Mimmack v. United States

APPEAL from the Court of Claims.

This was a suit brought Sept. 2, 1873, in the Court of Claims, by Bernard P. Mimmack against the United States, to recover pay and allowances as a captain in the army to that date from Dec. 11, 1868, amounting to $9,344.29. The court found the following facts:--

That in May, 1868, the petitioner, said Mimmack, was a captain of the thirtieth regiment of infantry, and brevet-major, on duty at Fort Sidney, which was under the command of General Potter.

Previous to the 10th of May, charges, with specifications of drunkenness on duty, &c., were preferred against the petitioner; and he then said that, on condition the charges should not be acted upon, he would place his resignation in the hands of General Potter, to be held by him, and not forwarded to the War Department, if he should entirely abstain from the use of intoxicating liquors; and on the 10th of May the petitioner enclosed his resignation to General Potter in a letter, stating that the resignation was without date, and authorizing General Potter to place it in General Augur's hands, to forward to the War Department, should he, the petitioner, ever become intoxicated again. General Potter sent the resignation and letter of the petitioner to General Augur, and informed him of the understanding had with the petitioner, as above stated.

Previous to Oct. 3, 1868, the petitioner having been again intoxicated on duty, and by excessive drunkenness confined to his bed in a state bordering on delirium tremens, General Potter placed him under arrest, and ordered him to turn over the company's property in his hands. By letter, dated Oct. 3, 1868, General Potter informed General Augur that the petitioner had again broke out drinking hard, and that he had placed him under arrest, and ordered him to turn over the company property.

On the 5th of October, General Augur forwarded the petitioner's resignation, with the date filled up 'Oct. 5, 1868,' to the War Department. This date was not filled up by the petitioner, nor was he informed of the communication by General Potter, not of the fact that his resignation was to be forwarded to the War Department.

On the 29th of that month, the resignation was accepted by the President, to take effect from that date, and notice of the acceptance was sent to the petitioner, who received it Nov. 8. It was not shown that the President, at the time of accepting it, had been informed of the manner in which it had been lodged with General Potter, or of the fact that the date had been filled in by a third person, or of any of the circumstances connected with the resignation.

On the 18th of November, the President promoted First-Lieutenant Appleton D. Palmer to be 'captain in the thirtieth regiment of infantry,' 'vice Mimmack, resigned;' and notice thereof was sent by letter to Captain Palmer, of that date, but he was not then commissioned.

On the 8th of December, the name of First-Lieutenant Palmer was placed on the list of nominations made by the President to be sent to the Senate.

On the 11th of December, the President, on the petitioner's application, revoked the acceptance of the resignation, and ordered him to duty, and notice thereof was given to the Secretary of War.

On the 12th of December, a report was made to the President of the facts of the case by the War Department, and on the 24th the report was returned to the Secretary of War by the President for action under the order of Dec. 11.

The report and the direction of the President were referred to the General of the Army, who requested that, before an order was issued, the opinion of the Attorney-General might be obtained as to the legality of the President's revocation of his acceptance of the petitioner's resignation.

On the 30th of December, by the direction of the President, the name of First-Lieutenant Palmer was stricken from the list of nominations made by the President to be sent to the Senate, and the Secretary of War was notified thereof.

On the 4th of January, 1869, the case of the petitioner, with the papers relating thereto, was submitted by the Secretary of War to the Attorney-General, who, on the 4th of February, gave his opinion that the President's revocation of his acceptance of the petitioner's resignation had not the effect of restoring him to his former position in the military service.

On the 13th of February, the opinion of the Attorney-General and the papers containing the President's order were sent to the General of the Army; and he declined to permit his name to be used in promulgating the order, as in his opinion it was illegal, and he was sustained in that by the opinion of the Attorney-General.

On March 11, 1869, President Grant nominated First-Lieutenant Palmer to the Senate to be 'captain, Oct. 29, 1868, vice Mimmack, resigned.' The nomination was not acted upon. By letter of May 4, 1869, he was notified of his promotion by letter.

On the 6th of the following December, the President renominated Lieutenant Palmer to be 'captain, Oct. 29, 1868, vice Mimmack, resigned;' and the Senate, on the 22d of that month, advised and consented to the appointment, agreeably to the nomination.

On the 19th of February, 1869, the petitioner enlisted in the marine corps, and served therein until the 27th of August, when he was transferred to the United States ship 'Lancaster,' and served as clerk, and then secretary to the commanders of squadrons, until May 22, 1872; and in the time specified he received as pay $2,344.09.

On the 2d of November, 1872, the petitioner was appointed a clerk in the Second Auditor's office, and served therein till Aug. 16, 1873, when he was appointed a clerk in the Fourth Auditor's office; and up to June 30, 1874, he had received pay as clerk as aforesaid to the amount of $2,082.49.

The Court of Claims dismissed the petition, and found as a conclusion of law that the revocation by the President of his acceptance of Mimmack's resignation, after notice to him of such acceptance, did not restore the petitioner to his post in the army.

Judgment having been rendered, Mimmack appealed here.

Mr. Albert Pike for the appellant.

Even if it be conceded that Mimmack did actually resign his commission, the President had the power, before the vacancy was filled, to recall or revoke his acceptance of the resignation. Rex v. Mayor of Rippon, 1 Ld. Raym. 563; S.C.. 2 Salk. 433. Montgomery v. United States, 5 Ct. of Cl. 94.

The resignation of a civil officer takes effect when it is received by the appointing power. United States v. Wright, 1 McLean, 509; Gates v. Delaware Co., 12 Iowa, 405; People v. Porter, 6 Cal. 26. But that of a military officer does not take effect until he has received notice of its acceptance. If he leaves his post without such notice, he renders himself liable to the penalties for desertion. 12 Stat. 316.

A prospective resignation is an intention, or at least a promise, to resign, which may be withdrawn before the time fixed; and where no new rights have intervened, it may, with the consent of the accepting party, be withdrawn even after it has been accepted. Biddle v. Willard, 16 Ind. 66. Before the Presedent recalled his acceptance of Mimmack's alleged resignation, a letter of appointment had been sent to Palmer, but no commission was issued. The President's appointing power is only completely exercised when he performs the last act required from him: which is signing the commission, and causing to be thereunto affixed the seal of the United States. Marbury v. Madison, 1 Cranch, 137; United States v. Le Baron, 19 How. 73; United States v. Bank of Arkansas, Hemp. 460. And where a vacancy happens during the recess of the Senate, he can only fill it by granting a commission 'which shall expire at the end of the next session.' The letter of appointment was, therefore, an absolute nullity, conferring on Palmer no rights, and presenting no obstacle to the President's action in revoking his acceptance of a pretended resignation forwarded to him without Mimmack's knowledge.

There is no decided case which affirms that the resignation of an officer in the civil service, after it has been received by the appointing power, cannot, by the consent of the latter, be withdrawn. By the uniform practice of the government, from its origin, his relations to that service, after his resignation has been so withdrawn, remain the same as if it had never been sent. Such is the effect of the revocation of the acceptance of the resignation of an officer in the military or the naval service, if the office be not filled at the time of such revocation.

'The revocation of an order accepting the resignation of an officer of the regular army is not in the nature of a new appointment, and upon such revocation the officer assumes his previous status and relative rank in his arm of the service, subject only to the loss of his pay and allowances for the period during which he was actually out of the service.' Opinions of the Judge-Advocate-General of the Army, Official Record, vol. xix. p. 307; Digest of Opinions, 328; id. (ed. 1866) 210.

When, therefore, President Grant sent the name of Palmer to the Senate, Mimmack was in the service, and he could not be removed therefrom by force of an executive nomination, even if it was sanctioned by the Senate. No officer, in time of peace, can be dismissed from the military service, except pursuant to the sentence of a court-martial. 14 Stat. 92.

There never was any valid tender of a resignation. General Potter held the paper, not as the superior officer of Mimmack, but as his private agent, pro hac vice. Mimmack, five months before, had agreed that it should be forwarded as his resignation, if he should 'ever become intoxicated again.' Intoxication does not involve the forfeiture of an office. The agreement was therefore void,-a mere promise, without consideration; but if it absolutely bound him, his commission of the act, which was the condition precedent on which alone the paper could be sent, should have been established upon a trial, after due notice to him.

The paper was not an escrow; because a deed is such only when its delivery is dependent on something to be done by the person therein named as grantee. If the maker has a right to reclaim it, it is no escrow.

Captain Mimmack having never been out of the service, his place was not lawfully filled by another, and he is entitled to his pay and allowances, for which this suit was brought.

The Attorney-General, contra.

1. The contingency having happened upon which, by the express authority of Mimmack, his resignation in writing was to be forwarded, its transmission to the War Department was, in law, his own voluntary act.

2. On his receiving through the appropriate channel a notice of the President's acceptance of that resignation, his connection with the military service of the United States terminated, and the right of Palmer to promotion at once accrued.

3. The President's subsequent attempted revocation of his acceptance could not defeat that right, nor work Mimmack's restoration. Dubarry's Case, 4 Op. Att'y-Gen. 124; Whitney's Case, id. 277; Kendall's Case, id. 306; Downing's Case, 7 id. 99. The latter result could only be accomplished by an appointment by the President, by and with the advice and consent of the Senate.

4. The appointment by the President and Senate of Palmer as captain, vice Mimmack, resigned, would seem of itself to be conclusive as to the status of the latter. At all events, in this suit their action cannot be set aside, nor can his claim to the captaincy be asserted adversely to the right of another, who holds the commission.

5. That action, if subject to judicial review, must be declared unlawful and void, and Mimmack's title established in a direct proceeding, before a suit for the pay and emoluments of the office can be maintained.

MR. JUSTICE CLIFFORD delivered the opinion of the court.