Runkle v. United States

This record shows that on the fourteenth of September, 1882, Benjamin P. Runkle filed in the office of the second auditor of the treasury department a claim based on the decision of this court in U.S. v. Tyler, 105 U.S. 244, for longevity pay as an officer in the army of the United States, 'retired from active service;' and that on the twenty-seventh of June, 1883, the secretary of the treasury referred it to the court of claims, under section 2 of the act of March 3, 1883, (chapter 116, 22 St. 485,) for an opinion upon the following questions: '(1) Was the court-martial that tried Benjamin P. Runkle duly and regularly organized, and had it jurisdiction of the person of said Runkle, and of the charges upon which he was tried? (2) Were the proceedings and findings of said court-martial regular, and the sentence duly approved in part by the president of the United States, as required by law? (3) Was Benjamin P. Runkle legally cashiered and dismissed from the army of the United States in pursuance of said court-martial and subsequent proceedings? (4) Was the president of the United States authorized and empowered by executive orde to restore said Runkle to the army, as it is claimed he was restored by the order of August 4, 1877? (5) Is Benjamin P. Runkle now a retired army officer, with the rank of major, and, as such officer, entitled to longevity pay under what is known as the Tyler decision?' Runkle thereupon filed his petition in the court of claims, in accordance with the rules of practice in that court applicable to such cases, and the United States put in a counter-claim for '$23,585.62, moneys paid to the said claimant by the paymaster general and his subordinates without authority of law; being the pay and allowances of a major in the army upon the retired list from the fourth day of August, 1877, to January 1, 1884, during which period the said claimant was not a major in the army, nor in any way authorized to draw pay and allowances as aforesaid.'

The facts as found by the court of claims are as follows:

(1) April 22, 1861, the claimant was mustered in as a captain of Thirteenth Ohio volunteer infantry, and served as such till November 8, 1861, when he was mustered in as major. August 18, 1862, he was honorably mustered out. August 19, 1862, he was mustered in as colonel of Forty-fifth Ohio volunteer infantry, and honorably mustered out July 21, 1864. August 29, 1864, he accepted appointment as lieutenant colonel of Veteran Reserve Corps, and was honorably mustered out October 5, 1866. October 6, 1866, he accepted appointment as major of Forty-fifth United States infantry, became unassigned, March 15, 1869, and was placed on the retired list as major United States army, December 15, 1870.

(2) At the time he was so placed on the retired list he was on duty as a disbursing officer of the bureau of refugees, freedmen, and abandoned lands for the state of Kentucky, and had been on that duty from Aprill 11, 1867; and continued on it, without any new assignment to it, until he was arrested for trial before a court-martial, as hereinafter shown.

(3) June 25, 1872, the following special order, No. 146, was issued by the war department: '(1) By direction of the president, a general court-martial is hereby appointed to meet at Louisville, Kentucky, on the fifth day of July, 1872, or as soon thereafter as practicable, for the trial of Second Lieutenant John L. Graham, Thirteenth infantry, and such other prisoners as may be brought before it.' Before the court-martial convened and organized under this order, the said Runkle was arraigned and tried on the following charges: 'Charge 1. Violation of the act of congress approved March 2, 1863, c. 67, § 1. Charge 2. Conduct unbecoming an officer and a gentleman.' The specifications presented under these charges were all based on acts alleged to have been done by the claimant while on duty as a disbursing officer of the bureau of refugees, freedmen, and abandoned lands. There were 13 specifications under the first charge, and 14 under the second. All the specifications averred acts done by him in the year 1871, except the first and fifth under charge 1, and the first, fifth, and fourteenth, under charge 2, all of which averred acts done in 1870, before he was placed on the retired list. Of the first and fifth specifications under charge 1, and of the fourteenth under charge 2, he was found guilty. He was also found guilty of 10 other specifications under charge 1, and of 5 other specifications under charge 2, all of which averred acts done by him in 1871. He was also found guilty of both charges; and was sentenced by the court to be cashiered, to pay the United States a fine of $7,500, and to be confined in such penitentiary as the president of the United States might direct for the period of four years, and, in the event of the nonpayment of the fine at the expiration of four years, that he should be kept in confinement in the penitentiary until the fine be paid, the total term of imprisonment, however, not to exceed eight years.

(4) The proceedings, findings, and sentence of said court-martial were transmitted t the secretary of war, who wrote upon the record the following order:

'The proceedings in the foregoing case of Major Benjamin P.     Runkle, retired, United States Army, are approved, with the      exception of the action of the court in rejecting as evidence      a certain letter written by a witness for the prosecution,      and offered to impeach his credibility; also in unduly      restricting the cross-examination of the same witness in      relation to the motives influencing his testimony. Inasmuch,     however, as in the review of the case it was determined that      the whole testimony of this witness could be excluded from      consideration without impairing the force of the testimony      for the prosecution, upon which the findings rest, the      erroneous action of the court in this respect does not affect      the validity of the sentence. The findings and sentence are     approved. In view of the unanimous recommendation by the     members of the court that accused shall receive executive      clemency on account of his gallant services during the war,      and of his former good character, and in consideration of      evidence, by affidavits presented to the war department since      his trial, showing that accused is now, and was at the time      when his offense was committed, suffering under great      infirmity in consequence of the wounds received in battle,      and credible representations having been made that he would      be utterly unable to pay the fine imposed, the president is      pleased to remit all of the sentence except so much thereof      as directs cashiering, which will be duly executed.

'WM. W. BELKNAP, Secretary of War.'

The said secretary also issued, January 16, 1873, a general order of the war department No. 7, series of 1873, announcing the sentence of the court-martial, and that 'Major Benjamin P. Runkle, U.S. Army, (retired), ceases to be an officer of the army from the date of this order.' From the date of this order till after August 4, 1877, the claimant's name was not borne upon the army register.

(5) August 4, 1877, R. B. Hayes, president of the United States, made the following order:

'EXECUTIVE MANSION, WASHINGTON, August 4, 1877.

'In the Matter of the Application of Major Benjamin P.     Runkle, U.S. Army, (retired.)

'The record of official action heretofore taken in the     premises shows the following facts, to-wit: First. That on     the fourteenth of October, 1872, Major Runkle was found      guilty by court-martial upon the following charges, to-wit:      'Charge 1. Violation of the act of congress approved March 2,     1863, c. 67, § 1. Charge 2. Conduct unbecoming an officer and     a gentleman.' Second. That on the sixteenth of January, 1873,     W. W. Belknap, then secretary of war, approved the      proceedings of said court, and thereupon caused general order      No. 7, series of 1873, to issue from the war department, by      which it was announced that Major Benjamin P. Runkle was      cashiered from the military service of the United States. Third. That subsequent to the date of said general order No. 7, to-wit, on the sixteenth day of January, 1873, Major     Runkle presented to the president a petition, setting forth      that the proceedings of said court had not been approved by      the president of the United States, as required by law; that      said conviction was unjust; that the record of said      proceedings was not in form or substance sufficient in law to      warrant the issuing of said order; and asking the revocation      and annulment of the same. Fourth. That, in pursuance of this     petition, the record of the official action theretofore had      in the premises was, by direction of the president, Ulysses      S. Grant, referred to the judge advocate general of the      United States army for review and report.

Fifth. That thereupon the judge advocate general reviewed the     case, and made his report thereon, in which it is reported      and determined, among other things, that, in the proceedings      had upon the trial of the case by said court, 'it is nowhere      affirmatively established that he (Major Runkle) actually      appropriated any moneyt o his own use.' It also appears in      said report that the conviction of said Runkle, upon charge      one as aforesaid, is sustained upon the opinion that      sufficient proof of the crime of embezzlement on the part of      the accused was disclosed by the evidence before the court. And with respect to charge two no reference to the same is     made in said report, except to deny the sufficiency of the      evidence in the case, for a conviction upon the fourteenth      specification thereof; and it is to be observed that the      thirteen remaining specifications under this charge are      identical with the the thirteen specifications under charge      one. The judge advocate general further finds and determines     in said report as follows, to-wit: 'For alleged failures to      pay, or to pay in full,' on the part of the subagents, 'I am      of the opinion that the accused cannot justly be held      liable.' Sixth. That no subsequent proceedings have been had     with reference to said report, and that the said petition of      said Runkle now awaits further and final action thereon. Whereupon, having caused the said record, together with said     report, to be laid before me, and having carefully considered      the same, I am of opinion that the said conviction is not      sustained by the evidence in the case, and the same, together      with the sentence of the court thereon, are hereby      disapproved; and it is directed that said order No. 7, so far      as it relates to said Runkle, be revoked.

'R. B. HAYES.'

At the time of the issue by President Hayes of this order, the number of officers on the retired list of the army was 300, and continued so until November 19, 1877. During that period the claimant was carried on the army records as additional to the number of retired officers allowed by law, until a vacancy occurred on said last-named date; since which date he has been borne on the retired list, and up to January 1, 1884, has drawn pay to the amount of $23,585.62. Of this sum $9,195.27 was paid to him August 15, 1877, for the period from January 16, 1873, the date of the order signed by Secretary Belknap, to the fourth of August, 1877, the date of the order of President Hayes.

(6) August 7, 1877, the claimant addressed a letter to the paymaster general of the army, asserting his legal right to pay as a retired major for the period of time between the dates of those two orders. This letter the paymaster general referred to the secretary of war with the following indorsement:

'Respectfully forwarded to the Hon. Secretary of War.

'It has been enjoined that questions of payment in such cases     shall be submitted to the secretary of war. See letter of     July 7, 1863, from Col. J. A. Hardee, asst. adjt. general, to     the paymaster general, stating the orders of the war      department that 'an officer restored to the service either by      the revocation of the order of dismissal or discharge, or by      simple restoration, is not entitled to pay for the period      that he was out of service, unless the same is expressly      ordered by the war department.' The language of the judge      advocate general on this point is to the same effect. See     Judge Advocate's Digest of 1868, p. 266. 'Where an order of     the war department for the dismissal, discharge, or      muster-out of an officer is subsequently revoked, and he      reinstated in his former rank and position, it is competent      for the president, in his discretion, to allow him pay for      the interval during which he was illegally separated from the      service under the original order.' The course of military      administration has, however, developed no precise rule on      this subject, each case of a claim for pay by such an officer      having been, in practice, determined by the special      circumstances surrounding it.

'BENJ. ALVORD, Paym'r General U.S. Army.

'P. M. G. Office, August 9, 1877.' The secretary of war returned the letter to the paymaster general, through the adjutant general, and when it reached the paymaster general it had on it the following indorsements:

'Respectfully returned (through the adjustat general) to the      paymaster general. By the order of the president of August 4,     1877, the approval of the proceedings and sentence in the      case of Major B. P. Runkle, of date January 16, 1873, was      revoked, the said proceedings and sentence were disapproved,      and the order of dismissal was set aside. This order of the     president must be accepted by this department as revoking      said order of dismissal from its inception, and as annulling      all its consequences. As Major Runkle was, at the time of his     trial and sentence, an officer of the retired list, the fact      that he has not been on duty in the interim can make no      difference, since a retired officer is not subject to duty. He will therefore be paid whenever funds are available for     that purpose. This indorsement has been submitted to and is     approved by the president.

GEORGE W. MCCRARY, Secretary of War.

'War Dept., August 13, '77.

'Noted and respectfully forwarded.

'E. D. TOWNSEND, Adjt. Gen'l.

'August 14, '77.'

Upon receiving back the said letter, with said indorsements, the paymaster

'Respectfully returned (through the adjustant general)

'Respectfully referred to Major Alexander Sharp, P. M., U.S.     A. Present. Maj. Runkle was last paid to include January 15,     1873.

'CHAS. T. LARNED, Acting Paym'r Gen'l U.S. Army.

'C. T. L., P. M. G. O., August 15, 1877.' It was in obedience to the order of the president, signified by the above indorsement of the secretary of war, that the claimant was paid the aforesaid sum of $9,195.27.

Upon the foregoing facts the conclusions of law were as follows: (1) That the claimant is not entitled to recover longevity pay; (2) that the defendants are not entitled, under their counter-claim, to recover the pay received by the claimant as a retired major, which accrued after the fourth or August, 1877, amounting to $14,390.35; (3) that the defendants are entitled, under their counter-claim, to recover of the claimant $9,195.27, being the amount paid him for the time between January 16, 1873, and August 4, 1877. 19 Ct. Cl. 395.

From a judgment entered in accordance with these conclusions both parties appealed.

''M. F. Morris, Geo. W. McCrary, and Donn Piatt'', for Runkle.

Asst. Atty. Gen. Howard, for the United States.

WAITE, C. J.