US SUPREME COURT DECISIONS

1. An officer of the army or the navy was, June 20, 1866, subject to summary dismissal from the service by order of the President.

2. On the twenty-seventh day of June, 1866, the President nominated to the Senate A. to be a first lieutenant in the Marine Corps from the twentieth day of that month, vice B. dismissed. The Senate advised and consented to the appointment agreeably to the nomination, and A. was commissioned July 13, 1866. Held that such appointment, followed by a commission, operated to discharge B. from the service as effectually as if he had been dismissed by the direct order of the President.

3. So much of sec. 5 of the Act of July 13, 1866, 14 Stat. 02, as provides that

"No officer in the military or naval service shall, in time of peace, he dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect or in commutation thereof,"

did not take effect before Aug. 20, 1866, on which day, in contemplation of law, the rebellion against the national authority was suppressed and peace restored.

4. Upon the settlement of his accounts by the accounting officers of the treasury, B., while announcing that he would not be concluded thereby, and protesting that the allowance was insufficient, received it and brought suit in the Court of Claims to recover the balance claimed. Held that the United States is not bound by the settlement, but for any moneys improperly paid him in pursuance thereof is entitled to judgment.

5. The provision of the Act of March 3, 1863, 12 Stat. 765 Rev.Stat. sects. 1059-1061, authorizing that court, without the intervention of a jury, to hear and determine claims against the government and also any setoff, counterclaim, claim for damages, or other demand on the part of the government against the claimant does not violate the Seventh Amendment of the Constitution.

APPEAL from the Court of Claims.

On the 5th of June, 1866, Thomas L. McElrath transmitted to the Secretary of the Navy his resignation as a first lieutenant in the Marine Corps. By an official communication from the Navy Department, dated June 19, 1866, and signed by Mr. Welles, as Secretary of the Navy, he was notified that the chanrobles.com-redchanrobles.com-red

Page 102 U. S. 427

department declined to accept his resignation, the Secretary adding, "As you deserted from the Monogahela on the eve of her sailing for the West Indies, you are hereby dismissed from the service from this date." The President, June 27, 1866, nominated to the Senate for appointment Second Lieutenant George B. Haycock of the Marine Corps to be a first lieutenant in that corps, from June 20, 1866, "vice Thomas L. McElrath, dismissed." To that appointment the Senate gave its advice and consent, and Haycock was accordingly commissioned, July 13, 1866, to be first lieutenant, on the active list, from June 20, 1866. Thus matters stood until May 14, 1873, when McElrath made a formal application to the department for the revocation and annulment of the order of dismissal of June 19, 1866, submitting therewith evidence tending to show that he was not a deserter, as charged in the order of that date. Pending that application, he tendered, July 10, 1873, his resignation as a first lieutenant in the Marine Corps. On the same day, Mr. Robeson, then Secretary of the Navy, notified him, in writing, that "the order of June 19, 1866, dismissing you [him] from the service, is hereby revoked, having been issued under a mistake of facts." The Secretary added: "You are thus restored to the position which you held at the date of that order. The resignation which you now tender is accepted, to take effect this day."

On the eighth day of January, 1874, the claimant was further notified, in writing, by the Secretary of the Navy, as follows:

"Your dismissal from the Marine Corps as a first lieutenant, dated 19th of June, 1866, is revoked, and your resignation as a first lieutenant in that corps, tendered in your letter of the 10th of July, 1873, is accepted from that date."

Why this second notification was given is not explained, and, in the view which the Court takes of the case, it is not material to inquire.

In January, 1874, the claimant made application to the Fourth Auditor of the Treasury for the settlement of his account as first lieutenant in the Marine Corps. That officer, upon examination and settlement of the account, certified to the Second Comptroller that the sum due to the claimant was $6,106.53, being the amount of the half-pay and allowances of chanrobles.com-redchanrobles.com-red

Page 102 U. S. 428

a first lieutenant of marines from June 21, 1866, to July 10, 1873, inclusive. The Second Comptroller, having examined the Auditor's settlement, certified its correctness to the Secretary of the Navy, who issued his requisition, properly countersigned, upon the Secretary of the Treasury requesting a warrant in behalf of the claimant for the amount so ascertained. A warrant was accordingly issued, and that sum was paid to the claimant, who, at the time he received it, declared his belief that the sum was not the entire amount due him, and that he accepted the same under protest, and should hold himself in no manner concluded as to the remaining sum claimed to be due him.

All of the foregoing facts, and the further fact that the number of first lieutenants in the Marine Corps, from June 5, 1866, to July 10, 1873, was thirty, were known to the Fourth Auditor, the Comptroller, and the Secretary of the Navy when they respectively acted upon the claimant's account.

It also appears that, from June 19, 1866, to June 10, 1873, he was engaged in business in New York, earning $30 per week. In other words, he earned in private business, when not performing service in the navy, during the above period, more than $10,000.

The present action is by McElrath to recover from the United States the balance, nearly $7,000, alleged to be due him on account of pay and allowances as a first lieutenant in the Marine Corps of the United States. The government, denying its indebtedness to him in any sum whatever, set up a counterclaim for the sum of $6,106.53, which, it contends, was paid to him by the accounting officers of the Treasury Department without warrant of law. A judgment was rendered in favor of the United States therefor, and he appealed.

He assigns for error that the Court of Claims erred in holding: 1. that the order of June 19, 1866, was the order of the President, and that the latter dismissed him from the Marine Corps from that date; 2. that he was not entitled to pay and allowance from June 21, 1866, to July 10, 1873; 3. that, in a suit brought in the Court of Claims against the United States, the latter can recover on a counterclaim a judgment against a claimant further than is necessary to defeat his claim; 4. that a counterclaim by the United States in the chanrobles.com-redchanrobles.com-red

Page 102 U. S. 429

Court of Claims which seeks an affirmative judgment for more than twenty dollars is not a suit at common law within the meaning of the Seventh Amendment to the Constitution; and that so much of sec. 3 of the Act of March 3, 1863, 12 Stat. 765, as purports to confer on said court power to render such judgment, is not in violation of the Constitution; and that no part of the proceedings in this case constituted or belonged to a suit at common law within that amendment; 5. that the United States under the counterclaim could recover of the appellant the sum paid to him by the accounting officers of the treasury as half-pay and allowances for the period; viz., $6,106.53. chanrobles.com-redchanrobles.com-red

Page 102 U. S. 435