102 U.S. 426 (____)


Supreme Court of United States.

Attorney(s) appearing for the Case

Mr. Frank W. Hackett for the appellant.

The Attorney-General for the United States.

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 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, 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 dismission 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 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, tranquillity, 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 id. 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 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 government may plead against the claimant any set-off, counter-claim, 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 defence, or to any set-off, or counter-claim 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 set-off, counter-claim, 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 counter-claim 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 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 re-examine 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.


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