
    ROBERT G. PECK v. THE UNITED STATES.
    [No. 22880.
    Decided January 4, 1904.]
    
      On the Proofs.
    
    In August, 1898, the Senate being in recess, the President seeks to advance Commodore Schley to be a rear-admiral for “eminent cmclconspiou. ous conduct in battle. ’ ’ 'Supposing that a vacancy is thereby caused in the grade of commodore, the President advances Captain Hig-ginson to the grade of commodore and other officers to fill the supposed vacancies, until the claimant, a lieutenant, is advanced to the grade of lieutenant-commander. The officers so advanced are so recognized by the Departments and paid accordingly. In December, the Senate being in session, the nomination of Commodore Schley is not acted upon, but the promotions of other officers under him are confirmed, including the claimant, whom the President commissions. Subsequently it is held by the accounting officers that there was no vacancy to which these officers could be appointed, and the overpayments to them are deducted.
    I.Under the Revised Statutes, §§ 1506, 1507, an officer in the Navy, by and with the consent of the Senate, may be advanced in rank for ‘1 eminent and conspicuous conduct in battle, ’ ’ and shall be so promoted though the number of his grade is full.
    II.Where the President makes such an intended promotion during a recess of the Senate, no vacancy is thereby created, and there is no office to which an officer below the one advanced can be promoted.
    III.Where there is no vacancy to which an officer can be appointed, it is not a case where the President is authorized by the Constitution “to fill up all vacancies that may happen during the recess of the Senate.”
    
    
      
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. On August 10,1898, the United States Senate being then in recess, the following commission was issued to Winfield Scott Schley, a commodore in the Navy:
    “ WilTAam McKinley, 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 ability of Winfield Scott Schley, I do advance him six numbers and appoint him a rear-admiral in the Navy, for eminent and conspicuous conduct in battle, from the 10th day of August, 1898, in the service of the United States. He is, therefore, carefully and diligently to discharge the duties of a rear-admiral by doing and performing all manner of things thereunto belonging. And I do strictly charge and require all officers, seamen, and marines under his command to be obedient to his orders as a rear-admiral. 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 his superior officer set over him, according to the rules and discipline of the Navy. This commission to continue in force during the pleasure of the President of the United States for the time being, and until the end of the next session of the Senate.
    “Given under my hand at Washington this tenth day of August, in the year of our Lord one thousand eight hundred and ninety-eight, and in the 123d year of the Independence of the United States.
    “William McKinley.
    “By the President:
    “ JOHN D. LONG,
    ‘ ‘ Secretary of the Wavy. ”
    II. The commission so issued to Commodore Schley August 10, 1898, as set forth in the preceding finding, caused a supposed vacancy in the grade of commodore, to which Capt. Francis J. Higginson was promoted. To the supposed vacancy caused by the promotion of Captain Higginson, Commander Charles H. Davis was promoted. To the supposed vacancy caused by the promotion of Commander Davis, Lieut. Commander William H. Reeder was promoted. To the supposed vacancy caused by the promotion of Lieutenant-Corn-mander Beeder, the claimant herein, Lieut. Bobert G. Peck, was promoted. To the supposed vacancy caused by the promotion of Lieutenant Peck, Hilary P. Jones, lieutenant, junior grade, was promoted, and to the supposed vacancy caused by the promotion of Lieutenant Jones, junior grade, Ensign William Y. Pratt was promoted.
    III. The officers so promoted to said supposed vacancies caused bjr the advancement of Commodore Schley were addressed as of the rank to which they were severally promoted and were treated by the Navy Department as holding that rank from August 10, 1898.
    IY. The day after the Senate assembled in December, 1898, the President nominated Commodore Schley to be a rear-admiral, under Bevised Statutes, 1506 and 1507, to take effect from August 10, 1898. He also nominated all the officers promoted to said supposed vacancies in consequence of the advancement and promotion of said Commodore Schley, all of them to take effect from August 10, 1898.
    No action was taken by the Senate on the nomination of Commodore Schley until March 3, 1899, when he was renominated and confirmed as rear-admiral under the provisions of the navy personnel act of that date, which increased the number of officers in that grade, and he took rank from that date.
    The nominations of all the other officers so promoted August 10, 1898, in consequence of the advancement of Commodore Schley, were confirmed, the following being the action in the case of the claimant:
    “In Executive SessioN,
    “SENATE OE TI-IE UNITED STATES,
    
      “December 11/,, 1898.
    
    “Mesolved, That the Senate advise and consent to the appointment of the following-named persons agreeably to their nominations, respectively, viz:
    “For promotion in the Navy of the United States: * * * Lieutenant Bobert G. Peck, to be a lieutenant-commander in the Navy from the 10th day of August, 1898, vice Lieutenant-Commander William H. Beeder, promoted.” * * *
    Y. On the 7th day of December, 1898, the Auditor of the Treasury for the Navy Department made a settlement whereby the claimant was allowed the difference between $2,200 per annum, the other duty pay of a lieutenant after five years’ service, and §2,400, the other . duty pay of a lieutenant-commander for the first four years, from August 10 to November 15, 1898, inclusive, amounting to $53.70. After the latter date he was taken up on the rolls and paid as a lieutenant-commander.
    VI. On December 10,1900, said Auditor, on his own motion and in accordance with the opinion of the Attorney-General and the ruling of the Comptroller, made a new settlement with the claimant whereby he charged back the amount allowed by said settlement December 7,1898, and also charged the claimant with the sum of $15.34 additional as the difference between the pay of a lieutenant and of a lieutenant-commander from November 16 to December 13, 1898, making a total disallowance of $69.04. On June 26, 1901, the claimant appealed from the action of the Auditor to the Comptroller, who, on August 15, 1901, affirmed the Auditor’s decision.
    VII. The claimant was retired with the rank of commander June 30, 1899.
    . Mr. George A. King for the claimant. Messrs. George A. ■and William B. King were on the brief.
    By the Constitution (Art. II, sec. 2, clause 3) “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. ”
    Section 1506 provides for advancement and promotion “by and with the advice and consent of the Senate.” This is only a repetition of the phrase occurring in the Constitution. Art. II, sec. 2, clause 2), as to all officers of the United States. It is to be read in the Constitution as qualified by the succeeding clause as to recess appointments by the President. So also it should be read in all statutes where it occurs. It is repeatedly used throughout the Revised Statutes, and particularly in Title XV, “The Navy,” sections 1369,1378,1391, 1400, 1402, 1413.
    A question was originally made as to the power of the President to fill vacancies unless they had occurred through some casualty happening after the adjournment of the Senate. This doubt has long since been solved. The established construction is that the power of the President to fill a vacancy during the recess of the Senate is coextensive with his right to nominate and appoint if the Senate were in session. . {Attorney-General Gushing, 7 Ops., 186, 216, 217; Attorney-General Stanhery, 12 Ops., 32, 38; Attorney-General Devens, 16 Ops., 522, 530; and Attorney- General Miller, 19 Ops., 261.)
    The President must have been advised to the same effect when he granted recess commissions to Sampson and Schlej" as rear-admirals. The appointments were made by him as constitutional recess appointments, the additional offices created in certain contingencies by section 1506.of the Revised Statutes. His action in thus filling them was in conformity to the long-continued construction of that clause of the Constitution.
    The promotion of all the other officers was on the date of the advancement and promotion of Sampson and Schley. True, they did not receive their commissions until somewhat later; but thej'' were entitled to promotion immediately upon the promotion of the officers ahead of them, and their commissions both during the recess of the Senate and afterwards, as well as the nomination to and confirmation by the Senate, were properly made to date from the 10th of August, 1898. (O'Shea v. United States, 28 C. Cls. R., 392; Blondín y. United States, 35 C. Cls. R., 568.) •
    There is nothing in the case of Young v. United States (19-C. Cls. R., 145) in conflict with this view. That case did not involve the power of the President to make a recess appointment under section 1506. It involved the question whether an appointment made under that section would have a retroactive operation to the date of the act of heroism on which the advancement was based. It was decided that the promotion takes effect only from its date. Even this conclusion seems to conflict with that of Justice Story in United States v. Vinton (Federal Cases, No. 16624). And a retroactive- construction was given to the analogous grant of a distinguished-service certificate to an enlisted man of the Army in McNamara v. United States (28 C. Cls. R., 416). We need not, however, question the doctrine announced in the Young case. Here a retroactive effect is claimed onty from the date of the vacancy. This is allowed by Revised Statutes, section 1562, and the act of 1874, June 22 (chap. 392, sec. 1, 1 Supp. Rev. Stat., 36), The appointment was, therefore, good and valid from its date. August 10,1898, and the claimant was regularly and properly paid as a lieutenant-commander from that date.
    But even if his appointment on August 10,1898, was irregular or premature, he was treated and addressed by the Department as a lieutenant-commander from that date. He was also recognized as such by the Auditor for the Navy Department, who made a settlement in his favor December 7, 1898, allowing him pay as a lieutenant-commander from the date of his appointment, August 10,1898. Not for two years was any question made by anyone as to the correctness of this payment. On the 10th of December, 1900, the amount was, for the first time, charged against him as an overpayment, and on appeal this action was confirmed by the Comptroller. This action was in contravention of the finality attributed to the settlement of the accounting officers unless revised by the Comptroller ivithin a year, by the act of 1894, July 31 (chap. 174, sec. 8, 2 Supp. Rev. Stat., 215). It was also in contravention of the policy established by the act of 1892, July 16 (chap. 195, par. 1, 2 Supp. Rev. Stat., 37), for the Army, which, by section 13 of the navy personnel act (2 Supp. Revn Stat., 972) now applies also to the Navy.
    It has been held as regards an officer even when on the retired list “ 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, can not 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.” (Miller \\ United States, 19 C. Cls. R., 338, 355, 356.) The same rule was laid down and followed in Montgomery v. United, States (19 C. Cls. R., 370, 379); Bennetty. United States (19 C. Cls. R., 379, 388), and Palen v. United States (19 C. Cls. R., 389, 394).
    The Supreme Court also held in Badeau v. United States (130 U. S., 439,452): '
    
      “But inasmuch as the claimant, if not an officer de jure, acted as an officer de facto, we are not inclined to hold that he had received money which, ex aequo et bono, he ought to return.”
    The case, therefore, stands in the same situation as if the Government were suing the claimant to recover back this payment. No court would, under the decisions cited, sanction a recovery back in such a case. A fortiori, the accounting officers were not warranted in checking it against the current pay of the claimant on their own motion.
    All these appointments have received legislative approval and ratification by a provision contained in the naval appropriation act of 1901, March 3 (chap. 852, par. 2, 2 Supp. Rev. Stat., 1548).
    This provision immediately follows the one in reference to “shore duty beyond seas,” considered by this court in William M. Irwin \.,The United States (38 C. Cls. R., 87), and there held to be retroactive. The retroactive character of the present provision is equally manifest. “Advancement in rank” under section 1506 of the Revised Statutes “whensoever made” is here recognized. The ratification relates to advancement whether made while the Senate was in session or while it was in recess.
    Thus the advancement of Commodore Schley from August 10, 1898, to the grade of rear-admiral made under section 1506 was ratified. Consequently a vacancy existed, making room for the successive promotions in the series, of which the claimant was one. The act of 1901 can not have full effect without regarding it as validating the promotion of all other officers promoted in consequence of such advancement. The appointment and payment of the claimant must, therefore, now be deemed to have complete statutory ratification.
    The following additional authorities are cited in support of the positions taken on behalf of the claimant:
    
      Gould v. United States (19 C. Cls. R., 593), sustaining a recess appointment of an officer of the Army.
    
      Shfivrtleff v. United States (189 U. S., 311), affirming the judgment of this court (36 C. Cls. R., 34) on grounds different from and inconsistent with those taken in the opinion of this court. The Supreme Court sustains the removal of an officer by the President without the assignment of any reason, although the statute provides that the officer might bo removed “for inefficiency, neglect, or malfeasance in office.” The court, without examining the general power of Congress to limit the removing power of the President, sustains the removal on the ground that it can not be supposed that Congress intended to derogate from the power of removal otherwise universally possessed by the President.
    By parity of reason is the court to infer from doubtful expressions used in a statute that these offices in the Navy alone of all offices in the Government are not within the Presidential power of making a recess appointment? And if such a construction can be placed upon the statute would it not conflict with the constitutional provision conferring upon the President the power to make such recess appointments?
    
      Qhinn v. United States (37 C. Cls. R., 521) holds that - money in good faith paid and received for services rendered de facto can not be recovered back, even in case of subsequent discovery of an infirmity in the title to the office.
    
      Mr. John Q. Thompson (with whom was Mr. Assistant Attorney- General Pradt), for the defendants.
   Peelle, J.,

delivered the opinion of the court:

The claimant by his action seeks to recover the difference between the pay of a lieutenant and a lieutenant-commander in the United States Navy from August 10 to December 13, 1898, during which period the claimant was paid as a lieutenant-commander; but two jmars later the difference between the pajr of that grade and that of a lieutenant in the Navjr was deducted in the settlement of his account, on the ground that at the time of his appointment as a lieutenantrcommander, during a recess of the Senate, there was no vacancjr to which he could be appointed.

The facts are that on August 10, 1898, the claimant was a lieutenant in the United States Navy, and on that date, the Senate being in recess, the President sought to advance Commodore Schley to be a rear-admiral from August'10,1898, under the provisions of Revised Statutes, section 1506, as amended by the act of June 17,1878 (20 Stat. L., 144), and section 1507, for “ eminent and conspicuous conduct in battle; ” and supposing- a vacancy was thereby caused in the grade of commodore, the President advanced and promoted Capt. Francis J. Hig-ginson to the grade of commodore. To the supposed vacancy caused by the promotion of Captain Higginson, the President advanced and promoted Commander Charles H. Davis to the grade of captain; to the supposed vacancy caused by the promotion of Commander Davis, the President advanced and promoted Lieut. Commander William H. Reeder to that grade, and to the supposed vacancy thus caused by the promotion of Lieutenant-Commander Reeder, the President advanced and promoted Lieut. Robert G. Peck, the claimant herein, to the grade of lieutenant-commander. But the subsequent promotions to fill the grades caused by the supposed vacancies need not be further dwelt upon here. The officers so advanced and promoted were recognized by the Department as of the rank to which they were severally advanced and promoted from August 10, 1898.

When the Congress convened pursuant to law in December, 1898, Commodore Schley was nominated to the Senate to be a rear-admiral, under the provisions of the Revised Statutes cited, to take effect from August 10, 1898, and in consequence of his advancement to the grade of rear-admiral, all the other officers so appointed in succession “during the recess of the Senate ” were nominated to the supposed vacancy caused by his advancement. The nomination of Commodore Sehlejq however, was not acted upon, while all the others so nominated were confirmed on December 14,1898, among whom was the claimant herein, “to be a lieutenant-commander in the Navy from August 10,1898, vice Lieut. Commander William H. Reeder, promoted.” The claimant was accordingly appointed by the President to that grade to take rank from the date named.

Thereafter, on March 3, 1899, Commodore Schley, having-been again nominated to be a rear-admiral, was confirmed as such under the provisions of the act of that date known as the .navy personnel act (abolishing the grade of commodore and increasing the number of rear-admirals) and took rank from that date and not from the date of said recess appointment.

At the time of the advancement of Commodore Schley, during- the- recess of the Senate, there was no vacancjr to which he could be appointed unless the same existed or arose under the sections of the statute cited, which, as amended, read:

“Sec. 1506. Any officer of the Navy may, by and with the advice and consent of the Senate, be advanced, not exceeding-thirty numbers in rank, for eminent and conspicuous conduct in battle or extraordinary heroism; and the rank of officers shall not be changed except in accordance with the provisions of existing law, and by and with the advice and consent of the Senate.
“Sec. 1507. Any officer who is nominated to a high ex-grade by the provisions of the preceding section shall be promoted, notwithstanding the number of said grade may be full; but no further promotions shall take place in that gi-ade, except for like cause, until the number is reduced -to tíiat provided by law. ”

The claimant’s contention is that those sections of the statute create, in certain contingencies, additional offices which the President in the exercise of his constitutional power may fill “during the recess of the Senate” by the advancement of any officer of the Navy, “not exceeding thirty numbers in rank, for eminent and conspicuous conduct in battle or extraordi-naiy heroism.”

The defendant’s contention is that such advancement can only be made by the President “by and with the advice and consent of the Senate,” and that consequently no vacancy existed “during the recess of the Senate” which could be filled by the Pi-esident in the exercise of his constitutional power.

The first question presented, therefore,-is: Was there a vacancy which could be filled by the President by commission “ during the recess of the Senate? ”

It is the constitutional right of the President, as the chief executive officer of the Government, “to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” (Constitution, Art. II, sec. 2.) That right can not bo abridged by the Congress, and hence sections 1506 and 1507 must be construed, if that can be done, in consonance therewith.

It is conceded by the claimant that there was no .vacancy to which the claimant could be appointed “ during the recess of the Senate,” unless the act of the President in advancing Commodore Schley under the provisions of the statutes cited operated to create one in the grade of rear-admiral. That is to say, unless by the act of the President in so advancing Commodore Schley, the office to which he was so advanced was thereby contemporaneously created, and the office of commodore vacated. If this be the correct view, then, whenever the President decides to advance an officer of the Navy during the recess of the Senate “for eminent and conspicuous conduct in battle or extraordinary heroism,” under those section's such act on behalf of the President will operate to create the office which, by the same act, he fills by granting a commission which shall expire at the end of the next session of the Congress.

Would that be the exercise of power conferred by the Constitution in respect to filling “vacancies that may happen during the recess of the Senate?” ■ We think not; and this was the view of the Attorney-General respecting the status of an officer of the Navy who had been similarly advanced to a supposed vacancy caused by the advancement of Commodore Sampson, where he said:

“But this does not confer upon the President the power to create such vacancies. ' Such power as he has to create a vacancy, by the removal of an incumbent, is derived from his general power of removal, incident to his power to appoint, or from acts of Congress. And, I have no doubt that, except as restricted by the Constitution or act of Congress, the President has ample power of removal, as incident to his power to appoint officers.” (Ex parte Hennen, 13 Peters, 259; McElrath v. United States, 102 U. S., 426, and Blake v. United States, 113 U. S., 227.)
“That he may remove an officer by the mere appointment of another officer in his place is settled by the two cases last cited. Yet, thq exercise of this power may be regulated or restricted by the Constitution, and, so far at least as this case is concerned, by Congress. And this has been done here by both — by the Constitution, which requires the consent of the Senate to the appointment, the only thing which, in this case, could operate as a removal from office or to create a vacancy, and by the statute, which forbids such a change .of rank by the President alone, as would be this advancement of these officers.” (23 Op. A. G., 30.)

The language of the Constitution “to fill up all vacancies that may happen during the recess of the Senate ” necessarily implies, not only the previous existence of an office, but that “ during the recess of the Senate ” a vacancy happened therein which could be filled by the President by commission to expire at the end of the next session of the Congress.

Furthermore, the latter clause of section 1506 provides in express terms that “ the rank of officers shall not be changed except'in accordance with the provisions of existing law and by and with the advice and consent of the Senate.” That the advancement of naval officers under section 1506 was intended to be only with the advice and consent of the Senate is made more clear by section 1507, wherein it is provided that “any officer who is nominated to a higher grade, by the provisions of the preceding section, shall be promoted, notwithstanding the number of said grade ■may be full.”

When, therefore, we consider both sections, we note that the advancement of naval officers “for eminent and conspicuous conduct in battle” can only be made by the President “ by and with the advice and consent of the Senate.” If we are correct in this, it follows that confirmation by the Senate will not operate retro active^ so as to validate an unauthorized act.

At the time of the recess appointment, the number of rear-admirals authorized by Revised Statutes, section 1363, was full, and as Commodore Schley could only be advanced by the President, as additional to that grade under section 1506, “by and with the advice and consent of the Senate,” there was no office then in existence to which he could be so advanced; and there being no office, the rule invoked applicable to defacto officers does not apply. This is not a case where the title to the office was defective, as in the case of County of Ralls v. Douglass (105 U. S., 728), and cases in this court cited by the claimant, but it is a case where there was no office, but merely a statute authorizing the creation of an office by the President, by and with the advice and consent of the Senate,- in certain contingencies; and until those contingencies arose, and the joint act of the President and the Senate took place, there was no office, and the case therefore comes within the ruling in the case of Norton v. Shelby County (118 U. S., 425, 441), in this, that unless there existed at the time an office dejure there could be no incumbent defacto.

It will therefore be observed that the difficulty in advancing Commodore Schley under sections 1506 and 1507 during the recess of the Senate was not merely for want of a vacancy in the grade of rear-admiral, but was for the want of an office as well. Hence, at that time he could not be advanced and promoted to be a rear-admiral either de jure or de facto; and that being so, no vacancy was thereby caused in the grade of commodore, without which no vacancies were created by the promotion of those named from the lower grades. In other words, appointments to the grades below that of commodore all depended upon a vacancy in the grade of commodore, and for that reason the promotion of Captain Higginson to the supposed vacancy in the grade of commodore, as well as those to the lower grades, was without constitutional sanction. And as the number of officers authorized by section 1363 in the several grades below that of rear-admiral was also full, the claimant can not be held to have been a defacto officer in the grade of lieutenant-commander while that grade was, at the same time, filléd by an officer de jure, even though he be addressed and recognized by the Department as a lieutenant-commander.

For the reasons we have given we must hold that the ruling of the accounting officers, following the opinion of the Attorney-General, was correct, and the petition is therefore dismissed.  