1. The President has the power to supersede or remove an officer
of the army or the navy by the appointment, by and with the advice
and consent of the Senate, of his successor.
2. It was not the purpose of the fifth section of the Act of
July 13, 1806, c. 176, 12 Stat. 92, to withdraw that power.
This suit was instituted in the Court of Claims by Blake to
recover the amount claimed to be due him by way of salary as a post
chaplain in the army from April 28, 1869, to May 14, 1878.
The court below found that under date of Dec. 24, 1868, Blake, a
post chaplain in the army stationed at Camp McDowell, Arizona,
addressed to the Secretary of War a communication in which he
complained of unjust treatment to which, during several years, he
had been subjected by various officers. He asked for the fullest
and most thorough investigation of the facts, and concluded:
"But if this cannot be done, then I wish to tender to the
Honorable the Secretary of War my resignation as a chaplain of the
army and to lay the facts, which I have for years been accumulating
with the greatest care, before the church and the country at
large."
After this letter came to the hands of the post commandant, his
attention was called to the mental condition of Blake, and it was
suggested that the latter was not responsible for his act in
writing the letter. It was therefore retained until Dec. 31, 1868,
when it was forwarded by the commandant with an endorsement
recommending the acceptance of the resignation and saying, among
other things, that "the tenor of this and other communications
forwarded will, no doubt, convince the department commander of his
utter uselessness in the position he holds."
The letter of Dec. 24, 1868, was forwarded through the district
and department headquarters, and finally through the headquarters
of the military division of the Pacific to the Secretary of War, by
whom it was transmitted to the President, who accepted the
resignation, to take effect March 17, 1869. Each of the commanding
officers through whose office
Page 103 U. S. 228
the letter passed recommended the acceptance of the
resignation.
On March 28, 1869, Blake telegraphed to the delegate in Congress
from Arizona, stating that he did not intend to resign; and that if
his letter was construed as a resignation, to withdraw it
immediately. When the Secretary of War was informed of the
telegram, he stated that the resignation had been accepted and was
beyond recall.
Blake, having received official notice of such acceptance,
addressed the following letter to the Secretary of War:
"NAPA CITY, CAL., April 27, 1869"
"Hon. JOHN A. RAWLINS"
"
Secretary of War, Washington, D.C.:"
"DEAR SIR -- To my great surprise I was yesterday informed,
thro' H'd Q'rs Dep't of California, that my 'resignation' as post
chaplain, U.S. Army, 'had been accepted by the President, . . . to
take effect March 17, 1869.'"
"As I am not aware of having at any time resigned my commission,
and as I am now in a state of feeble health, caused by efficient
services in the line of duty in 1863, 1864, and since, I beg that
the favorable reconsideration of the President may be given to my
case and that I may be ordered before a retiring board for
examination, and to duty if fit for it."
"Justice to the service, no less than to myself and family,
after eight years of devoted labors, will not permit me to be
silent in view of the wrongs done me at Camp McDowell, A.T., and I
am confident that you will not allow me to suffer wrongfully."
"I have the honor to remain, with great respect, your ob'd't
servant,"
"(Signed) CHARLES M. BLAKE"
"
(Late) Post Chaplain, U.S.A."
This letter was referred to the adjutant general, who returned
it with this endorsement:
"Respectfully returned to the Secretary of War with the paper on
which the resignation of Chaplain Blake was accepted. Chaplain
Blake appears not to be of sane mind."
"E. D. TOWNSEND,
Adjt.-Genl."
On July 7, 1870, the President nominated to the Senate six
persons to be post chaplains in the army, to rank from July 2,
Page 103 U. S. 229
1870; among them was that of "Alexander Gilmore, of New Jersey,
vice Blake, resigned." Gilmore's nomination was confirmed
July 12, 1870, and on the 14th of that month he was commissioned as
post chaplain, to rank as such from July 2, 1870. He has since
regularly received his salary and performed his duties as such post
chaplain.
The court further found that for some time prior to and on Dec.
24, 1868, Blake had been suffering from physical disease and mental
prostration; that in the light of subsequent events, "there can be
no doubt he was then insane;" that he was at times irritable and
incoherent, manifesting egotism and suspicion of his superiors;
that not until after the above date were these symptoms developed
to such an extent as necessarily to induce persons who came in
contact with him to believe he was mentally incapable of acting
with sound reasoning purpose; also that at the date of the telegram
to the delegate from Arizona, he was "totally unqualified for
business," and at the date of the letter of April 27, 1869, "he was
not of sound mind."
It also found that the insanity of Blake continued until about
the year 1874.
On Sept. 28, 1878, the President made the following order:
"EXECUTIVE MANSION, Sept. 28, 1878"
"It appearing from the evidence and from the reports of the
surgeon-general of the army and the superintendent of the
government hospital for the insane that Chaplain Blake was insane
at the time he tendered his resignation, it is held that said
resignation was and is void, and the acceptance thereof is set
aside. Chaplain Blake will be ordered to duty, and paid from the
date of the resignation of post chaplain Preston Nash, to-wit, May
14, 1878, by which resignation a vacancy was created which has not
been filled. The claim of Chaplain Blake for pay from the date of
his resignation to May 14, 1878, during which his successor held
the office, discharged its duties, and received pay, is not
decided, but is left for the decision of the court, where it is
understood to be now pending."
"R. B. HAYES"
Oct. 2, 1878, the following order was issued by direction of the
General of the Army:
Page 103 U. S. 230
"HEADQUARTERS OF THE ARMY"
"ADJUTANT-GENERAL'S OFFICE"
"WASHINGTON, Oct. 2, 1878"
"1. It appearing from the evidence presented and from the
reports of the Surgeon-General of the Army and the superintendent
of the government hospital for the insane that Post-Chaplain
Charles M. Blake, U.S. Army, was insane at the time he tendered his
resignation, December 24, 1868, said resignation is, by direction
of the President, declared void, and the acceptance of the same in
letter from this office, dated March 17, 1869, as announced in
Special Orders No. 62, March 17, 1869, from this office, is set
aside."
"Chaplain Blake is restored to the list of post chaplains of the
army with his original date of rank, and with pay from May 14,
1878, since which date a vacancy in that grade has existed. He will
report in person to the commanding officer, department of Arizona,
for assignment to duty."
"
* * * *"
"By command of General Sherman."
"(Signed) E. D. TOWNSEND,
Adjutant-General"
The court below dismissed the petition, whereupon Blake appealed
to this court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The claim of Blake is placed upon the ground that before, at the
date of, and after the letter addressed to the Secretary of War
which was treated as his resignation, he was insane in a sense that
rendered him irresponsible for his acts, and consequently that his
supposed resignation was inoperative and did not have the effect to
vacate his office. Did the appointment of Gilmore, by and with the
advice and consent of the Senate, to the post chaplaincy held by
Blake operate
proprio vigore to discharge the latter from
the service and invest the former with the rights and privileges
belonging to that office? If this question be answered in the
affirmative, it will not be necessary to inquire whether Blake was,
at the date of the letter of Dec. 24, 1868, in such condition of
mind as to enable him to perform,
Page 103 U. S. 231
in a legal sense, the act of resigning his office, or whether
the acceptance of his resignation, followed by the appointment of
his successor by the President by and with the advice and consent
of the Senate, is not, in view of the relations of the several
departments of the government to each other, conclusive in this
collateral proceeding as to the fact of a valid effectual
resignation.
From the organization of the government under the present
Constitution to the commencement of the recent war for the
suppression of the rebellion, the power of the President, in the
absence of statutory regulations, to dismiss from the service an
officer of the army or navy was not questioned in any adjudged case
or by any department of the government.
Upon the general question of the right to remove from office as
incident to the power to appoint,
Ex
parte Hennan, 13 Pet. 259, is instructive. That
case involved the authority of a district judge of the United
States to remove a clerk and appoint some one in his place.
The Court, among other things, said:
"All offices the tenure of which is not fixed by the
Constitution or limited by law must be held either during good
behavior or (which is the same thing in contemplation of law)
during the life of the incumbent, or must be held at the will and
discretion of some department of the government and subject to
removal at pleasure."
"It cannot for a moment be admitted that it was the intention of
the Constitution that those offices which are denominated inferior
offices should be held during life. And if removable at pleasure,
by whom is such removal to be made? In the absence of all
constitutional provision or statutory regulation, it would seem to
be a sound and necessary rule to consider the power of removal as
incident to the power of appointment. This power of removal from
office was a subject much disputed, and upon which a great
diversity of opinion was entertained in the early history of this
government. This related, however, to the power of the President to
remove alone, or with the concurrence of the Senate, and the great
question was whether the removal was to be by the President alone
or with the concurrence of the Senate, both constituting
Page 103 U. S. 232
the appointing power. No one denied the power of the President
and Senate jointly to remove where the tenure of the office was not
fixed by the Constitution, which was a full recognition of the
principle that the power of removal was incident to the power of
appointment. But it was very early adopted as the practical
construction of the Constitution that this power was vested in the
President alone. And such would appear to have been the legislative
construction of the Constitution."
1 Kent, Com. 309; 2 Story, Const. (4th ed.), secs. 1537-1540,
and notes; 2 Marshall, Life of Washington 162; Sergeant, Const.Law,
372; Rawle, Const., c. 14.
During the administration of President Tyler, the question was
propounded by the Secretary of the Navy to Attorney-General Legare
whether the President could strike an officer from the rolls
without a trial by a court-martial after a decision in that
officer's favor by a court of inquiry ordered for the investigation
of his conduct. His response was:
"Whatever I might have thought of the power of removal from
office if the subject were
res integra, it is now too late
to dispute the settled construction of 1789. It is according to
that construction, from the very nature of executive power,
absolute in the President, subject only to his responsibility to
the country (his constituents) for a breach of such a vast and
solemn trust. 3 Story, Com.Const. 397, sec. 1538. It is obvious
that if necessity is a sufficient ground for such a concession in
regard to officers in the civil service, the argument applies
a
multo fortiori to the military and naval departments. . . . I
have no doubt, therefore, that the President had the constitutional
power to do what he did, and that the officer in question is not in
the service of the United States."
The same views were expressed by subsequent attorneys-general. 4
Opin. 1; 6
id. 4; 8
id. 233; 12
id. 424;
15
id. 421.
In
Du Barry's Case, 4
id. 612,
Attorney-General Clifford said that the attempt to limit the
exercise of the power of removal to the executive officers in the
civil service found no support in the language of the Constitution
nor in any judicial decision, and that there was no foundation in
the Constitution for any distinction in this regard between civil
and military officers.
Page 103 U. S. 233
In
Lansing's Case, 6
id. 4, the question arose
as to the power of the President, in his discretion, the remove a
military storekeeper. Attorney-General Cushing said:
"Conceding, however, that military storekeepers are officers, or
at least
quasi-officers, of the army, it does not follow
that they are not subject to be deprived to their commission at the
will of the President."
"I am not aware of any ground of distinction in this respect, so
far as regards the strict question of law, between officers of the
army and any other officers of the government. As a general rule,
with the exception of judicial officers only, they all hold their
commissions by the same tenure in this respect. Reasons of a
special nature may be deemed to exist why the rule should not be
applied to military in the same way as it is to civil officers, but
the legal applicability to both classes of officers is, it is
conceived, the settled construction of the Constitution. It is no
answer to this doctrine to say that officers of the army are
subject to be deprived of their commissions by the decision of a
court-martial. So are civil officers by impeachment. The difference
between the two cases is in the form and mode of trial, not in the
principle, which leaves unimpaired in both cases alike the whole
constitutional power of the President."
"It seems unnecessary in this case to recapitulate in detail the
elements of constitutional construction and historical induction by
which this doctrine has been established as the public law of the
United States. I observe only that so far as regards the question
of abstract power, I know of nothing essential in the grounds of
legal conclusion, which have been so thoroughly explored at
different times in respect of civil officers, which does not apply
to officers of the army."
The same officer subsequently, when required to consider this
question, said that
"the power has been exercised in many cases with approbation,
express or implied, of the Senate, and without challenge by any
legislative act of Congress. And it is expressly reserved in every
commission of the officers, both of the navy and army."
8 Opin. 231.
Such was the established practice in the Executive Department,
and such the recognized power of the President up to the
Page 103 U. S. 234
passage of the Act of July 17, 1862, c. 200, 12 Stat. 596,
entitled "An Act to define the pay and emoluments of certain
officers of the army and for other purposes," the seventeenth
section of which provides 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, any officer for any cause which, in his judgment, either
renders such officer unsuitable for, or whose dismissal would
promote, the public service."
In reference to that act, Attorney-General Devens, 15 Opin. 421,
said with much reason that so far as it
"gives authority to the President, it is simply declaratory of
the long-established law. It is probable that the force of the act
is to be found in the word 'requested,' by which it was intended to
reenforce strongly this power in the hands of the President at a
great crisis of the State."
The Act of March 3, 1865, c. 79, 13 Stat. 489, provides that in
case any officer of the military or naval service, thereafter
dismissed by the authority of the President, shall make application
in writing for a trial, setting forth under oath that he has been
wrongfully and unjustly dismissed,
"the President shall, as soon as the necessities of the service
may permit, convene a court-martial to try such officer on the
charges on which he was dismissed. And if such court-martial shall
not award dismissal or death as the punishment of such officer, the
order of dismissal shall be void. And if the court-martial
aforesaid shall not be convened for the trial of such officer
within six months from the presentation of his application for
trial, the sentence of dismissal shall be void."
Thus, so far as legislative enactments are concerned, stood the
law in reference to dismissals of army or naval officers by the
President until the passage of the Army Appropriation Act of July
17, 1866, c. 176, 14 Stat. 92, the fifth section of which is as
follows:
"That section seventeen of an act, entitled 'An Act to define
the pay and emoluments of certain officers of the army,' approved
July seventeenth, eighteen hundred and sixty-two, and a resolution,
entitled"
"A Resolution to authorize the President to assign the command
of troops in the same filed, or department, to officers of the
Page 103 U. S. 235
same grade, without regard to seniority,"
"approved April fourth, eighteen hundred and sixty-two, be, and
the same are, hereby repealed. And no officer in the military or
naval service shall, in time of peace, be dismissed from the
service, except upon and in pursuance of the sentence of a
court-martial to that effect or in commutation thereof."
Two constructions may be placed upon the last clause of that
section without doing violence to the words used. Giving them a
literal interpretation, it may be construed to mean that although
the tenure of army and naval officers is not fixed by the
Constitution, they shall not, in time of peace, be dismissed from
the service under any circumstances or for any cause or by any
authority whatever except in pursuance of the sentence of a
court-martial to that effect or in commutation thereof. Or, in view
of the connection in which the clause appears, following as it does
one in the same section repealing provisions touching the dismissal
of officers by the President alone and to assignments by him of the
command of troops without regard to seniority of officers, it may
be held to mean that whereas, under the Act of July 17, 1862, as
well as before its passage, the President alone was authorized to
dismiss an army or naval officer from the service for any cause
which in his judgment either rendered such officer unsuitable for
or whose dismissal would promote the public service, he alone shall
not thereafter, in time of peace, exercise such power of dismissal
except in pursuance of a court-martial sentence to that effect or
in commutation thereof. Although this question is not free from
difficulty, we are of opinion that the latter is the true
construction of the act. That section originated in the Senate as
an amendment of the army appropriation bill which had previously
passed the House of Representatives. Cong.Globe, 39th Congress, pp.
3254, 3405, 3575, and 3589. It is supposed to have been suggested
by the serious differences existing, or which were apprehended,
between the legislative and executive branches of the government in
reference to the enforcement, in the states lately in rebellion, of
the reconstruction acts of Congress. Most if not all of the senior
officers of the army enjoyed, as we may know from the public
history of that period, the confidence of the political
organization then controlling the
Page 103 U. S. 236
legislative branch of the government. It was believed that,
within the limits of the authority conferred by statute, they would
carry out the policy of Congress as indicated in the reconstruction
acts, and suppress all attempts to treat them as unconstitutional
and void or to overthrow them by force. Hence, by way of
preparation for the conflict then apprehended between the executive
and legislative departments as to the enforcement of those acts,
Congress, by the fifth section of the Act of July 13, 1866,
repealed not only the seventeenth section of the Act of July 17,
1862, but also the resolution of April 4, 1862, which authorized
the President, whenever military operations required the presence
of two or more officers of the same grade in the same field or
department, to assign the command without regard to seniority of
rank. In furtherance, as we suppose, of the objects of that
legislation was the second section of the Army Appropriation Act of
March 2, 1867, c. 170, 14 Stat. 486, establishing the headquarters
of the General of the Army at Washington, requiring all orders and
instructions relating to military operations issued by the
President or Secretary of War to be issued through that officer,
and in case of his inability, through the next in rank, and
declaring that the General of the Army
"shall not be removed, suspended, or relieved from command, or
assigned to duty elsewhere than at said headquarters, except at his
own request, without the previous approval of the Senate, and any
orders or instructions relating to military operations issued
contrary to the requirements of this section shall be null and
void, and any officer who shall issue orders or instructions
contrary to the provisions of this section shall be deemed guilty
of a misdemeanor in office,"
&c.
Our conclusion is that there was no purpose, by the fifth
section of the Act of July 13, 1866, to withdraw from the President
the power, with the advice and consent of the Senate, to supersede
an officer in the military or naval service by the appointment of
someone in his place. If the power of the President and Senate in
this regard could be constitutionally subjected to restrictions by
statute (as to which we express no opinion), it is sufficient for
the present case to say that Congress did not intend by that
section to impose them. It is, in substance and effect, nothing
more than a declaration, that the
Page 103 U. S. 237
power theretofore exercised by the President, without the
concurrence of the Senate, of summarily dismissing or discharging
officers of the army or the navy whenever in his judgment the
interest of the service required it to be done, shall not exist, or
be exercised in time of peace except in pursuance of the sentence
of a court-martial or in commutation thereof. There was, as we
think, no intention to deny or restrict the power of the President,
by and with the advice and consent of the Senate, to displace them
by the appointment of others in their places.
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 from and after, at
least, the date at which that 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, 1870, from which date his successor took
rank. Having ceased to be an officer in the army, he could not
again become a post chaplain, except upon a new appointment, by and
with the advice and consent of the Senate.
Mimmack v. United
States, 97 U. S. 426.
As to that portion of the claim covering the period between
April 28, 1869, and July 2, 1870, it is only necessary to say that
even were it conceded that the appellant did not cease to be an
officer in the army by reason of the acceptance of his resignation,
tendered when he was mentally incapable of understanding the nature
and effect of such an act, he cannot recover in this action. His
claim for salary during the above period accrued more than six
years, and the disability of insanity ceased more than three years
before the commencement of this action. The government pleads the
statute of limitations, and it must be sustained. Congress alone
can give him the relief which he seeks.
Judgment affirmed.
