Badeau v. United States/Opinion of the Court

Section 2 of the act of March 30, 1868, entitled 'An act making appropriations for the consular and diplomatic expenses of the government for the year ending 30th June, 1869, and for other purposes,' (15 St. 56, 58,) is as follows: 'That any officer of the army or navy of the United States who shall, after the passage of this act, accept or hold any appointment in the diplomatic or consular service of the government, shall be considered as having resigned his said office, and the place held by him in the military or naval service shall be deemed and taken to be vacant, and shall be filled in the same manner as if the said officer had resigned the same.' This was carried into the Revised Statutes (1874) as section 1223. By section 18, c. 42, act of August 3, 1861, (12 St. 290,) it was provided 'that the officers partially retired shall be entitled to wear the uniform of their respective grades, shall continue to be borne upon the army register, or navy register, as the case may be, and shall be subject to the rules and articles of war, and to trial by general court-martial for any breach of the said articles.' And this was re-enacted as section 1256 of the Revised Statutes. By section 16 of the said act of August 3, 1861, it was provided 'that there shall not be on the retired list at any one time more than seven per centum of the whole number of the officers of the army as fixed by law;' while by section 5 of the act of July 15, 1870, (16 St. 317,) 'the number of officers who may be retired in accordance with existing laws shall be in the discretion of the president: provided, that the whole number on the retired list shall at no time exceed three hundred;' and this reappears as section 1258 of the Revised Statutes. By section 23 of the act of July 15, 1870, (16 St. 320,) 'any retired officer may, on his own application, be detailed to serve as professor in any college,' and such is section 1260 of the Revised Statutes. By the first section of 'An act relating to retired officers of the army,' approved January 21, 1870, (16 St. 62,) it was provided 'that no retired officer of the army shall hereafter be assigned to duty of any kind, or be entitled to receive more than the pay and allowances provided by law for retired officers of his grade, and all such assignments heretofore made shall terminate within thirty days from the passage of this act;' but by resolution of April 6, 1870, (16 St. 372,) the law of January 21st was limited so as not to apply 'to officers selected by the board of commissioners of the Soldier's Home, District of Columbia, for duty at that institution, such selection being approved by the secretary of war,' and this is re-enacted in section 1259 of the Revised Statutes. By section 18 of the act of July 15, 1870, already referred to, (16 St. 319,) it was enacted 'that it should not be lawful for any officer of the army of the United States on the active list to hold any civil office, whether by election or appointment, and any such officer accepting or exercising the functions of a civil office shall at once cease to be an officer of the army, and his commission shall be vacated thereby;' and this is carried into the Revised Statutes as section 1222. Thus in the acts of 1868 and 1870, and in sections 1222 and 1223 of the Revised Statutes, congress distinguished, and adhered to the distinction, between officers on both lists and officers on the active list only, and between ordinary civil appointments and appointments in the diplomatic or consular service. No officer, whether on the active or retired list, could accept appointment in the latter, and remain an officer; but that rule was not applied to retired officers in the matter of holding a civil office.

The second section of the act of congress of March 3, 1875, reads as follows: 'That all officers of the army who have been heretofore retired by reason of disability arising from wounds received in action shall be considered as retired upon the actual rank held by them, whether in the regular or volunteer service, at the time when such wound was received, and shall be borne on the retired list, and receive pay hereafter accordingly; and this section shall be taken and construed to include those now borne on the retired list, placed upon it on account of wounds received in action: provided, that no part of the foregoing act shall apply to those officers who had been in service as commissioned officers twenty-five years at the date of their retirement; nor to those retired officers who had lost an arm or leg, or has an arm or leg permanently disabled by reason of resection, on account of wounds, or both eyes by reason of wounds received in battle; and every such officer now borne on the retired list shall be continued thereon, notwithstanding the provisions of section 2, c. 38, act of March 30, 1868. And be it also provided, that no retired officer shall be affected by this act who has been retired or may hereafter be retired on the rank held by him at the time of his retirement; and that all acts or parts of acts inconsistent herewith be, and are hereby, repealed.' 18 St. 512. By section 32 of the act of July 28, 1866, (14 St. 337,) it was provided 'that officers of the regular army entitled to be retired on account of disability occasioned by wounds received in battle may be retired upon the full rank of the command held by them, whether in the regular or volunteer service, at the time such wounds were received.' It was within the power of congress to change the rank here spoken of, and this it did by the act of 1875, which substitutes for 'the full rank of the command held by them' the 'actual rank held by them,' and which embraces only 'those now borne on the retired list, placed upon it on account of wounds received in action.' Wood v. U.S., 107 U.S. 414, 417, 2 Sup. Ct. Rep. 551. Under this act officers of 25 years' service at the date of their retirement, and officers who had lost an arm or leg, or had an arm or leg permanently disabled, or both eyes, were not subject to be considered as retired upon the actual rank held by them when wounded, as provided in the first part of the section; and no retired officer was affected by the act who had been or might be retired on the rank actually held by him at the time of such retirement; and all officers mentioned in the first part of the section, or of 25 years' service, or who had lost an arm or leg, etc., could accept appointment in the diplomatic or consular service, notwithstanding section 2 of the act of March 30, 1868, or section 1223 of the Revised Statutes, as we think the words 'every such officer now borne on the retired list shall be continued thereon' refer to all officers previously mentioned in the section, and the provision in this respect shows that up to March 3, 1875, section 2 of the act of 1868 applied to officers on the retired list as well as those in active service.

Sections 1763, 1764, and 1765 of the Revised Statutes are as follows: 'Sec. 1763. No person who holds an office, the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars, shall receive compensation for discharging the duties of any other office, unless expressly authorized by law. Sec. 1764. No allowance or compensation shall be made to any officer or clerk, by reason of the discharge of duties which belong to any other officer or clerk in the same or any other department and no allowance or compensation shall be made for any extra services whatever, which any officer or clerk may be required to perform, unless expressly authorized by law. Sec. 1765. No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.'

Whether by the order of the secretary of war, July 3, 1878, the claimant's name was properly restored to the retired list we are not called upon to determine in this case, because, even were that so, we do not think his petition can be sustained. Gen. Badeau received as consul general at London an annual salary of $7,500, and at Havana, $6,000, as fixed by law, and was expressly inhibited from receiving any additional salary, allowance, pay, or compensation for discharging the duties of any other office, unless expressly authorized by law, of which there is no pretense in this case. It has been decided that a person holding two offices or employments under the government, when the services rendered, or which might be required under them, were not incompatible, is not precluded from receiving the salary or compensation of both. Converse v. U.S., 21 How. 463; U.S. v. Brindle, 110 U.S. 688, 4 Sup. Ct. Rep. 180. But the treasury department did not apparently regard this case as falling within that exception, and we agree with that conclusion. U.S. v. Shoemaker, 7 Wall. 338; Stansbury v. U.S., 8 Wall. 33; Hoyt v. U.S., 10 How. 109, 141. Under the act of 1875 retired officers situated as therein described are so far taken out of the operation of the act of 1868 as not to be held, if they accept or hold diplomatic or consular appointment, to have resigned their places in the army; but this does not change the general policy of the law, and does not entitle them to pay as army officers during the period of time when they are absent from their country in the discharge of continuous official duties inconsistent with subjection to the rules and articles of war, and the other incidents of military service. Notwithstanding section 1223, such officers, when in the diplomatic or consular service, may still be borne on the retired list, but cannot receive double compensation.

Nor can we disturb the judgment adverse to the counter-claim. As between individuals, where money has been paid under a mistake of law, it cannot be recovered back, but it is denied that this rule is applicable to the United States, upon the ground that the government is not bound by the mistakes of its officers, whether of law or of fact. U.S. v. Kirkpatrick, 9 Wheat. 720; U.S. v. Bank, 15 Pet. 377; McElrath v. U.S., 102 U.S. 426. But inasmuch as the claimant, if not an officer de jure, acted as an officer de facto, we are not inclined to hold that he has received money which, ex acquo et bono, he ought to return. He was paid as a military officer from December 6, 1869, to the 21st of February, 1870, and for the time from February 21, 1870, to April 30, 1870, and for about 14 months, beginning in September, 1881, and ending in November, 1882. After May 19, 1869, he was employed in a diplomatic or consular capacity, except during the above specified periods, and the implication from the findings is that he was paid for those periods, because he was actually rendering service, whether subject to assignment thereto or not. The judgment of the court of claims is affirmed.

MILLER, J., dissented.