Rights and lia

bilities.

42, s. 18, v. 12, p.

290.

Sec. 1256, R.S.

1319. Officers retired from active service shall be entitled Aug. 3, 1861, c. to wear the uniform of the rank on which they may be retired. They shall continue to be borne on the Army Register, and shall be subject to the rules and articles of war, and to trial by general court-martial for any breach thereof.1

Assignment to duty at Soldiers' Home.

Jan. 21, 1870, c.

Apr. 6, 1870, Res.

1320. Retired officers of the Army may be assigned to duty at the Soldiers' Home, upon a selection by the com9, s. 2, v. 16. p. 62: missioners of that institution, approved by the Secretary 32. v. 16, p. 372 of War; and a retired officer shall not be assignable to any other duty: Provided, That they receive from the Government only the pay and emoluments allowed by law to retired officers."

Feb. 27, 1877, c.

69. v. 19, p. 243.

Sec. 1259, R.S.

Ineligible for civil office in any

Territory.

Mar. 3, 1883, v.

22, p. 567. Sec.

1321. No person belonging to the Army or Navy shall be elected to or hold any civil office or appointment in any c. 1860, R.S. Territory, except officers of the Army on the retired list. 1322. In time of war retired officers of the Army may, in time of war. in the discretion of the President, be employed on active 7, v. 30, p. 979. duty, other than in the command of troops, and when so

Employment

of retired officers

Mar. 2, 1899, s.

A retired officer is subject to trial by court-martial, and a court-martial has jurisdiction of offenses committed after the officer was retired. Runkle r. U. S., 19 Ct. Cls., 396.

An officer on the retired list, being as much a part of the Army as any officer on the active list, would be subject to trial by general court-martial independently of the provision, specifically so subjecting him, of section 1256, Revised Statutes. Dig. Opin. J. A. G., par. 2200.

A retired officer, upon conviction, may be sentenced similarly to an officer on the active list, except that the punishments of suspension and loss of files or relative rank are not appropriate to the status of a retired officer. Ibid., note 2.

2A retired Army officer is not prohibited by law from holding office in an Executive Department, nor from receiving the salary thereof in addition to his retired pay. Collins . U. S., 15 Ct. Cls. 22; Meigs v. U. S., 19 Ct. Cls., 497. A retired officer may be employed by the War Department. Yates . U. S., 25 Ct. Cls., 296. Retired officers, as such, do not hold public office. They are in fact pensioners. The position and pay given them constitute a form of pension. They exercise no functions and receive no emoluments of office, but are pensioned for past faithful services or disabilities contracted in the line of duty. Their condition and public office have no characteristics in common. Dig. Opin. J. A. G., par. 2209. See in this connection the act of July 31, 1894 (28 Stat. L., 205), which permits retired officers to hold office to which they have been elected by the people or appointed by the President with the advice and consent of the Senate. See also section 7 of the act of June 3, 1896 (29 Stat. L., 235), which contains the requirement "that section 2 of the act of July 31, 1894 (28 Stat. L., 205), shall not be so construed as to prevent the employment of any retired officer of the Army or Navy to do work under the direction of the Chief of Engineers of the United States Army in connection with the improvement of rivers and harbors of the United States, or the payment by the proper officer of the Treasury of any amounts agreed upon as compensation for such employment." This provision operates to exempt from the terms of the act of July 31, 1894 (sec. 1763, R. S.), all retired officers of the Army or Navy who may be employed by the Engineer Department upon works of river and harbor improvement.

A retired officer of the Army “holds a lucrative office," and so is ineligible, under the constitution of Texas, to hold civil office in that State. State . DeGress, 53 Texas, 387. See, also, Hill. Territory, 2 Wash., 147.

A retired officer of the Army is not ineligible to hold an appointment to a civil office. XIX Opin. Att. Gen., 283; XV ibid., 306; Meigs . U. S., 19 Ct. Cls. 497; Converse r. U. Ŝ., 21 How., 464; U. S. v. Brindle, 110 U. S., 688; Ú. S. v. Saunders, 120 U. S., 126.

employed they shall receive the full pay and allowances of their grades. Sec. 7, act of March 2, 1899 (30 Stat. L., 979).

Adjutant-Gen

militia.

June 6, 1900, v.

31, p. 671.

1323. The President of the United States may detail as eral of District Adjutant-General of the District of Columbia Militia any retired officer of the Army who may be nominated to the President by the Brigadier-General commanding the District of Columbia Militia, said retired officer while so detailed to have the active service pay and allowances of his rank in the Regular Army. Act of June 6, 1900 (31 Stat. L., 671).

two

offices by persons

forbidden.

1894, v. 28, p. 205.

1324. No person who holds an office the salary or annual Holding compensation attached to which amounts to the sum of two receiving $2,500 thousand five hundred dollars shall be appointed to or hold. 2, July 31, any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers Retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office, by and with the advice and consent of the Senate. Sec. 2, act of July 31, 1894 (28 Stat. L., 205).

excepted.

re

tired officers pro

July 1, 1898, v.

1325. Hereafter no allowance or compensation for clerks, Clerks to or secretaries of officials of the United States retired from hibited.. active service shall be authorized. Act of July 1, 1898 30 p. 644.. (30 Stat. L., 644).

RESIGNATIONS.

on tender of res

ignation.

49 Art. War.

1326. Any officer who, having tendered his resignation, Leaving post quits his post or proper duties, without leave, and with intent to remain permanently absent therefrom, prior to due notice of the acceptance of the same, shall be deemed and punished as a deserter. Forty-ninth Article of War.

A valid resignation and an unconditional acceptance of it, accompanied by proper notification of it, operate to remove an officer from the military service. Bennett v. U. S., 19 Ct. Cls. 379. And a new appointment is required to restore him to the office. XII Opin. Att. Gen., 555. An immediate and unconditional resignation severs, absolutely, an officer's connection with the Army. Turnley v. U. S., 24 Ct. Cls., 317. It has been held by a United States court that "a civil officer has a right to resign his office at pleasure, and it is not in the power of the Executive to compel him to remain in office." In a case of a military officer, however, this right is subject to certain restrictions growing out of the military status. Thus, while in time of peace, an officer of the Army, in good standing, is in general entitled to tender and have accepted his resignation, yet in time of war, or when grave embarrassment to the service or prejudice to discipline may result from his leaving his duty, the acceptance of his resignation may properly be refused. And so, where he has tendered his resignation while under charges, and a failure of justice might result from allowing him to evade trial. Dig. Opin. J. A. G., 662.

A military officer who has tendered his resignation, but who continues in service, doing actual duty, is entitled to pay up to the time he is notified of the acceptance of his resignation. Barger v. U. S., 6 Ct. Cls., 35; Dig. Opin. J. A. Gen., 662, 663.

A mere offer to resign or tender of resignation is revocable at any time before accept

Accepting diplomatic or consular office.

1327. Any officer of the Army who accepts or holds any Mar. 30, 1868, c. appointment in the diplomatic or consular service of the 38, s. 2. v. 15, p.58. Government shall be considered as having resigned his place in the Army, and it shall be filled as a vacancy.1

Sec. 1223, R.S.

dismissed officers.

July 20, 1868, c.

DISMISSAL.

Restoration of 1328. No officer of the Army who has been or may be dismissed from the service by the sentence of a general 185, v. 15, p. 125. court-martial, formally approved by the proper reviewing authority. shall ever be restored to the military service, except by a reappointment confirmed by the Senate.

Sec. 1228, R.S.

ance.

But after an acceptance, and before effect has been given to the same by notice, the offer can not be withdrawn, or materially modified by the act of the officer alone, but the consent of the appointing power is also necessary. Dig. Opin. J. A. G., 663. A resignation to take effect at a future date may, with the consent of the appointing power, provided no new rights have intervened, be withdrawn before the time when the resignation was to take effect, and the officer will continue to be an officer de jure thereafter. 1 Compt. Dec., 8; Bunting v. Willis, 27 Gratt., 144; Biddle r. Willard, 10 Ind., 62; State v. Van Buskirk, 56 Mo., 17; People v. Porter, 6 Cal., 26. See, also, Badger v. U. S., 93 U. S., 599; U. S. v. Wright, 1 McLean, 509.

The acceptance of an officer's resignation becomes operative and severs him from the military service upon his receiving either actual or constructive notice of such acceptance. Dig. Opin. J. A. G., 663.

While a tender of his resignation by an insane officer is, in general, without legal effect, and incapable of being legally accepted, yet where a resignation so tendered was, in the absence, at the War Department, of any knowledge of his insanity, formally accepted, held that the acceptance could not be legally revoked, and that the appointment to the vacancy was valid and operative. Dig. Opin. J. A. G., 663. When an officer tenders his resignation, and the question of his sanity is passed upon by his commanding officer, and it is by him determined that he is of sane mind, a court can not reexamine the question. Blake . U. S., 13 Ct. Cls. 402.

Where an officer appointed during a recess of the Senate, after taking the oath of office, and notifying the Department of his acceptance, is ordered to return the appointment, his obeying the order is not a resignation. O'Shea v. U. S., 28 Ct. Cls., 392. An officer who places his conditional resignation in the hands of his commanding officer, to be forwarded by that officer upon a breach of the said condition, of which breach such commanding officer is to be the judge, and authorizes him to insert a date in such resignation and to forward it for acceptance, is held to have made a valid tender of his resignation, and, upon its acceptance by the President, such officer ceases to be an officer of the Army. Mimmack v. U. S., 97 U. S., 426, 436; XII Opin. Att. Gen., 555.

If an officer's connection with the service has been legally severed by resignation, dismissal, or otherwise, he can again enter only by the appointment of the President, with the consent of the Senate. Montgomery . U. S., 19 Ct. Cls., 338; Miller r. U. S., ibid., 338; Mimmack v. U. S., 97 U. S., 426; McElrath v. U. S., 102 U. S., 426; Blake r. U. S., 103 U. S., 227; Keyes v. U. S., 109 U. S., 336, 339.

'The act of March 30, 1868, 15 Stat. L., 58, which is embodied in section 1223 of the Revised Statutes, applied to officers on the retired as well as on the active list, and it made the acceptance of the diplomatic vacate the military office eo instanti; the vacancy thus created necessarily continuing until filled in the usual way. XIX Opin. Att. Gen., 610.

2 Dismissal by Executive order is quite distinct from dismissal by sentence. The latter is a punishment; the former is removal from office. The power to dismiss, which, as being an incident to the power to appoint public officers, had been regarded since 1789 as vested in the President by the Constitution, was for the first time, by section 5 of the act of July 13, 1886 (reenacted in the second clause of the present ninetyninth article of war and in section 1229, Revised Statutes), expressly divested by Congress, in so far as respects its exercise in time of peace. By the statute it is now authorized only in time of war. Dig. Opin. J. A. G., par. 1203.

The practical results of this statute, in connection with other provisions of law bearing upon the subject, are these: That in time of war the President may dismiss

for desertion. Art. of War 99. Art. of War 106.

July 15, 1870, c. 319; July 13, 1866,

294, s. 17, v, 16, p.

c. 176, s. 5, v. 14, p.

1329. The President is authorized to drop from the rolls officers dropped of the Army for desertion any officer who is absent from duty three months without leave; and no officer so dropped shall be eligible for reappointment. And no officer in the military or naval service shall in time of peace be dis- 92. missed from service except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof.1

Sec. 1229, R.S.

dis

1330. When any officer, dismissed by order of the Presi- Officers missed by President, makes, in writing, an application for trial, setting dent

may de

mand trial.

an officer from service at any moment and for any cause; that in time of peace he may dismiss him for cause, with the cooperation of a court-martial; or remove him without cause with the consent of the Senate. Street v. U. S., 24 Ct. Cls., 248; Blake v. U. S., 103 U. S., 227; McElrath c. U. S., 102 U. S., 426; Fletcher v. U. S., 26 Ct. Cls., 541.

The President has the power to remove an officer of the Army by the appointment of another in his place, by and with the advice and consent of the Senate, and such power is not withdrawn by the provisions of section 5 of the act of July 13, 1866 (section 1229, Revised Statutes), and this provision does not restrict the power of the President, by and with the advice and consent of the Senate, to displace officers of the Army and Navy by the appointment of others in their places. Keyes r. U. S., 109 U. S., 336, 339; Blake r. Ú. S., 103 U. S., 227; McElrath . U. S., 103 U. S. 426; Mimmack v. U. S., 97 U. S., 426; Ú. S. c. Corson, 114 U. S., 619; Montgomery v. U. S., 19 Ct. Cls., 370; Bonnett v. U. S., ibid., 379; Palen v. U. S., ibid., 389; McBlair c. U. S., ibid., 528; Vanderslice v. U. S., ibid., 480; XV Opin. Att. Gen., 407. The jurisdiction to find and determine the fact of desertion, under this section, is vested in the President alone, and his decision thereon can not be reviewed by the courts. Newton . U. S., 18 Ct. Cls., 435. The discharge of an officer does not relieve the Government from its obligations until he is notified of the fact and actually discharged from service. Gould . U. S., 19 Ct. Cls., 593. A summary dismissal of an officer does not properly take effect until the order of dismissal or an official copy of the same is delivered to him, or he is otherwise officially notified of the fact of his dismissal. Dig. Opin. J. A. G., par. 1204. A dismissal of an officer by Executive order does not operate to disqualify him for reappointment to military office, or for appointment to civil office under the United States. Ibid, 370, par. 7. 2 Dismissal by Executive order is quite distinct from dismissal by sentence. The latter is a punishment: the former is removal from office. The power to dismiss, which, as being an incident to the power to appoint public officers, had been regarded since 1789 as vested in the President by the Constitution, was, for the first time in 1866 (by the act of July 13th of that year, re-enacted in the second clause of the present 99th Article of War and in sec. 1229, Revised Statutes), expressly divested by Congress in so far as respects its exercise in time of peace. By the statute law it is now authorized only in time of war. During the late war it was exercised in a great number of cases, sometimes for the purpose of suminarily ridding the service of unworthy officers, sometimes in the form of a discharge or muster out of officers whose services were simply no longer required. The distinction between this species of dismissal and dismissal by sentence is illustrated by the fact that the former has, with the sanction of legal authority, been repeatedly ordered in cases where a court-martial has previously acquitted the officer of the very offenses on account of which the summary action has been resorted to. Dig. Opin. J. A. Gen., par. 1203. See also VII Opin. Att. Gen., 251; Commonwealth . Bussier, 5 Sergt. & Rawle, 461; Ex parte Hennen, 13 Peters, 258, 259; United States . Guthrie, 17 Howard, 307; IV Opins. of Attys. Gen., 1, 609-613; VI Id., 5-6; VII Id., 251; VIII Id., 230–232; XII Id., 424-426; Sergeant's Const. Law, 373; 2 Story's Cons., § 1537, note; 1 Kent's Coms., 310; 2 Marshall's Washington, 162.

The Executive, in summarily dismissing an officer, can not at the same time deprive him of pay due. Nor can the right of an officer to his pay for any period prior to a summary dismissal ordered in his case be divested by a dating back of the order of dismissal. Such an order can not be made to relate back so as to affect the status or rights of the officer as they existed before the date of the taking effect of the dismissal. Dig. Opin. J. A. G., par. 1213.

H. Doc. 545-32

C.

Mar. 3, 1865, c. forth, under oath, that he has been wrongfully dismissed,

79, s. 12, v. 13, p.

489; June 22,1874, the President shall, as soon as the necessities of the service

c. 392, s. 2, v. 18.

p. 192.

Sec. 1230, R.S. may permit, convene a court-martial, to try such officer on the charges on which he shall have been dismissed. And if a court-martial is not so convened within six months from the presentation of such application for trial, or if such court, being convened, does not award dismissal or death as the punishment of such officer, the order of dismissal by the President shall be void.1

MISCELLANEOUS PROVISIONS RESPECTING COMMISSIONED OFFICERS.

Par.

1331. Officers not to be employed on civil works, etc.

1332. Accepting civil office.

1333. Details as Indian agents.

Duties upon

which officers of

to be employed.

Par.

1334. Discharge of supernumerary offi

cers.

1335. Enlisted men not to be used as servants.

1331. No officer of the Army shall be employed on civil the Army are not works or internal improvements, or be allowed to engage Feb. 27, 1877, v. in the service of any incorporated company, or be employed Sec. 1224, R. S. as acting paymaster or disbursing agent of the Indian

19, p. 243.

Department, if such extra employment requires that he shall be separated from his company, regiment, or corps, or if it shall otherwise interfere with the performance of the military duties proper. Act of February 27, 1877 (19 Stat. L., 243).

This statute was held by the Attorney-General (XII Opins., 4) not to be unconstitutional, in that it was not obnoxious to the objection that it invades or frustrates the power of the President to dismiss an officer." More serious objections to its constitutionality are believed to be: 1, that it authorizes the subjecting to military trial of a civilian; 2, that in restoring an officer to the Army it substitutes the action of a court-martial for the appointing power of the President.

The statute does not indicate within what period after the dismissal the application for a trial should be made. It can only be said that, in preferring it, due diligence should be exercised-that it should be presented within a reasonable time. Held, That a party who (without any sufficient excuse) delayed for nine years to apply for a trial under the statute might well be regarded as having waived his right thereto. [IV Opin. Att. Gen., 170; V Ibid., 384.] It could scarcely have been contemplated by Congress that a dismissed officer should be at liberty to defer his application for a trial till the evidence on which he was dismissed or a material part of the same had ceased to exist, and his restoration would thus be made certain. Dig. Opin. J. A. G., par. 1219.

Though it may be sufficient that the application made under the statute should state simply that the applicant has been "wrongfully dismissed, the preferable form would be for the applicant to set forth in what the alleged wrong consisted. Ibid., par. 1220.

To take advantage of the benefit conferred by this section the officer must apply for trial within a reasonable time after dismissal, or acquiescence will be presumed. A delay of nine years in a particular case held to create such presumption of acquiescence. Newton e. U. S., 18 Ct. Cls., 435; Germaine r. U. S., 26 ibid., 383.

Where the President is authorized by law to reinstate a discharged army officer, he may do so without the advice and consent of the Senate. Collins e. U. S., 15 Ct. Cls., 22. For a list of officers so reinstated see Collins Case, 14 Ct. Cls., 568, 571.