United States v. Landers

APPEAL from the Court of Claims.

Landers enlisted for three years; was enrolled Jan. 1, 1864; and mustered into service Jan. 16, 1864, to take effect from the date of his enrolment. He deserted Nov. 12, 1864; was arrested June 2, 1865; restored to duty, with the loss of all pay and allowances due or to become due during the term of his enlistment; and honorably discharged on the 8th of August, 1865. The Court of Claims rendered judgment in his favor for an amount equal to his pay and bounty. The United States appealed.

Mr. Assistant Attorney-General Edwin B. Smith for the United States.

The Court of Claims erroneously assumes that this court held in United States v. Kelly, 15 Wall. 34, that the offence of desertion was purged by an honorable discharge. Such is not the case. Power to try the soldier, or, further, to punish him for the desertion, is lost by his restoration to duty. Thenceforth there is nothing to be purged. As part and condition of that restoration 'by competent authority,' forfeiture may, however, be decreed of his pay and allowances. Army Reg. 159, 160; R. S. 4749; Judge Ad.-Gen. Holt's Op., p. 139, sects. 7, 9; p. 136, sect. 1.

If the restoration be, in effect, a pardon (as treated by the Court of Claims), then it can only be authorized by the President, who is solely invested with the power to grant an absolute or conditional pardon. Ex parte Wells, 18 How. 307, 314.

Mr. Thomas J. Durant and Mr. A. A. Hosmer, contra.

The plain and definite language adopted by this court in United States v. Kelly, 15 Wall. 34, establishes the presumptio juris et de jure of the thing adjudged; that is, the honorable discharge is a formal, final judgment in favor of the soldier upon his entire military record. This discharge cannot be impeached collaterally; nor can any officer of the pay department disregard its contents, or refuse to give it its legal effect.

MR. JUSTICE FIELD delivered the opinion of the court.