1. An officer of the army or the navy was, June 20, 1866,
subject to summary dismissal from the service by order of the
President.
2. On the twenty-seventh day of June, 1866, the President
nominated to the Senate A. to be a first lieutenant in the Marine
Corps from the twentieth day of that month,
vice B.
dismissed. The Senate advised and consented to the appointment
agreeably to the nomination, and A. was commissioned July 13, 1866.
Held that such appointment, followed by a commission,
operated to discharge B. from the service as effectually as if he
had been dismissed by the direct order of the President.
3. So much of sec. 5 of the Act of July 13, 1866, 14 Stat. 02,
as provides that
"No officer in the military or naval service shall, in time of
peace, he dismissed from service except upon and in pursuance of
the sentence of a court-martial to that effect or in commutation
thereof,"
did not take effect before Aug. 20, 1866, on which day, in
contemplation of law, the rebellion against the national authority
was suppressed and peace restored.
4. Upon the settlement of his accounts by the accounting
officers of the treasury, B., while announcing that he would not be
concluded thereby, and protesting that the allowance was
insufficient, received it and brought suit in the Court of Claims
to recover the balance claimed.
Held that the United
States is not bound by the settlement, but for any moneys
improperly paid him in pursuance thereof is entitled to
judgment.
5. The provision of the Act of March 3, 1863, 12 Stat. 765
Rev.Stat. sects. 1059-1061, authorizing that court, without the
intervention of a jury, to hear and determine claims against the
government and also any setoff, counterclaim, claim for damages, or
other demand on the part of the government against the claimant
does not violate the Seventh Amendment of the Constitution.
APPEAL from the Court of Claims.
On the 5th of June, 1866, Thomas L. McElrath transmitted to the
Secretary of the Navy his resignation as a first lieutenant in the
Marine Corps. By an official communication from the Navy
Department, dated June 19, 1866, and signed by Mr. Welles, as
Secretary of the Navy, he was notified that the
Page 102 U. S. 427
department declined to accept his resignation, the Secretary
adding, "As you deserted from the
Monogahela on the eve of
her sailing for the West Indies, you are hereby dismissed from the
service from this date." The President, June 27, 1866, nominated to
the Senate for appointment Second Lieutenant George B. Haycock of
the Marine Corps to be a first lieutenant in that corps, from June
20, 1866, "
vice Thomas L. McElrath, dismissed." To that
appointment the Senate gave its advice and consent, and Haycock was
accordingly commissioned, July 13, 1866, to be first lieutenant, on
the active list, from June 20, 1866. Thus matters stood until May
14, 1873, when McElrath made a formal application to the department
for the revocation and annulment of the order of dismissal of June
19, 1866, submitting therewith evidence tending to show that he was
not a deserter, as charged in the order of that date. Pending that
application, he tendered, July 10, 1873, his resignation as a first
lieutenant in the Marine Corps. On the same day, Mr. Robeson, then
Secretary of the Navy, notified him, in writing, that "the order of
June 19, 1866, dismissing you [him] from the service, is hereby
revoked, having been issued under a mistake of facts." The
Secretary added: "You are thus restored to the position which you
held at the date of that order. The resignation which you now
tender is accepted, to take effect this day."
On the eighth day of January, 1874, the claimant was further
notified, in writing, by the Secretary of the Navy, as follows:
"Your dismissal from the Marine Corps as a first lieutenant,
dated 19th of June, 1866, is revoked, and your resignation as a
first lieutenant in that corps, tendered in your letter of the 10th
of July, 1873, is accepted from that date."
Why this second notification was given is not explained, and, in
the view which the Court takes of the case, it is not material to
inquire.
In January, 1874, the claimant made application to the Fourth
Auditor of the Treasury for the settlement of his account as first
lieutenant in the Marine Corps. That officer, upon examination and
settlement of the account, certified to the Second Comptroller that
the sum due to the claimant was $6,106.53, being the amount of the
half-pay and allowances of
Page 102 U. S. 428
a first lieutenant of marines from June 21, 1866, to July 10,
1873, inclusive. The Second Comptroller, having examined the
Auditor's settlement, certified its correctness to the Secretary of
the Navy, who issued his requisition, properly countersigned, upon
the Secretary of the Treasury requesting a warrant in behalf of the
claimant for the amount so ascertained. A warrant was accordingly
issued, and that sum was paid to the claimant, who, at the time he
received it, declared his belief that the sum was not the entire
amount due him, and that he accepted the same under protest, and
should hold himself in no manner concluded as to the remaining sum
claimed to be due him.
All of the foregoing facts, and the further fact that the number
of first lieutenants in the Marine Corps, from June 5, 1866, to
July 10, 1873, was thirty, were known to the Fourth Auditor, the
Comptroller, and the Secretary of the Navy when they respectively
acted upon the claimant's account.
It also appears that, from June 19, 1866, to June 10, 1873, he
was engaged in business in New York, earning $30 per week. In other
words, he earned in private business, when not performing service
in the navy, during the above period, more than $10,000.
The present action is by McElrath to recover from the United
States the balance, nearly $7,000, alleged to be due him on account
of pay and allowances as a first lieutenant in the Marine Corps of
the United States. The government, denying its indebtedness to him
in any sum whatever, set up a counterclaim for the sum of
$6,106.53, which, it contends, was paid to him by the accounting
officers of the Treasury Department without warrant of law. A
judgment was rendered in favor of the United States therefor, and
he appealed.
He assigns for error that the Court of Claims erred in holding:
1. that the order of June 19, 1866, was the order of the President,
and that the latter dismissed him from the Marine Corps from that
date; 2. that he was not entitled to pay and allowance from June
21, 1866, to July 10, 1873; 3. that, in a suit brought in the Court
of Claims against the United States, the latter can recover on a
counterclaim a judgment against a claimant further than is
necessary to defeat his claim; 4. that a counterclaim by the United
States in the
Page 102 U. S. 429
Court of Claims which seeks an affirmative judgment for more
than twenty dollars is not a suit at common law within the meaning
of the Seventh Amendment to the Constitution; and that so much of
sec. 3 of the Act of March 3, 1863, 12 Stat. 765, as purports to
confer on said court power to render such judgment, is not in
violation of the Constitution; and that no part of the proceedings
in this case constituted or belonged to a suit at common law within
that amendment; 5. that the United States under the counterclaim
could recover of the appellant the sum paid to him by the
accounting officers of the treasury as half-pay and allowances for
the period;
viz., $6,106.53.
Page 102 U. S. 435
MR. JUSTICE HARLAN, after stating the case, delivered the
opinion of the court.
The first and second assignments of error proceed upon the
ground that, notwithstanding the order of dismissal of June
Page 102 U. S. 436
19, 1866, and the subsequent appointment, by and with the advice
and consent of the Senate, of Haycock as a first lieutenant in the
Marine Corps
vice McElrath, the latter was never legally
dismissed from the service, but was, in law, a first lieutenant in
that corps during the whole period from June 20, 1866, to July 10,
1873, and as such entitled to full pay and allowances.
In discussing the questions of law involved in this position,
counsel for the claimant starts with these propositions: that the
order of dismissal issued from the Navy Department under the
official signature of Secretary Welles was without authority of
law; that the President alone, at that time, was invested with
power to summarily dismiss from the service a commissioned officer
of the Marine Corps; and that, since the order in question simply
purported to be the act of the Secretary, and did not purport to be
the act of the President, or to have been issued in pursuance of
any previous direction by him given, the presumption cannot be
indulged that the dismissal of Lieutenant McElrath was by order of
the President.
These propositions open up a very broad field of inquiry as to
what exceptions there are to the general rule that the direction of
the President is to be presumed in all instructions and orders
issuing from the proper department concerning executive business,
notwithstanding they may contain no express statement of any
direction from him as to the matters to which such instructions or
orders refer. There are undoubtedly official acts which the
Constitution and laws require to be performed by the President
personally, and the performance of which may not be delegated to
heads of departments, or to other officers in the executive branch
of the government. It is equally true that, as to the vast
multiplicity of matters involved in the administration of the
executive business of the government, it is physically impossible
for the President to give them his personal supervision. Of
necessity, he must, as to such matters, discharge his duty through
the instrumentality or by the agency of others. Whether a
particular act belongs to one or the other of these classes may
sometimes be very difficult to determine, and we shall not attempt
now to lay down any general rule upon the subject. Nor shall we
extend this opinion by any consideration of the question whether
the particular order,
Page 102 U. S. 437
signed by Secretary Welles, should not be presumed to have been
issued by direction of the President. The determination of that
question is not essential to the disposition of this case, since,
if that order should, for the reasons urged by the claimant's
counsel, be deemed a nullity, the nomination and confirmation,
subsequently, of Lieutenant Haycock, followed by his commission, as
a first lieutenant in the Marine Corps in place of Lieutenant
McElrath, as certainly operated, under the law as it then was, to
remove the latter from the service as if he had been dismissed by
direct order of the President under his own signature. This
because, as is conceded, the President, at the time he asked the
advice and consent of the Senate to the appointment of Lieutenant
Haycock in place of Lieutenant McElrath, had the power to dismiss
the latter summarily from the service. That power, if not possessed
by the President in virtue of his constitutional relations to the
army and navy (and as to that question we express no opinion), was
given by an Act of Congress approved July 17, 1862. The seventeenth
section of that statute declared
"That the President of the United States be, and hereby is,
authorized and requested to dismiss and discharge from the military
service, either in the army, navy, marine corps, or volunteer
force, in the United States, any officer, for any cause which, in
his judgment, either renders such officer unsuitable for, or whose
dismissal would promote, the public service."
12 Stat. 599. The message of the President informing the Senate
of the dismissal of Lieutenant McElrath, and the consent of the
Senate to the appointment of Lieutenant Haycock in his stead,
followed by a commission, in due form, clearly invested the latter
with the office which McElrath had held, and gave him from that
time the exclusive right to the pay and allowances attached to that
position.
But we are here met with the suggestion that a vacancy did not
exist, and Lieutenant Haycock's right to the office did not attach
until he received his commission on the thirteenth day of July,
1866, on which day, and from the first moment of that day -- as is
claimed upon the authority of
United States v.
Lapeyre, 17 Wall. 191, and
United States v.
Norton, 97 U. S. 164 -- it
was the law that
"No officer of the
Page 102 U. S. 438
military or naval service shall, in time of peace, be dismissed
from service except upon and in pursuance of the sentence of a
court-martial to that effect or in commutation thereof."
Act of July 13, 1866, 14 Stat. 92. To this suggestion one
obvious answer is that the Act of July 13, 1866, was not, on that
day, in effective operation. That act assumes to control the
President, in the matter of dismissing officers from the naval and
military service, only in time of peace. Its purpose was, upon the
declaration of peace, to suspend the broad power which he exercised
during the recent rebellion, when prompt, vigorous action was often
demanded, to dismiss an officer from the service whenever in his
judgment the public interests would thereby be promoted. But when
was the rebellion suppressed and peace inaugurated? Not until the
twentieth day of August, 1866, on which day the President announced
by proclamation that the insurrection against the national
authority was at an end and that "peace, order, tranquility, and
civil authority" then existed "in and throughout the whole of the
United States of America?" 14 Stat. 814;
United
States v. Anderson, 9 Wall. 71;
The
Protector, 12 Wall. 702. The effect of that
proclamation as fixing the time when the rebellion closed was
distinctly recognized by Congress in the Act of March 2, 1867, 14
Stat. 422, which declared that the previous Act of June 20, 1864,
13
id. 144, increasing the pay of soldiers in the army,
should be continued in full force and effect for three years "after
the close of the rebellion, as announced by the President of the
United States, by proclamation, bearing date Aug. 20, 1866." Since
peace, in contemplation of law, could not exist while rebellion
against the national government remained unsuppressed, the close of
the rebellion and the complete restoration of the national
authority, as announced by the President and recognized by
Congress, must be accepted as the beginning of the "time of peace,"
during which the President was deprived of the power of summarily
dismissing officers from the military and naval service.
It results that neither when Lieutenant Haycock was nominated to
and confirmed by the Senate nor when he was commissioned in place
of McElrath, was the sentence of a court-martial, or any
commutation thereof, required as a condition
Page 102 U. S. 439
precedent to the exercise by the President of the power of
dismissal or to his appointment of an officer in the service by and
with the advice and consent of the Senate.
It also necessarily follows from what has been said that the
orders which issued from the Navy Department under the signature of
Secretary Robeson in 1873 and 1874, even if issued by direction of
the President, were inoperative for the purpose of reinstating the
appellant in his position as a first lieutenant in the Marine
Corps. The position to which it was attempted to restore him had,
as we have seen, been previously filled by constitutional
appointment, and by the laws then in force, the incumbent could
neither be displaced nor dismissed, except "upon and in pursuance
of the sentence of a court-martial to that effect, or in
commutation thereof." The attempted restoration was ineffectual for
the additional and equally conclusive reason that the complement of
first lieutenants in the Marine Corps was at that time full. The
order assuming to restore him was, of course, for the reasons
already given, equally inoperative to entitle him to pay and
allowances for any portion of the period covered by the account
settled by the officers of the treasury. The requisition upon the
Secretary of the Treasury by the Secretary of the Navy was
consequently without warrant of law. During the period for which
the appellant was allowed half-pay, he was not an officer in the
service, and the allowance to him of pay after the appointment of
his successor was illegal.
We come now to inquire whether the Court of Claims erred in
awarding judgment against the appellant for the amount paid to him
out of the Treasury of the United States upon the settlement of his
accounts.
Upon this branch of the case, counsel for the claimant contends
that so much of the Act of March 3, 1863, as invests the Court of
Claims with power to render judgment in favor of the United States
against a claimant is in violation of the Seventh Amendment of the
national Constitution, which provides that in suits at common law,
where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved.
That section, referring to the trial of causes in which the
Page 102 U. S. 440
government may plead against the claimant any setoff,
counterclaim, claim for damages, or other demand, provides that the
court shall hear and determine such claim and demand both for and
against the government and claimant, and if, upon the whole case,
the court finds that the claimant is indebted to the government, it
"shall render judgment to that effect, and such judgment shall be
final, with the right of appeal, as in other cases provided for by
law." There is nothing in these provisions which violates either
the letter or spirit of the Seventh Amendment. Suits against the
government in the Court of Claims, whether reference be had to the
claimant's demand, or to the defense, or to any setoff or
counterclaim which the government may assert are not controlled by
the Seventh Amendment. They are not suits at common law within its
true meaning. The government cannot be sued except with its own
consent. It can declare in what court it may be sued and prescribe
the forms of pleading and the rules of practice to be observed in
such suits. It may restrict the jurisdiction of the court to a
consideration of only certain classes of claims against the United
States. Congress, by the act in question, informs the claimant that
if he avails himself of the privilege of suing the government in
the special court organized for that purpose, he may be met with a
setoff, counterclaim, or other demand of the government, upon which
judgment may go against him, without the intervention of a jury, if
the court, upon the whole case, is of opinion that the government
is entitled to such judgment. If the claimant avails himself of the
privilege thus granted, he must do so subject to the conditions
annexed by the government to the exercise of the privilege. Nothing
more need be said on this subject.
The remaining objection against the judgment in favor of the
government upon its counterclaim deserves notice at our hands. It
is, in substance, this: that the Secretary of the Navy, the Second
Comptroller, and the Fourth Auditor having examined the claim of
Lieutenant McElrath, and, with full knowledge of all the facts,
decided that he was legally entitled to half-pay and allowances for
the period in question, the amount paid him cannot be reclaimed
because of the subsequent discovery that, in point of law, he was
not an officer in
Page 102 U. S. 441
the Marine Corps during the period for which he was allowed such
half-pay. This view is controverted by the Attorney General, who
contends that the right of the government to reclaim money paid out
of the Treasury under a mere mistake of law is not subject to the
same limitations which, under like circumstances, would be applied
between individuals. The Attorney General goes even further, and
insists that whether the mistake be one of fact or of law, or of
both, the government may always recover from third persons money
improperly paid out of the public treasury by its accounting
officers not in pursuance of previous judicial determination.
Whether the one or the other of these views, in the broad terms in
which they are announced, is correct we will not now inquire. For
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 the present case.
Had the appellant rested upon the settlement of his account by
the proper officers 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, to demand an additional
sum upon the basis of full pay and allowances from June 20, 1866,
to July 10, 1873.
This suit itself invites the court to go behind that settlement,
to reexamine all the questions arising out of the appellant's claim
for full pay and allowances, and to correct the error which he
insists was committed to his prejudice by the accounting officers
of the government. The government, declining to plead the
settlement of 1874 in bar of the suit, meets him upon his own
chosen ground, and, insisting that its officers, misapprehending
the law, paid to him out of the Treasury money to which he was not
legally entitled, asks, as we think it may rightfully do, judgment
for the amount thus improperly paid to him.
Judgment affirmed.
