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1209. Where the successors of eighty-two volunteer officers of the civil war, sentenced to be dismissed, were, pending action on their cases by the President, appointed, with the advice and consent of the Senate, it was held, that the latter under the ruling in the Blake case ceased to be officers of the army after such appointments were made: and this independently of the fact that the court-martial proceedings had never actually been approved or confirmed in whole or in part by the President as required by the Articles of War to give effect to the sentences of dismissal. 24, 7, April, 1888.

1210. Where, by the direction of the President, an order was issued cancelling the muster-in of a volunteer officer on account of facts indicating that he was not a fit person to hold a commission, held that this was, in effect, a legal exercise of the authority of summary dismissal for cause, vested in the President by the act of July 17, 1862. 61, 264, August, 1893.

The President had not the same power of dismissal in the case of a volunteer officer as he has in that of a regular officer. This for the reason that the tenure of office of the former is for a fixed term and for a limited time only: the power to dismiss is thus, in his case, not an incident of the appointing power.' But the President was invested with a special power of dismissal of volunteer officers by the act of Congress of July 17, 1862. 46, 102, March, 1891; 52, 496, March,

1892.

1211. Held that it could not affect the operation of an order summarily dismissing an officer as "second lieutenant," that, before its being communicated to him by being promulgated to the regiment, he had become by promotion a first lieutenant. VI, 558, November, 1864.

1212. 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. XXXVI, 330, March, 1875.

1213. The Executive, in summarily dismissing an officer, cannot 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 bis case, be divested by a dating back of the order of dismissal. Such an order cannot 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. VI, 379, 405, September and October, 1864; X, 1, 4, July, 1864; XVII, 670, May, 1866; XXXI, 125, January, 1871; XXXV, 112, January 1874; XLII, 73, December, 1878; 470, July, 1880.

1 See Mechem on Public Officers, p. 283, § 445. But see Parson's case, 30 Ct. Cls.,

1214. There can be no revocation of a duly executed order of dismissal, however unmerited or injudicious the original act may be deemed to have been. For distinct as dismissal by order is, in its nature, from dismissal by sentence (see § 1203 ante), the effect of the proceeding in divesting the office is the same in each case. An officer dismissed by an order, though his dismissal may have involved no disgrace, is assimilated to an officer dismissed by sentence in so far that he is completely relegated to a civil status, having in law no nearer or other relation to the military service than has any civilian who has never been in the army. Thus an order assuming to revoke a legal order of dismissal is as unauthorized as it is ineffectual. The original dismissal is an act done which cannot be undone, and the order, which is the evidence of it, is therefore incapable of revocation or recall.' Nor can that be affected indirectly which cannot legally be done directly. An officer dismissed by executive order cannot be relieved by being allowed to resign or be retired, or by being granted an honorable discharge. For, in order to be discharged, &c., from the army, he must first be in the army, and there is but one mode by which an officer once legally separated from the army can be put into it, viz: by a new appointment. according to the Constitution. XXXI, 504, July, 1871; XXXV, 392, 466, May and July, 1874; XXXVI, 216, 330, January and March, 1875; XXXVII, 451, April, 1876; XXXVIII, 61, 159, January and July, 1876; XXXIX, 248, October, 1877; 474, March, 1878; XLI, 153, March, 1878; 611, July, 1879; XLII, 73, December 1878; 35, 251, September, 1889; 36, 323, November, 1889; 52, 384, March, 1892; 59, 80, April, 1893; 65, 51, May, 1894; Card 4953, September, 1898.

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1215. That a summary dismissal is not revocable by an executive order is established law. Cards 691, December, 1894; 3735, March, 1898; 4586, July, 1898. Where an officer duly summarily dismissed in July, 1863, and subsequently restored by an order assuming to revoke the order of dismissal, procured to be passed by Congress, in 1890, an act recognizing his restoration as legal, which, however, was vetoed by the President-held that his status was that of a person who had been illegally in the military service since the date of the order of so-called revocation. 44, 120, December, 1890.

1216. While an order assuming to revoke an executed legal order or sentence of dismissal is void and inoperative, yet where such dismissed

A contrary

See 4 Opins. At. Gen., 124; 12 id., 424-8; 14 id., 520; 15 id., 658. view expressed by the Court of Claims, in its earlier period, in a series of casessee Smith v. United States, 2 Ct. Cl., 206; Winters e. United States, 3 id., 136; Barnes . United States, 4 id., 216; Montgomery v. United States, 5 id., 93-was finally practically abandoned in McElrath v. United States, 12 id., 201. See also U. S. v. Carson, 114 U. S., 619.

See 8 Opins. At. Gen., 235; 12 id., 421; 13 id., 5; McElrath e. United States, 12 Ct. Cl., 201. Compare § 1200, ante, and §§ 1218-1224, post.

officer enters upon the duties of the office under the void order, held that he was during the period he thus performed such duties a de facto officer. Card 691, December, 1894; 3735, March, 1898.

1217. Held that it was quite evidently the intention of Congress in the act of July 15, 1870, s. 12, that the commissions held by the officers who remained unassigned on January 1, 1871, should cease on that day. No action on the part of a mustering officer was required to carry the law into effect as is shown by G. O. 1 of January 2, 1871, in which the separation from the service, on January 1, of the unassigned officers was formally announced. 55, 104, August, 1892.

DISMISSAL-BY ORDER: TRIAL IN CASE OF.

1218. Held that the provision on this subject of the act of March 3, 1865, c.79, s. 121 (now Sec. 1230, Rev. Sts.)—referring as it does to officers "hereafter dismissed"-was not retroactive in its operation, and did not embrace cases of officers dismissed by order before the date of its passage. XVI, 631, October, 1865; XX, 518, April, 1866. And similarly held as to the provision now incorporated in Sec. 1230, Rev. Sts.; the same, though somewhat differently worded from the original statute, being construed as not intended to enlarge the application of the latter. XXXVII, 618, June, 1876; XXXVIII, 160, July, 1876.

1219. 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. XVI, 170, May, 1865; Card 4954, January, 1899. 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. 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. XLII, 446, December, 1879.

1220. 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. XVI, 513, August, 1865.

'This statute was held by the Attorney General (12 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 of a civilian to military trial; 2, that in restoring an officer to the army it substitutes the action of a court martial for the appointing power of the President.

2See, to a similar effect, the opinion of the Solicitor General in 16 Opins. At. Gen., 599, 3 See Newton v. U. S., 18 Ct. Cls., 435; Armstrong e. U. S., 26 id., 387.

* Compare 4 Opins. At. Gen., 170; 5 id., 384.

1221. Where a trial of a volunteer officer under this statute resulted in an acquittal, and his original dismissal thus became "void," but meanwhile his regiment had been mustered out of service, held that he was properly entitled to an honorable discharge as of the date of the muster out of the regiment with full pay and allowances up to that time. XII, 659, September, 1865.

1222. It has been repeatedly held and is well settled that with the passing away of the volunteer army of the civil war, each and every officer and enlisted man thereof became a civilian and lost his military status and all connection with the military establishment of the Government, and that laws relating alone to persons in the army are no longer applicable to him. Held, therefore, that officers dismissed by order of the President from such volunteer army can no longer legally be brought before a general court-martial for trial under Section 1230, Rev. Sts. Card 4954, January, 1899.

1223. Under the statute of 1865 there were but few trials; this legislation having been followed in the next year by the provision of the act of July 13, 1866 (now incorporated in the second clause of Sec. 1229, Rev. Sts., and the new 99th Article of War), prohibiting executive dismissals of officers of the army and navy in time of peace. Since the date of this act there have been no trials under the act of 1865: the later statute indeed would appear to have deprived the earlier one of all present application and effect. Thus held, that an officer dropped for desertion under the first clause of Sec. 1229, Rev. Sts., was not entitled, upon application therefor, to a trial under Sec. 1230; that the provision of the former section making such an officer ineligible for re-appointment in the army was incompatible with his restoration by the action of a court martial under the latter section; and that the latter section applied only to officers dismissed by order of the President under the general power to remove public officers appointed by him and frequently exercised in cases of army officers during the war of the rebellion (see § 1203, ante), but which, as to its exercise in time of peace, had been divested by Congress by the act of July 13, 1866. XLII, 446, December, 1879.

1224. Although the act provides that if the sentence of the court be not one of death or dismissal the party tried shall be restored to his office, yet held, in a case in which the court acquitted the accused, that the President possessed the authority, vested in reviewing officers in all other cases tried by court martial, of returning the proceedings to the court for revision (see REVISION), and was therefore empowered to re-assemble the court for a reconsideration of the testimony, on the ground that the same did not, in his opinion, justify the acquittal. XIX, 191, November, 1865,

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DISQUALIFICATION.

1225. Disqualification, or incapacity to hold office under the United States, is a punishment certainly sanctioned by precedent in the military service. Being a continuing punishment, it may of course be removed by a remission of the same by the pardoning power at any time during the life of the party. (See PARDON.) XXXI, 24. November, 1870; XLI, 158, March, 1878; XLII, 636, May, 1880.

1It is indeed specifically authorized in two articles of war, Nos. 6 and 14 (providing for the punishment of false muster and like offences), but is here apparently intended not as an independent punishment but as a penal consequence incident upon conviction and sentence of dismissal. As a distinctive punishment, however, it has been imposed in many cases, and has apparently been regarded as a particularly suitable penalty in cases of embezzlement of public funds or other fraud upon the Government.

Instances of sentences, including (generally with dismissal) the punishment of disqualification, are to be found in the following orders of the War Department (or Hdqrs. of Army), published before the civil war, the instances being none of them cases of conviction of false muster: G. O. of April 2, 1818; do. of Sept. 25, 1819; do. 71 of 1829; do. 15 of 1860. The infrequency of this punishment in the early orders may perhaps be owing in part to the fact that it was considered that "cashiering”—a sentence often then adjudged-involved disqualification. Similar instances of the same punishment occur in the following Orders issued from the War Department during and since the civil war: G. O. 18, 94, 159, 184, 242, 249, 332, 389, of 1863, do. 36, 51, 69, of 1864; G. C. M. O. 175, 251, 277, 369, 395, 404, of 1864; do. 6, 46, 85, 125 201, 205, 219, 232, 238, 260, 270, 315, 365, 397, 432, 541, 565, 584, 602, 649, of 1865 do. 22, 68, 82, 89, 111, 161, 181, of 1866; do. 21, 52, 56, 62, 89, 91, 98, of 1867; do. 2, 58, of 1868; do. 44 of 1869; do. 14, 15, of 1870. Instances of this punishment have also been noted in the following orders issued from the military departments, armies, &c.: G. O. 60, 64, 76, 86, 89, 99, 106, of 1863; do. 2, 4, 20, 24, 28, 30, 32, 51, of 1864; do. 9, 12, of 1865-Army of the Potomac. G. O. 18, 81, of 1864; do. 11, of 1865—Dept. of the East. G. O. 81 of 1864-Dept. of Pennsylvania. G. O. 96 of 1864; do. 23, 27, of 1865-Middle Department. G. O. 22 of 1865-Middle Military Division. G. O. 15 of 1863; do. 30 of 1865-Dept. of West Virginia. G. O. 34, 113, 175, of 1864; do. 49, 82, of 1865-Dept. of Virginia and North Carolina. G. O. 32, 33, of 1864-Dept. of the Ohio. G. 0.19 of 1865-Dept. of Kentucky. G. O. 17, 21, 33, of 1863-Dept. of the Tennessee. G. O. 3 of 1863; do. 6, 22, of 1864-Dept. and Army of the Tennessee. G. O. 14 of 1865; do. 5 of 1866-Dept. of Tennessee. G. O. 21 of 1863; do. 24 of 1864; do. 77, 112, of 1865-Dept. of the Missouri. G. O. 8 of 1866-Dept. of Florida. G. O. 67 of 1863; do. 74, of 1865-Dept. of the Gulf. G. O. 55 of 1864-Mil. Div. of W. Mississippi. G. O. 87 of 1867-Second Mil. Dist. This punishment, however, has, since 1870, been discontinued in the practice of our courts martial, and this discontinuance is to be traced to the ruling of the Attorney General in an opinion addressed to the Secretary of the Navy in 1868 (12 Opins. 528) to the effect that a sentence of a naval court martial by which a contractor for naval supplies was excluded from future dealings for such supplies with the Government, was illegal; sentences of disability in general being further held to be "not in accordance with the custom of the service except where expressly authorized by law." This ruling was applied to a military case in G. C. M. O. 22 (as also in do. 57,) to War. Dept., &c., of 1870, and the punishment of disqualification imposed upon an officer disapproved as unauthorized. But whatever may have been the usage of naral courts martial, the very numerous precedents of cases in which such punishment had been adjudged by military courts for a great variety of offences, were, it is considered, quite sufficient to have established that this penalty was sanctioned by custom in the army. In some instances the disqualification, as adjudged, has extended to the holding of public office in general; in others it has been confined to the holding of military office. But, while the disqualification for military office is less objectionable than the more general form, it may well be doubted whether this species of punishment, inasmuch as it assumes in effect to inhibit the exercise by the Executive of the appointing power, is within the authority of a court martial. As will be perceived from the above, this punishment has been discontinued in our service, but on another and less tenable ground.

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