It was the purpose of Congress by the 12th and 13th sections of
the Army Appropriation Act of July 15, 1870, 16 Stat. 318, 319, to
reduce the number of officers in the army, and to that end § 11
authorized the President to eliminate from it officers who were
unfit for the discharge of their duties by reason of a cause which
had no meritorious claim upon the consideration of the government,
while § 12 made a general grant of power to the President to make
the reduction by selecting the best, and mustering out the residue,
and the President, being empowered to proceed under either grant,
could commence proceedings under § 11, and abandon them, and then
proceed under § 12.
The 12th section of the Army Appropriation Act of July 15, 1870,
16 Stat. 318, authorized the President to fill vacancies in the
army then existing, or which might occur prior to the 1st day of
January then next. The 1st day of January, 1871, fell on Sunday.
that, in the exercise of the power thus conferred, an
order made on the second day of January, 1871, was valid.
The executive action, under the Army Appropriation Act of July
15, 1870, reducing the army, was recognized by Congress in 18 Stat.
497, c. 159, § 2; 20 Stat. 35, c. 50; 20 Stat. 321, c. 100; 20
Stat. 354, c. 175; 21 Stat. 510, c. 151, and was thereby validated,
even if otherwise invalid.
The Court stated the case in its opinion as follows:
This is an appeal from a judgment of the Court of Claims, 24
Ct.Cl. 230. Appellant brought his action in that court to recover
not for services actually rendered, but for sixteen years' salary
as first lieutenant, claiming that this was due by reason of an
alleged illegality in the order of January 2, 1871, discharging him
from the service. That order is therefore the matter of
Page 133 U. S. 300
In 1869 and 1870, acts of Congress were passed looking to a
reduction in the army, and the order in question was made in
pursuance of the last of these acts. The intent of Congress is
obvious, and all proceedings had to carry such intent into effect
should be liberally construed, and not subjected to any such
technical limitations as will thwart such obvious purpose. The Act
of July 13, 1866, 14 Stat. 92, has no bearing on the case at bar,
for, as held by this Court in Blake v. United States,
103 U. S. 227
simply placed a limitation on the personal power of the President,
as commander in chief, in time of peace, to dismiss from the
service. It was not intended to have, as it could not have, any
effect on the power of a subsequent Congress to reduce the army by
appropriate legislation in respect to either its officers or
The Act of March 3, 1869, 15 Stat. 315, §§ 2-7, inclusive, is
significant only as indicating the intent of Congress that the army
should be reduced, for the method of reduction there provided is
simply the cessation of enlistments and appointments. Evidently the
reduction by this method was not as rapid as was desired, for on
July 15, 1870, an act was passed making provision for a direct
reduction, 16 Stat. 315. Section 2 authorizes and directs the
President to reduce, on or before the 1st day of July, 1871, the
number of enlisted men to 30,000. With respect to the officers,
there were several sections aimed at reduction, some abolishing
certain offices, others providing that no appointments to
particular offices should be made until the number of incumbents
was reduced below a prescribed limit. In addition, there were four
provisions having general application. Section 3 authorized the
President to grant an honorable discharge to all officers applying
on or before the 1st of January, 1871, and giving the officers so
discharged an additional year's pay and allowances. Sections 4 and
5 increased the retired list to three hundred and authorized the
President to place on such list, on their own application, officers
with thirty years' service. The other provisions are found in
sections 11 and 12, which, as being the sections specially bearing
on the questions in this case, are quoted, as follows:
Page 133 U. S. 301
"SEC. 11. And be it further enacted
that the General of
the Army and commanding officers of the several military
departments of the army shall, as soon as practicable after the
passage of this act, forward to the Secretary of War a list of
officers serving in their respective commands deemed by them unfit
for the proper discharge of their duties, from any cause except
injuries incurred or disease contracted in the line of their duty,
setting forth specifically in each case the cause of such
unfitness. The Secretary of War is hereby authorized and directed
to constitute a board to consist of one major general, one
brigadier general, and three colonels, three of the said officers
to be selected from among those appointed to the regular army on
account of distinguished services in the volunteer force during the
late war; and, on recommendation of such board, the President shall
muster out of the service any of the said officers so reported,
with one year's pay; but such muster-out shall not be ordered
without allowing such officer a hearing before such board to show
cause against it."
"SEC. 12. And be it further enacted
that the President
is hereby authorized to transfer officers from the regiments of
cavalry, artillery, and infantry to the list of supernumeraries,
and all vacancies now existing, or which may occur prior to the
first day of January next, in the cavalry, artillery, or infantry,
by reason of such transfer, or from other causes, shall be filled
in due proportion by the supernumerary officers, having reference
to rank, seniority, and fitness, as provided in existing law
regulating promotions in the army. And if any supernumerary
officers shall remain after the first day of January next, they
shall be honorably mustered out of the service with one year's pay
and allowances, provided
that vacancies now existing in
the grade of second lieutenants, or which may occur prior to said
date, may be filled by the assignment of supernumerary first
lieutenants, or officers of higher grades, who, when so assigned,
shall rank as second lieutenants, provided such officer shall
prefer to be assigned, instead of being mustered out under the
provisions of this section, and officers so assigned shall take
rank from the date of their original entry into the service,
and provided further
Page 133 U. S. 302
that no chaplain be appointed to posts or regiments until those
on waiting orders are assigned."
It appears from the findings that on October 27, 1870, the
claimant, who was on active duty at Fort Bidwell, California, was
reported by the department commander, Lieutenant Colonel George
Crook, as unfit for the proper discharge of his duties from other
causes than injuries incurred or disease contracted in the line of
his duties. His name was submitted to the board organized in
pursuance of the eleventh section, quoted supra.
17th of November, the board requested that he, with others named,
be given a hearing as required by that section. On November 19, the
adjutant general informed the board that the stations of these
officers were so remote that it was impossible for it to consider
their cases, and that the Secretary of War had directed that they
be not ordered to appear. In compliance with this order, on
November 22, the papers in these cases were returned to the
Secretary of War -- in other words, the proceedings initiated under
section 11 were abandoned. No inquiry was ever made as to the
alleged unfitness for the proper discharge of his duties from
causes other than injuries incurred or disease contracted in the
line of duty. It appears further that on January 2, 1871, January
1st being Sunday, an order was issued by the Secretary of War
which, so far as it affects this claimant, reads as follows:
"(General Orders, No. 1)"
"WAR DEPARTMENT, ADJUTANT GENERAL'S OFFICE"
"WASHINGTON, January 2, 1871"
"By direction of the President, the following officers of the
army are transferred, assigned, or mustered out of the service, to
take effect from the 1st instant:"
"I. Transfers to the list of supernumeraries, under § 12 of
the act approved July 15, 1870.
"* * * *"
"First Lieutenant Harlow L. Street, first cavalry."
"* * * *"
Page 133 U. S. 303
"II. Transfers and assignments to fill vacancies to the
"* * * *"
"First Lieutenant Max Wessendorff, unassigned, to the first
cavalry, vice Street, transferred to the list of
"* * * *"
"III. Unassigned officers whose commissions have expired
under section 12 of the Act of Congress approved July 15, 1870, and
who are honorably mustered out of the service.
"* * * *"
"First Lieutenant Harlow L. Street."
"* * * *"
"By order of the Secretary of War:"
"E. D. TOWNSEND"
Subsequently, on September 18, 1871, he received the year's pay
provided for in § 12, and still later, on the 18th of February,
1881, he was paid the sum of $117.95 upon Treasury settlement, on
account of some errors in the previous payment.
Page 133 U. S. 304
MR. JUSTICE BREWER delivered the opinion of the Court.
The principal contention of the appellant is that, proceedings
having been commenced under section 11, they should have been
carried to a close, and that he could be mustered out of the
service only upon an adjudication by that board of
Page 133 U. S. 305
unfitness. But this view cannot be sustained. It arises from a
misconception of the scope of the two sections. The first aims to
eliminate from the army those officers who are unfit for the
discharge of their duties and whose unfitness springs from no cause
of meritorious claim upon the consideration of the government,
while the other is a grant of general power to the President to
reduce the number of officers by selecting the best and mustering
out the residue. It is comprehensive in its scope, and not at all
dependent upon the failure to accomplish the requisite reduction
through proceedings under section 11. It is in no manner
subordinated to or dependent upon that section, and grants a power
which can be exercised irrespective of all other proceedings.
The appellant had no vested right to an adjudication upon the
matter reported against him. In the absence of express limitation,
the government may always withdraw charges which it has made. There
is nothing in the words of either section, nothing in the scope and
purpose of their provisions, or in any general rule of law, which
prevented the government from abandoning the proceedings initiated
under section 11 and proceeding to muster out the appellant under
The other proposition of the appellant is that the authority
given by section 12 was not strictly pursued. While it is conceded
that the President might add to or take from the list of
supernumerary officers, it is urged that he could muster out only
those who were supernumerary officers at the close of the 1st day
of January, 1871, the language being: "And, if any supernumerary
officers shall remain after the first day of January next, they
shall be honorably mustered out," etc., whereas, by the order
actually made, he was transferred to the supernumerary list only on
the second day of January. Concede the irregularity, and it is not
such as vitiates the order. The purpose of the act is obvious. The
direction of Congress was clear and distinct, and it would be
strange if any executive officer could, by irregularity in
executing the mandate of Congress, thwart this purpose. The matter
of time was not vital. The purpose was reduction, and a reduction
to be accomplished by selecting the best and mustering out the
Page 133 U. S. 306
and while Congress prescribed the time within which this mandate
was to be executed, there is neither in terms nor by implication
any subordination of the power to the matter of time.
Again, it must be noticed that the 1st day of January was Sunday
-- that is, a dies non
-- and a power that may be
exercised up to and including a given day of the month may
generally, when that day happens to be Sunday, be exercised on the
succeeding day. So that it is a matter worthy at least of
consideration whether the power was not exercised within the very
limits of time prescribed by the act.
It is well in this respect to compare this section with section
3. By that, the President was authorized to honorably discharge,
with pay and allowances, officers who should apply on or before
January 1, 1871. By that section, a reduction, through the
voluntary act of army officers, was contemplated, and such
voluntary action was authorized and invited to be had on the 1st
day of January. While section 12 was not dependent upon section 3,
yet it is obvious that action so voluntarily taken by any army
officer would limit the amount of enforced reduction, and to that
extent relieve the President from embarrassment in the selection
authorized by section 12, and there was a propriety, if nothing
else, in waiting until the close of the 1st day of January before
exercising the power of selection and mustering out.
It will also be noticed that section 12 places no limitation on
the time within which the President is authorized to transfer
officers to the list of supernumeraries. If voluntary resignation
by the close of the 1st day of January made sufficient reduction,
there would be no necessity of transferring any to the list of
supernumeraries, and it was only the supernumerary officers
remaining after the 1st of January -- that is, the officers then
found not to be needed for the service -- who were to be mustered
out under that section. There was therefore no requirement that the
President should transfer to the supernumerary list before the
close of the 1st of January. The number which it was necessary to
transfer could not be absolutely determined until the close of that
day, and it was only those who at the close of that day were not
Page 133 U. S. 307
in the service that the President could muster out. All these
matters justified the action of the President taken on the second
of January, and, if they do not establish that it was in full and
literal compliance with the exact provisions of section 12, they
certainly leave so slight a departure as scarcely to be worthy of
mention. It is certainly no such deviation from the prescribed
course as to vitiate the order, and thus nullify the express
direction of Congress.
But we are not limited to this. Full power of legislation in the
matter of increase and reduction of the army is with Congress. It
prescribed in this act the proceedings by which that reduction was
to be accomplished. In pursuance of that act, certain proceedings
were had. The power which can direct what proceedings shall be had
can approve and make valid any proceedings which are actually
taken. The power which can give authority to act can ratify any act
that is taken, and generally legislative recognition of an act or a
corporation validates the act or the corporation, although neither
one nor the other may have had full prior legal authority.
Comanche County v. Lewis, ante, 133 U. S. 198
There was but one order issued under section 12 for the
mustering out of supernumerary officers. In that order were many
names besides that of the appellant, and the Act of March 3, 1875,
18 Stat. 497, § 2, refers to "any person who was mustered out as a
supernumerary officer of the army, with one year's pay and
allowances" under the act of 1870, that we have been considering.
Further, on April 8, 1878, 20 Stat. 35, 25th of February, 1879, 2o
Stat. 321, March 3, 1879, 20 Stat. 354, and March 3, 1881, 21 Stat.
510, acts were severally passed authorizing the restoration to the
army of John A. Darling, Michael O'Brien, Philip W. Stanhope, and
Redmond Tully, who had been mustered out by this order of January
2, 1871, and those acts all assume the validity of that order.
There has been thus full legislative recognition of its validity.
It is too late, therefore, now to inquire as to whether it was in
technical compliance with the procedure prescribed by the act of
We see no errors in the ruling of the Court of Claims, and its