Street v. United States

This is an appeal from a judgment of the court of claims, (24 Ct. Cl. 230.) Appellant brought his action in that court to recover, not for services actually rendered, but for 16 years' salary as first lieutenant, claiming that this was due by reason of an alleged illegality in the order of January 2, 1871, discharging him from the service. That order is therefore the matter of inquiry.

In 1869 and 1870 acts of congress were passed looking to a reduction in the army, and the order in question was made in pursuance of the last of these acts. The intent of congress is obvious, and all proceedings had to carry such intent into effect should be liberally construed, and not subjected to any such technical limitations as will thwart such obvious purpose. The act of July 13, 1866, (14 St. 92,) has no bearing on the case at bar; for, as held by this court in Blake v. U.S., 103 U.S. 227, it simply placed a limitation on the personal power of the president, as commander in chief, in time of peace, to dismiss from the service. It was not intended to have, as it could not have, any effect on the power of a subsequent congress to reduce the army by appropriate legislation in respect to either its officers or enlisted men. The act of March 3, 1869, (15 St. p. 315, §§ 2-7, inclusive,) is significant only as indicating the intent of congress that the army should be reduced, for the method of reduction there provided is simply the cessation of enlistments and appointments. Evidently the reduction by this method was not as rapid as was desired, for on July 15, 1870, an act was passed making provision for a direct reduction, (16 St. 315.) Section 2 authorizes and directs the president to reduce, on or before the 1st day of July, 1871, the number of enlisted men to 30,000. With respect to the officers, there were several sections aimed at reduction,-some abolishing certain offices; others providing that no appointments to particular offices should be made until the number of incumbents was reduced below a prescribed limit. In addition, there were four provisions having general application. Section 3 authorized the president to grant an honorable discharge to all officers applying on or before the 1st of January, 1871, and giving the officers so discharged an additional year's pay and allowances. Sections 4 and 5 increased the retired list to 300, and authorized the president to place on such list, on their own application, officers with 30 years' service. The other provisions are found in sections 11 and 12, which, as being the sections specially bearing on the questions in this case, are quoted, as follows: 'Sec. 11. And be it further enacted, that the general of the army and commanding officers of the several military departments of the army shall, as soon as practicable after the passage of this act, forward to the secretary of war a list of officers serving in their respective commands deemed by them unfit for the proper discharge of their duties, from any cause except injuries incurred or disease contracted in the line of their duty, setting forth specifically in each case the cause of such unfitness. The secretary of war is hereby authorized and directed to constitute a board to consist of one major general, one brigadier general, and three colonels, three of the said officers to be selected from among those appointed to the regular army on account of distinguished services in the volunteer force during the late war; and, on recommendation of such board, the president shall muster out of the service any of the said officers so reported, with one year's pay; but such muster-out shall not be ordered without allowing such officer a hearing before such board to show cause against it. Sec. 12. And be it further enacted, that the president is hereby authorized to transfer officers from the regiments of cavalry, artillery, and infantry to the list of supernumeraries; and all vacancies now existing, or which may occur prior to the first day of January next, in the cavalry, artillery, or infantry, by reason of such transfer, or from other causes, shall be filled in due proportion by the supernumerary officers, having reference to rank, seniority, and fitness, as provided in existing law regulating promotions in the army. And, if any supernumerary officers shall remain after the first day of January next, they shall be honorable mustered out of the service, with one year's pay and allowances: prov ded, that vacancies now existing in the grade of second lieutenants, or which may occur prior to said date, may be filled by the assignment of supernumerary first lieutenants, or officers of higher grades, who, when so assigned, shall rank as second lieutenants, provided such officer shall prefer to be assigned, instead of being mustered out under the provisions of this section; and officers so assigned shall take rank from the date of their original entry into the service: and provided, further, that no chaplain be appointed to posts or regiments until those on waiting orders are assigned.'

It appears from the findings that on October 27, 1870, the claimant, who was on active duty at Fort Bidwell, Cal., was reported by the department commander, Lieutenant Colonel George Crook, as unfit for the proper discharge of his duties from other causes than injuries incurred or disease contracted in the line of his duties. His name was submitted to the board organized in pursuance of the eleventh section quoted supra. On the 17th of November the board requested that he, with others named, be given a hearing, as required by that section. On November 19th the adjutant general informed the board that the stations of these officers were so remote that it was impossible for it to consider their cases, and that the secretary of war had directed that they be not ordered to appear. In compliance with this order, on November 22d, the papers in these cases were returned to the secretary of war; in other words, the proceedings initiated under section 11 were abandoned. No inquiry was ever made as to the alleged unfitness for the proper discharge of his duties from causes other than injuries incurred or disease contracted in the line of duty. It appears, further, that on January 2, 1871, January 1st being Sunday, an order was issued by the secretary of war, which, so far as it affects this claimant, reads as follows:

'(General Orders, No. 1.)

'WAR DEPARTMENT, ADJUTANT GENERAL'S OFFICE.

'WASHINGTON, January 2, 1871.

'By direction of the president, the following officers of the     army are transferred, assigned, or mustered out of the      service, to take effect from the 1st instant:

I. Transfers to the list of supernumeraries, under section 12     of the act approved July 15, 1870.



First Lieutenant Harlow L. Street, first cavalry.


 * *    * II. Transfers and assignments to fill vacancies to      thepresent date.



First Lieutenant Max Wessendorff, unassigned, to the first     cavalry, vice Street, transferred to the list of      supernumeraries.



III. Unassigned officers whose commissions have expired under     section 12 of the act of congress approved July 15, 1870, and      who are honorably mustered out of the service.



First Lieutenant Harlow L. Street.



'By order of the secretary of war:

'E. D. TOWNSEND, Adjutant General.'

Subsequently, on September 18, 1871, he received the year's pay provided for in section 12, and still later, on the 18th of February, 1881, he was paid the sum of $117.95 upon treasury settlement, on account of some errors in the previous payment.

J. M. Vale, for appellant.

Asst. Atty. Gen. Cotton and F. P. Dewees, for the United States.

BREWER, J.