Opinion
No. 155.
Argued and submitted December 8, 1893. Decided December 11, 1893.
The proceedings of a court-martial held upon a captain of infantry in the army of the United States, which resulted in a judgment of dismissal from the service, having been transmitted to the Secretary of War "for the action of the President of the United States," the Secretary endorsed upon them that, "in conformity with the sixty-fifth of the rules and articles of war, the proceedings of the general court-martial in the foregoing cause . . . have been forwarded to the Secretary of War for the action of the President of the United States, and the proceedings, findings, and sentence are approved, and the sentence will be duly executed," and signed the endorsement officially as Secretary of War. Held, on the authority of United States v. Fletcher, 148 U.S. 84, that this was a sufficient authentication of the judgment of the President and that there was no ground for treating the order as null and void for want of the requisite approval.
Mr. George Wadsworth for appellant.
Mr. Assistant Attorney General Dodge and Mr. George II. Gorman filed a brief for appellees, but the court declined to hear them.
THIS was an appeal from a judgment of the Court of Claims dismissing the petition of the appellant for a judgment against the United States for unpaid salary as an officer in the army. So much of the findings of that court as are necessary for understanding the judgment of this court on the appeal were as follows:
Findings of Fact and Conclusion of Law. Filed May 26, 1890.
This case having been heard before the Court of Claims, the court, upon the evidence, finds the facts to be as follows:
I.
August 17, 1861, the claimant was appointed and commissioned first lieutenant in the Thirteenth regiment, United States infantry, to rank as such from May 14, 1861.
July 2, 1862, he was appointed captain in said regiment, to rank from May 14, 1862, and was assigned to the command of Company C, in said regiment, in the service of the United States.
II.
In March, 1869, claimant was tried by a general court-martial upon charges of "absence without leave" and "disobedience of orders," found guilty, and by said court-martial sentenced "to be dismissed the service of the United States."
Alfred H. Terry, the general commanding the department in which said court-martial was held, approved its proceedings, findings, and sentence, and on April 13, 1869, forwarded the record to the Secretary of War for the action of the President of the United States.
May 12, 1869, John A. Rawlins, then Secretary of War, made an order or endorsement on the proceedings and sentence of said general court-martial as follows, to wit:
WAR DEPARTMENT, WASHINGTON CITY, May 12, 1869.
In conformity with the sixty-fifth of the rules and articles of war, the proceedings of the general court-martial in the foregoing case of Bvt. Maj. William C. Ide, captain Thirteenth infantry, have been forwarded to the Secretary of War for the action of the President of the United States, and the proceedings, findings, and sentence are approved, and the sentence will be duly executed.
JNO. A. RAWLINS, Secretary of War.
Thereupon, by command of General Sherman, the Adjutant General issued an order that —
Bvt. Maj. William C. Ide, captain Thirteenth United States infantry, accordingly ceases to be an officer of the army from the date of this order.
The President never confirmed nor disapproved the proceedings or sentence of said court-martial, nor took any action thereon, nor made any orders in the case, unless he did so by some of the facts herein stated.
III.
Claimant was paid his salary as captain of the Thirteenth infantry to include May 31, 1869. He has never been paid since that date as an officer of the army.
November 20, 1888, he demanded pay as a captain of infantry in the United States Army from May 31, 1869, and received the following reply:
WAR DEPARTMENT, PAYMASTER GENERAL'S OFFICE, WASHINGTON, November 22, 1888.
WILLIAM C. IDE, ESQ., late Captain Thirteenth Infantry, Buffalo, New York.
SIR: Your letter of November 20, 1888, demanding pay as an officer of the army from the date of your dismissal under general orders, No. 26, of 1869, to the present date, is received, and in reply you are informed that this office has no authority to recognize any one as an officer of the army, unless his name is borne upon the official register, or notice of his appointment is communicated by the military authorities.
In the absence of any recognition of you as an officer of the army, your claim for payment be and is refused.
Respectfully your obedient servant,
WM. B. ROCHESTER, Paymaster General, U.S. Army.
The judgment is, upon the authority of United States v. Fletcher, 148 U.S. 84,
Affirmed.