The decision of the President confirming or disapproving the
sentence of a general court-martial in time of peace extending to
the loss of life or the dismission of a commissioned officer, or in
time of peace or war respecting a general officer, under the
provisions of the 65th Article of War, is a judicial act to be done
by him personally, and is not an official act presumptively his,
but it need not be attested by his sign manual in order to be
effectual.
Runkle v. United States, 122 U.
S. 543, distinguished from this case.
Frank A. Page filed his petition in the Court of Claims on the
31st day of August, 1887, stating:
"I. That he is a citizen of the United States, and a resident of
the District of Columbia."
"II. That on the 18th day of January, A.D. 1865, he was duly
appointed and commissioned as a second lieutenant in the veteran
reserve corps of the volunteer Army of the United States, and
served as such officer until the 20th day of September, A.D. 1866,
when he was honorably mustered out of such military service of the
United States."
"III. That on the 3d day of October, A.D. 1866, he was duly
appointed and commissioned as a second lieutenant in the
forty-fourth regiment of infantry of the Army of the United States,
to rank as such from the 28th day of July, A.D. 1866, and that he
accepted such appointment on the 3d day of October, 1866."
"IV. That he served in said capacity until the 3d day of August,
1870, when he was transferred to the tenth infantry."
"V. That he continued to serve in said last-named
Page 137 U. S. 674
regiment until the 22d day of September, 1871, when, by order of
the President, he was, upon the recommendation of the retiring
board of the U.S. Army, retired from active service, and was placed
upon the retired list of the Army as such second lieutenant."
"VI. That from said last-mentioned date to the date of the
filing of this petition, he has ever since remained a second
lieutenant upon the said retired list, subject to all the
regulations and orders governing officers upon the retired list;
yet, notwithstanding, ever since the 27th day of May, 1874, he has
been refused all pay and emoluments to which he is lawfully
entitled, by reason, as alleged, of a certain order issued by the
Adjutant General of the Army, dated, 'War Department, Adjutant
General's Office, May 27, 1874,' and purporting to be General
Court-Martial Orders, No. 42, wherein and whereby, by paragraph 3
of said order, it is asserted that your petitioner ceases to be an
officer of the Army from the date of said order, by reason whereof
the proper officers of the Pay Department of the Army have refused
to pay to your petitioner the pay and emoluments to which he is
lawfully entitled."
"VII. Your petitioner avers that the said order, so far as the
same purports to dismiss him from the Army of the United States, or
to deprive him of his said office, is null and void, and that he is
entitled to receive his lawful pay, and to have and retain the said
office, notwithstanding the said order; that the court-martial
proceedings upon which the said order was predicated were never
submitted to or approved by the President of the United States, and
without such approval no power existed in the Adjutant General or
the Secretary of War to deprive him of his commission or his lawful
pay as such second lieutenant."
"And your petitioner claims the sum of seventeen thousand eight
hundred and thirty-five dollars and sixty cents ($17,835.60) as and
for his pay as such second lieutenant for the period from the 28th
day of May, 1874, to the 30th day of June, 1887."
Petitioner subsequently departed this life testate, and the suit
was revived in favor of Sally E. Page, as executrix, and, by leave
of court, she amended the petition "so as to claim
Page 137 U. S. 675
pay for said deceased as second lieutenant for the period from
the 28th day of May, 1874, to the 12th day of October, 1889, being
the sum of $20,816.33."
The findings of fact and conclusion of law of the Court of
Claims were as follows:
"
Findings of Fact"
"I. On January 18, 1865, the claimant was mustered in as a
second lieutenant in the veteran reserve corps of volunteers, and
served as such till September 20, 1866, when he was honorably
mustered out."
"October 3, 1866, he was appointed second lieutenant in the
forty-fourth regiment of infantry, U.S. Army, and accepted the
appointment the same day."
"August 3, 1870, he was transferred to the tenth regiment of
infantry. September 29, 1871, by order of the President, he was
retired from active service, and placed on the retired list of the
Army, on account of wounds received in battle,
i.e., the
loss of his right arm."
"II. April 29, 1874, a court-martial was convened at New York
City, by virtue of Special Orders No. 73, dated April 7, 1874,
Headquarters Military Division of the Atlantic, for the trial of
Second Lieutenant Frank A. Page (retired.) Before this
Court-martial Lieut. Page was arraigned and tried on the following
charges and specifications."
"[Here follow three charges, there being one specification under
charge I, one specification under charge II, and three
specifications under charge III. To these charges and
specifications the accused pleaded not guilty. The court found him
guilty of the specification under charge I, excepting as to certain
words, for which it substituted others, but not guilty of the
charge; guilty of charge II and the specification; guilty of charge
III, and of the second and third specifications thereunder, and
guilty of the first specification, excepting as to certain words,
and as to those not guilty. The sentence was, 'to be dismissed the
service of the United States.' The charges, specifications,
findings, and sentence are set forth at length in Finding II of the
Court of Claims.] "
Page 137 U. S. 676
"The proceedings, findings, and sentence were transmitted to the
Secretary of War, who wrote upon the record the following order,
viz.:"
"War Department"
"Washington City, May 27, 1874"
"In conformity with the 65th of the Rules and Articles of War,
the proceedings of the general court-martial in the foregoing case
have been forwarded to the Secretary of War, and by him submitted
to the President."
"The proceedings and the findings upon the second charge and
specification, and upon the third charge under its second and third
specifications, are approved."
"With regard to the other findings, the remarks noted by Major
General Hancock, who convened the court, are concurred in as
follows:"
" The finding to the first specification is not approved. The
sale of Lieutenant Page's pay accounts and right of pay to the
Piedmont and Arlington Life Insurance Company is not sustained by
the evidence. The transaction was unquestionably a pledge as
collateral security; but, the court having found that it was a
sale, it is difficult to account for the rest of the finding to
this specification, which describes the subsequent presentation of
a claim against the United States for the same pay as false and
fraudulent, although it acquits Lieutenant Page of knowing that it
was such."
" In order to constitute fraud, there must be a knowledge that
the property belongs to another, and a design to deprive him of it.
If these are wanting, it is not fraud. So the word 'false,' used in
this connection, implies an intent to cheat or defraud. Moreover,
if the transaction with the Piedmont and Arlington Life Insurance
Company was a sale, as the court found it to be, how could the
accused, knowing that he had made such a sale, present a claim for
the same pay without knowing that it was false and fraudulent? By
its finding to the specification, the court convicts the accused of
presenting a claim against the United States for his pay which was
false and fraudulent, and yet acquits him of the charge of
'presenting
Page 137 U. S. 677
for payment a false and fraudulent claim against the United
States.' The finding to the first charge is therefore likewise
disapproved."
" Again, having, by its finding to the specification of the 1st
charge, characterized the presenting of a claim for pay as false
and fraudulent, the court, by its finding to the 1st specification
of the 3d charge, say that he did not do it 'fraudulently and
dishonorably,' nor 'knowing that he had no right or property in
said claim or payment,' and this notwithstanding that he is by the
same finding found guilty of 'defrauding the United States.'"
" The finding to this specification, however, convicts the
accused of the facts upon which it is based."
"The sentence is approved."
"Second Lieut. Frank A. Page (retired) accordingly ceases to be
an officer of the Army from the date of this order."
"WM. W. BELKNAP,
Secretary of War"
"The said secretary also issued, May 27, 1874, "
General Court-Martial Order No. 42, announcing the sentence of
the court-martial, and that "Second Lieutenant Frank A. Page
(retired) ceases to be an officer of the Army from the date of this
order." From the date of this order, the claimant's name has not
been borne on the Army register, and he has received no pay as an
officer of the Army since that time.
"
Conclusions of Law"
"Upon the foregoing facts, the court determines that the
claimant is entitled to recover the sum of $11,572.75; that amount
being the sum due the decedent within the statute of limitation of
six years before the commencement of the suit."
Judgment was rendered in favor of the claimant accordingly, and
the case brought to this Court by appeal.
Page 137 U. S. 678
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
It is contended that the sentence of dismissal was a nullity
because it does not sufficiently appear from the record of the
court-martial proceedings, and the endorsements thereon, that the
findings and sentence were approved by the President.
The 65th Article of War, Act of April 10, 1806, 2 Stat. 367, c.
20, which was in force at the time of these proceedings,
provided:
"Any general officer commanding an army, or colonel commanding a
separate department, may appoint general courts-martial whenever
necessary. But no sentence of a court-martial shall be carried into
execution until after the whole proceedings shall have been laid
before the officer ordering the same, or the officer commanding the
troops for the time being; neither shall any sentence of a general
court-martial, in time of peace, extending to the loss of life or
the dismission of a commissioned officer, or which shall, either in
time of peace or war, respect a general officer, be carried into
execution until after the whole proceedings shall have been
transmitted to the Secretary of War, to be laid before the
President of the United States for his confirmation or disapproval
and orders in the case. All other sentences may be confirmed by the
officer ordering the court to assemble, or the commanding officer,
for the time being, as the case may be."
Undoubtedly the action required of the President under this
article is judicial action. He decides personally, and the judgment
is his own personal judgment, and not an official act presumptively
his. But that judgment need not be attested by his sign manual in
order to be effectual. This was so held by Attorney General Wirt (2
Opinions Attys.Gen. 67), Attorney General Cushing (7 Opinions
Attys.Gen. 473), and Attorney General Devens (15 Opinions
Attys.Gen. 290), and in the opinion of the latter, numerous
instances of the attestation of the President's determination by
the Secretary of War are given. It is argued that the President was
required by paragraph
Page 137 U. S. 679
896 of the Army regulations of 1863, then in force, to affix his
signature to the statement of his decision. That paragraph
provided:
"The judge advocate shall transmit the proceedings, without
delay, to the officer having authority to confirm the sentence, who
shall state at the end of the proceedings in each case, his
decision and orders thereon."
But the next paragraph, 897, read:
"The original proceedings of all general courts-martial, after
the decision on them of the reviewing authority, and all
proceedings that require the decision of the President under the
65th and 89th Articles of War, and copies of all orders confirming
or disapproving or remitting the sentences of courts-martial, and
all official communications for the Judge Advocate of the Army,
will be addressed to 'The Adjutant-General of the Army, War
Department,' marked on the cover, 'Judge Advocate.'"
This provision, as is pointed out by Attorney General Devens (15
Opinions Attys.Gen. 292),
"shows that paragraph 896 was intended to embrace proceedings
other than those requiring the decision of the President -- namely,
proceedings which may be confirmed by the officer who ordered the
court to assemble, or the commanding officer for the time being, as
the case may be."
And the Attorney General concludes that
"In the case of the confirmation of a sentence of dismissal by a
court-martial, no formality appears to be prescribed by law for
attesting the determination of the President, and as, in cases of
that sort, the attestation of such determination by a written
statement, signed by the Secretary of War, is in accordance with
long usage, that mode of attesting the President's action
confirming a sentence of dismissal is to be considered as
sufficient."
We are satisfied that this view is correct.
Since, therefore, it appeared by the order of the Secretary of
War, written upon the record of the court-martial in controversy,
that the proceedings had "been forwarded to the Secretary of War,
and by him submitted to the President," and that the proceedings
and findings upon certain charges and specifications were approved,
and that the sentence was approved, the only possible conclusion to
be drawn from such statement is that the approval was by the
President, in whom
Page 137 U. S. 680
alone was reposed the authority to act. The Secretary of War
declared that he had submitted the proceedings in conformity with
the sixty-fifth of the rules and articles of war, and the
sixty-fifth article required the whole proceedings to be laid
before the President for his confirmation or disapproval and orders
in the case. By what process of reasoning can the conclusion be
justified that although these proceedings were laid before the
President for his confirmation or disapproval, yet the findings and
sentence were approved by someone else who had no authority to act
in the premises? On the contrary, where the record discloses that
the proceedings have been laid before the President for his orders
in the case, the orders subsequently issued thereon are presumed to
be his, and not those of the secretary by whom they are
authenticated, and this must be the result here, where the approval
follows the submission in the same order.
In
Runkle v. United States, 122 U.
S. 543, the record failed to show the vital fact of the
submission of the proceedings to the President. The findings of the
Court of Claims in that case upon this point were that the
proceedings, findings, and sentence of the court-martial were
transmitted to the Secretary of War, who wrote upon the report that
such proceedings, findings, and sentence were approved. But it was
not found, nor did the Secretary's endorsement show, that the whole
proceedings had been submitted to the President. The secretary did
indeed conclude his order with the statement that in view of the
unanimous recommendation by the members of the court and the
previous good character of the accused, and in consideration of
evidence by affidavit as to his physical condition, presented to
the War Department since the trial, and credible representations as
to his inability to pay the fine imposed, the President was pleased
to remit all of the sentence except so much thereof as directed
cashiering; but this Court held that the order was capable of
division into two separate parts, one relating to the approval of
the proceedings and sentence and the other to the executive
clemency which was invoked and exercised, and that it was only in
relation to the latter that the President seemed to have exercised
a personal
Page 137 U. S. 681
power under the Constitution -- the power, namely, of granting
pardons -- while the former indicated on its face departmental
action only. And this conclusion was fortified, in the judgment of
court, by the order of President Hayes stating that the record of
official action showed that the approval of the proceedings of the
court was by the petition to President Grant on the day petition to
President Grant on the day the order cashiering him was issued
averring that the proceedings had not been approved by the
President; that this petition was referred to the Judge Advocate
General for review and report, and that this report was made, and
by which order President Hayes, taking up the matter as unfinished
business, and acting as though the proceedings had never been
approved, disapproved of the same. "Under such circumstances," said
Mr. Chief Justice Waite for the Court,
"we cannot say it positively and distinctly appears that the
proceedings of the court-martial have ever in fact been approved or
confirmed, in whole or in part, by the President of the United
States, as the articles of war required before the sentence could
be carried into execution."
And he closed the opinion in these words:
"Such being our view of the case, it is unnecessary to consider
any of the other questions which were referred to the Court of
Claims. Neither do we decide what the precise form of an order of
the President approving the proceedings and sentence of a
court-martial should be, nor that his own signature must be affixed
thereto. But we are clearly of opinion that it will not be
sufficient unless it is authenticated in a way to show otherwise
than argumentatively that it is the result of the judgment of the
President himself, and that it is not a mere departmental order
which might or might not have attracted his personal attention. The
fact that the order was his own should not be left to inference
only."
Inasmuch as it did not affirmatively appear that the whole
proceedings had been laid before the President -- and it was argued
that this must have been so because of the exercise of executive
clemency, though the latter was declared to have been influenced by
matters subsequent to the trial -- it was thought that the order of
approval could not be presumed to
Page 137 U. S. 682
have been made by the President upon the strength of an
inference drawn from the remission of a part of the sentence. The
inference that the President had personally acted could, indeed, be
properly drawn from the substantive fact of the submission of the
proceedings to him, if that had appeared, but presumption could not
supply that fact, and then a presumption upon that presumption be
availed of to make out that the approval was the President's
personal act. This, as the Chief Justice remarked, would leave the
fact that the order was his own to inference only.
The judgment of the Court of Claims is reversed, and the
cause remanded with directions to dismiss the petition.