which that discretion is exercised is analogous to the limitation which restricts courts in their exercise of a similar power in setting aside judgments and granting new trials, as was in effect held in the case just cited. It is proper that the President carry out his own intent and exercise his own best judgment; it is not proper that he set up his own judgment as better than that of the Presidents who have gone before him, or defeat their final decisions, or undo what they have legally done.

When the case of Major Montgomery (5 C. Cls. R., 93) came before this court it appeared that President Lincoln had dismissed summarily, or arbitrarily',” as he termed it, and without a hearing, one of the thirteen quartermasters having the rank of major in the regular Army; and had, moreover, appointed the officer’s successor. It also appeared that he had finally revoked his ow'n order of dismissal, thereby in fact, if not in law, restoring the officer to the Army. The court gave to that case most careful consideration, and approached its decision with this threefold purpose: 1st. Of maintaining the laws of Congress; 2d. Of upholding the discretionary power of the President; 3d. Of doing no injustice to either officer. The rule laid down by the court as its conclusion was this:

“An order of the President dismissing a military officer may be revoked by the same President that issued it, and if the office be not filled at the time of revocation, and if the pay thereof has not been paid lawfully to another, the dismissed officer will be entitled to the office and to the pay ad interim ; but if the office be filled by another the revocation mustremain suspended till a vacancy occur ; and if the pay ád interim has been paid laufully to another the officer must talce his reinstatement cum onere. The defendants cannot be held to pay a second time.” (5 C. Cls. R., 93.)

Fifteen years have now elapsed since that decision was made, and many such cases have come before this court, but I have heard no rule suggested which will better carry out the threefold purpose of maintaining the laws of Congress, the necessary direction of the President, the just rights of officers of the Army. It is easy to frame a rule which will accomplish one of these purposes; but the object of the judiciary should be to attain all.

As the adverse doctrine contended for by the defendants’ counsel is founded upon a literal application of certain expressions of the Supreme Court in Mimmack’s, McElrath’s, and Blake’s cases, I proceed to inquire whether the. rule in Montgomery’s case has been overruled by those decisions, and with what effect it might be applied to the cases now before this court?

3. The Supreme Court was not aware when it gave utterance to those expressions that they might be used to oust officers who have been in service more than twenty years. For if the use now made of them is sound — if the President is without discretion to correct his own errors — if an officer dismissed by mistake cannot be restored by the President who dismissed him; if the revocation, in due time, of an erroneous order is a nullity; if the court can go behind the President’s record of the President’s act and undo what he has done, and deny what he says he ought to have done; if those officers who, in time of war, were dismissed without a hearing and who were actually restored, and finally retired; if they, when in active service, were nothing but civilians and remain nothing but civilians to this day, there is no saying how many officers who have grown gray in their country’s service will lose their commissions through this recent theory of Executive inability. Let us take as an illustration this old case of Major Montgomery. President Lincoln dismissed him in 1863 and reinstated him in 1864; he continued in active service for ten- years; he was then retired (the Ar ny Register tell us), after more than thirty years of active service, and he is now upon the retired list. Will the Supreme Court, because of expressions proper and pertinent in the cases in which they were uttered, hold that the revocation of President Lincoln was lawless; that through the subsequent years of active service Major Montgomery was but a civilian; that President Grant was mistaken when he promoted him to be lieutenant-colonel, and the Senate mistaken when it confirmed the nomination; and, most extraordinary of all, will the Supreme Court hold that from 1864 to 1872, during’ which period three Presidents, and the Senate, and the War 'Department supposed the list of quartermasters to be full, there was, in fact, always a vacancy; and where the name of Alexander Montgomery was supposed to be there was, in law, always a blank 9

In a word, this court is now asked to extend those expressions of the Supreme Court to a different class of cases, and to lay down a harsh and needless rule, which will save a few dollars to the Treasury, will greatly curtail the rightful discretion of the President, will hinder the administration of executive business, will do great wrong to many officers to whom the public faith was long since pledged, will certainly destroy the tenure of office of a large number of officers, and which, for anything the court knows to the contrary, may .shake the positions of half the retired list.

2. I come now to the inquiry‘whether the rule in Montgomery’s case has been overruled in cases that have been before the Supreme Court.

Mimmack's Case (10 C. Cls. R., 584; 97 U. S.R., 426) was founded upon the resignation of the officer, and not upon the dismissal of the President. The officer was never reinstated in fact; the order of revocation was never promulgated, it remaining inter partes a matter between the outgoing President on one side, the Secretary of War and the General of the Army on the other. Such being the undefined condition of affairs when the new President came into office, he took up the unsettled matter and settled it by deciding that the paper purporting to be a resignation was in fact the resignation of the offic'er. Finally, the pay which Mini mack sought to recover had been paid to another, which under the rule in Montgomery’s case was fatal to a recovery.

And here I desire to note the distinction between cases founded on resignation and dismissal. Where an officer resigns and his resignation is accepted, and he is notified of the acceptance, the statute comes in and renders a mutual act of severance complete. But whether the paper purporting to be a resignation is a resignation, and whether the order purporting to be an acceptance is an acceptance, are matters to be decided by the President. Hence, where the officer, instead of accepting the severance, controverts its mutuality, and asserts that the resignation is a forgery, or was stolen from his trunk, or transmitted while he was insane, it is within the jurisdiction of the President to inquire into the matter, and revoke an order which had no legal foundation.

The opinion of Attorney-General Evarts in Mimmack’s case has been cited with deserved commendation to sustain the defendant’s position. But the Attorney-General, with the intuition of a true lawyer, points out the distinction between cases where the severance was mutual and not mutual; and he, in effect, concedes that, where the resignation was not “valid or efficient,” the President may pass upon the question of resignation or no resignation, and revoke his order of acceptance.

In McElrath’s Case (12 C. Cls. R., 201; 102 U. S. R., 426), the officer sent in his resignation and was dismissed; he acquiesced in the dismissal; seven years afterwards, and under another President, came the so-called revocation, and during the seven years’ interval the pay of the office had been lawfully paid to another. It is therefore manifest that the rule in Montgomery’s case could have disposed of McElrath’s claim thrice over.

Blake's Case (14 C. Cls. R., 226; 103 U. S. R., 22) was one of resignation, and not of dismissal; the President who accepted the resignation did not revoke the order; the question of the officer’s sanity was not raised until after he.had been notified of the acceptance; the President who accepted the resignation held the question of his insanity under advisement for a year, and decided it by appointing his successor; the claimant sought to recover the pay ad interim which had been lawfully paid to another; no counter-claim was set up by the defendants as to pay which he had received; and the suit was brought upon the theory that the court would pass upon the question of sanity, and hold that both the resignation and the acceptance were absolutely void.

It is manifest that the question of revocation lay at the very threshold of the case. If the Supreme Court deemed the order of the President accepting the resignation irrevocable, ’twas easy to say so, and that was the end of the case. Did the Supreme Court say so % No ; on the contrary it said to the claimant, in a most careful and elaborate opinion, substantially this : The President, with the concurrence of the Senate, had power to remove you in time of peace, notwithstanding that the Act 13th July, 1866 (12 Stat. L., p. 92, § 5, ch. 176), assures to officers a trial by court-martial before the President alone can dismiss them. Therefore, you cannot recover pay after your successor was appointed. As to the pay which accrued between the acceptance of your resignation and the appointment of your successor, it is barred by the statute of limitations.

Judging from what the Supreme Court said, and from what it refrained from saying, I infer that the judges thought that President Grant might have' revoked his own order of acceptance, and that they did not wish needlessly to decide that President Hayes could not review another President’s decisions nor revoke his final action.

What, then, are the distinctive facts of these three cases ? That in all of them there was the resignation of the officer ; in none of them restoration to office by the President who acted on the resignation. Whether they become binding authorities in cases where the distinctive facts are actually the reverse of these — in cases where officers did not resign and were reinstated by the President who dismissed them, it may not be unreasonable to doubt.

As to Keyes’s Case (15 C. Cls. R., 532; recently affirmed), it is enough to say that the purpose of the action was to have this court review the proceedings of a court-martial, and declare the President’s approval of its sentence illegal and void. The officer was cashiered; the sentence was carried into effect; no revocation was made; no reinstatement attempted.

I now proceed to inquire how the rule in Montgomery’s case will apply to the cases before the court.

In Lieutenant Miller’s Case the question is really not one of restoration to the Army, but of transfer from one list of retired officers to another.

The Retiring Board had found this officer unfit for active service;, the President agreed that he was unfit for active service ; the officer conceded that he was unfit for active service. But he at the same time claimed that he had been erroneously placed on the “wholly retired” list, and instantly appealed to the President from the conclusion of the Retiring Board.

“For officers leaving the Army or Uavy there is no term analogous to-discharge; if they leave the service honorably they leave by resignation or retirement; if they leave dishonorably they are dismissed or cashiered.” (General Emory's Case, ante.) The President was not required to dismiss Lieutenant Miller by the Act 3d August, 1861 (12 Stat. L., p. 289, § 17), but to retire him. Two classes of retired officers were designated by the statute: the one “retired,” with pay for life irpon certain conditions, the other “ wholly retired,” with pay for one year; and it was within the statutory power of the President to place the retired officer in whichever class he saw fit.

Amid these circumstances what was the duty of the President? If he were a ministerial officer his functions were at an end when he improvidently approved the finding of the Board. If he were an executive, officer it was his duty to exércisq his discretion in furtherance of justice. How was he to exercise this discretion? Must he refrain from filling the vacancy on the active list to the detriment of the public service until he could examine into the rights and wrongs of the retiring officer ? Or must he lay aside other public business and examine the case on the instaut, so as to send Lieutenant Miller’s successor promptly to the field ? The course which President Grant pursued was, in my judgment, not merely what he might have done, but precisely what he ought to have done. He held Lieutenant Miller’s appeal under advisement; he appointed an officer to take his place on the active list; he reinvestigated his case, and he finally transferred him, not to the active list, but in conformity with the recommendation of the Surgeon-General, from the list of “whollyretired” to the list of retired officers. The action of the President was replete with common sense and a love of justice.

In Capt. Robert H. Montgomery's Case the claimant was a second lieutenant in the Fifth Cavalry. While a prisoner of war he was dismissed by President Lincoln. Subsequently the order was revoked “by direction of the President,” and on the same day the claimant was assigned to duty as second lieutenant in his own regiment. He served as such and was paid as such and was promoted as such. After five years’ service he was again promoted, and is now a captain, or supposed to be a captain, in the service.

Upon the foregoing facts the government contends that it should recover back all the pay paid to Captain Montgomery since he was dismissed in 1863, amounting to $42,636. And the reasoning by which this result is reached is this, that President Lincoln was mistaken in thinking that he could revoke his own order and thereby expunge the record of the officer’s dismissal, and that President Johnson was mistaken in thinking that he could promote a civilian to be a first lieutenant, and that President Grant was mistaken in thinking that he could promote a civilian to be a captain, and that the Senate was twice mistaken in thinking that Lieutenant Montgomery could be promoted when in law he was not in the Army; and consequently that all of the payments which have been made to the supposed officer were made without authority of law.

Under the rule in Montgomery’s case, it would be held, first, that the order of dismissal being revoked by the President who issued it the officer was reinstated; second, that his successor having been immediately appointed, and no evidence having been offered by the claimant to repel the presumption, it must be inferred that the pay of the office was lawfully paid to another, and that he, like Major Montgomery, must take his reinstatement cum onere.

In Chaplain Palen's Case the claimant was one of a list of officers mustered out in September, 1865, because their “ services were no longer needed.” In March, 1866, the order was revoked by the President, and the claimant thereupon returned to duty. He was paid, so long as he remained in service, and the defendants now seek to recover back the pay. Under the rule, in Montgomery, it would be held that he was reinstated ; but it is not necessary to pass' upon the question of the President’s authority, inasmuch as we are all agreed that the government cannot recover back the pay of an officer defacto.

In Captain Bennett’s Case the claimant resigned, his resignation was accepted, and he was notified of the acceptance. The case is submitted upon those facts, and there is nothing to explain the revocation which speedily followed, nor to show that the President retained jurisdiction of the officer. His assent to the revocation we may infer; but on the naked facts presented we must also infer that with his own concurrence he had then ceased to be an officer in the Army. This case is simply one of resignation, and, for the reasons stated when commenting upon Mimmack’s case {ante), I concur in holding that the defendants may recover back the pay which the claimant received ad interim.

Major Hun Idds Case fully justifies the restriction of the rule in Montgomery’s.case to “the same President.” It discloses the sentence of a court-martial “confirmed” by one President in 1873 and “disapproved” by another President in 1877. For reasons previously set forth, I concur in regarding the revocation of President Hayes as void, and in holding that the defendants should recover back the pay received by him for the intervening four years in which he was an officer neither de jure nor defacto.

After examining these cases now decided, and others still under advisement, I am constrained to say that the rule in Montgomery’s case best carries out what should be the threefold purpose of the judiciary — of maintaining the laws of Congress, of upholding the discretion of the President, of doing justice to the individual officer.

The majority of the court hold in these cases that the President cannot revoke his own order without authority of law; and in that proposition I concur. The majority of the court also hold that such authority of law does not exist, because it is not to be found in the statutes. I find it in the decisions of the Supreme Court (United States v. Macdaniel, 7 Peters, 14; Frelinghuysen v. Key, 110 U. S. R., 63); in the common law of executive usage; in' the necessity of such a power existing somewhere; in the fact that Congress have allowed the President to exercise it untrammeled since the Army and Navy were established, and in the inherent discretion which is the attribute of a great office.

This case of Lieutenant Miller and the following cases of Montgomery, Bennett, Palen, and Eunkle were decided upon the same day, and the above opinion of Nott, J., was entitled and filed as his opinion m eacli.  