The provision in the Naval Appropriation Act of August 5, 1882,
c. 391, § 1, which directs in certain cases the honorable
discharge of naval cadets from the navy with one year's sea pay is
not in conflict with the contract clause of the Constitution of the
United States.
An officer in the army or navy of the United States does not
hold his office by contract, but at the will of the sovereign
power.
It is not within the power of a legislature to deprive its
successor of the power of repealing an act creating a public
office.
This is an action brought by the appellant, James D. Crenshaw,
in the Court of Claims for the purpose of recovering an alleged
balance of $3,763.66 due him on account of salary as a midshipman
in the United States Navy. The Court of Claims dismissed the
appellant's petition, 24 Ct.Cl. 57, and an appeal from that
judgment brings the case here.
Page 134 U. S. 100
The material facts in the case are as follows:
In September, 1877, the appellant was appointed a cadet
midshipman at the Naval Academy. At that time, the provisions of
the Revised Statutes in force and pertinent to this inquiry were as
follows:
"SEC. 1520. The academic course of cadet midshipmen shall be six
years."
"SEC. 1521. When cadet midshipmen shall have passed successfully
the graduating examination at the academy, they shall receive
appointments as midshipmen, and shall take rank according to their
proficiency, as shown by the order of their merit at date of
graduation."
"SEC. 1556. The commissioned officers and warrant officers on
the active list of the Navy of the United States, and the petty
officers, seamen, . . . shall be entitled to receive annual pay at
the rates herein stated after their respective designations: . . .
Midshipmen, after graduation, when at sea, one thousand dollars; on
shore duty, eight hundred dollars; on leave, or waiting orders, six
hundred dollars. Cadet midshipmen, five hundred dollars."
"SEC. 1229. The President is authorized to drop from the rolls
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 dismissed from service except
upon and in pursuance of the sentence of a court-martial to that
effect or in commutation thereof."
The appellant accepted the appointment, and entered on his
studies at the academy. He completed the course of four years and,
after passing a successful examination, received a certificate from
the academic board in the following words, to-wit:
"This certifies that Cadet Midshipman James D. Crenshaw has
completed the prescribed course of study at the United States Naval
Academy, and has successfully passed the required examination
before the academic board preparatory to the two-years course
afloat. June 10, 1881. "
Page 134 U. S. 101
On the 25th of August following, appellant was ordered to sea by
the Navy Department, and directed to report for duty on board the
steamer
Pensacola. This he did. While he was serving on
that steamer under the aforesaid order, Congress passed an Act,
approved August 5, 1882, being the naval appropriation act, in
which occurs this proviso:
"That hereafter there shall be no appointments of cadet
midshipmen or cadet engineers at the Naval Academy, but in lieu
thereof, naval cadets shall be appointed from each congressional
district, and at large, as now provided by law for cadet
midshipmen, and all the undergraduates at the Naval Academy shall
hereafter be designated and called 'naval cadets,' and from those
who successfully complete the six-years course, appointments shall
hereafter be made as it is necessary to fill vacancies in the lower
grades of the line and engineer corps of the navy and of the marine
corps,
and provided further that no greater number of
appointments into these grades shall be made each very than shall
equal the number of vacancies which has occurred in the same grades
during the preceding year, of vacancies which has occurred in the
graduates of the year at the conclusion of their six-years course,
in the order of merit, as determined by the academic board of the
Naval Academy, the assignment to the various corps to be made by
the Secretary of the Navy upon the recommendation of the academic
board. But nothing herein contained shall reduce the number of
appointments from such graduates below ten in each year, nor
deprive of such appointment any graduate who may complete the
six-years course during the year eighteen hundred and eighty-two.
And if there be a surplus of graduates, those who do not receive
such appointment shall be given a certificate of graduation, an
honorable discharge, and one year's sea pay, as now provided by law
for cadet midshipmen,"
etc. 22 Stat. 284, 285.
As stated above, this statute was passed while appellant was
engaged in his service on the
Pensacola. He continued on
that vessel until the 14th of March, 1883, when he was ordered to
report to the Superintendent of the Naval Academy
Page 134 U. S. 102
for examination. He proceeded to the academy, passed his final
examination successfully, and, on the 15th of June, 1883, received
from the academic board his certificate of graduation, reciting
that
"We, the academic board of the United States Naval Academy,
having thoroughly examined Naval Cadet James D. Crenshaw on all
subjects, theoretical and practical, taught at this institution,
and having found him proficient in each, do hereby, in conformity
with the law, grant to him this certificate of graduation. June 15,
1883."
On the 23d of June following, he received this order:
"
Navy Department, Bureau of Navigation and Office of
Detail"
"Washington, June 23, 1883"
"Sir: You are hereby detached from the Naval Academy. Proceed
home, and regard yourself waiting orders."
"By direction of the Secretary of the Navy."
"Respectfully,"
"J. E. WALLER,
Chief of Bureau"
On the 26th of the same month, an order as follows was
issued:
"Sir: Having successfully completed your six years' course at
the United States Naval Academy, and having been given a
certificate of graduation by the academic board, but not being
required to fill any vacancy in the service happening during the
year preceding your graduation, you are hereby discharged from the
30th of June, 1883, with one year's sea pay as prescribed by law
for cadet midshipmen, in accordance with the provisions of the Act
approved August 5, 1882."
"Respectfully, W. E. CHANDLER,
Secretary of the
Navy"
"Naval Cadet James D. Crenshaw, U.S. Navy."
Since the date of that order, appellant has not been called on
to do duty, and has not received any pay except that credited on
his claim. In this state of the case, he claims that he is still a
midshipman in the naval service, and, as such, entitled to pay.
This claim is based upon the following propositions:
Page 134 U. S. 103
(1) That when he accepted the appointment of cadet midshipman,
he became an officer of the navy, and, as such, entitled to the
benefits of section 1229, and Art. 36 of section 1624 (which is to
the same effect) of the Revised Statutes; that such acceptance
constituted a statutory contract with the United States, based on a
valuable consideration, under which he is entitled to hold the
office for life unless removed by sentence of a court-martial or in
commutation thereof.
(2) That he was not therefore discharged by competent authority,
because, first, since the reenactment by Congress, in 1874, of
section 1229 and Art. 36 of section 1624 of the Revised Statutes,
neither Congress, the Secretary of the Navy, nor any department of
the government is competent, in time of peace, to discharge an
officer from the naval service.
(3) That independently of the Act of July 13, 1866, 14 Stat. 92,
c. 176, § 5 (section 1229 and Art. 36 of section 1624
aforesaid), the act of 1882 is unconstitutional as applied to him
for the reason that he held an office by contract with the United
States and was entitled on graduation to be a midshipman to serve
for life or during good behavior.
(4) That not only was the Act of August 5, 1882, inoperative as
to him for the reason stated, but also for the further reason that
to apply it to his class would be to make Congress appoint to the
office of naval cadet all such students as were in his situation;
but that, while Congress had the power under the Constitution to
create the office, it did not have the power to designate the
officers, that being the constitutional duty of the executive,
and
(5) that the case of appellant did not fall within the terms of
the act of 1882; that he was not at the date of its passage an
undergraduate of the academy, but had graduated, and that therefore
his discharge was not authorized by that act.
MR. JUSTICE LAMAR, after stating the facts as above, delivered
the opinion of the Court.
Page 134 U. S. 104
The primary question in this case -- one which underlies the
first, second, and third of appellant's propositions, stated above
-- is whether an officer appointed for a definite time or during
good behavior had any vested interest or contract right in his
office of which Congress could not deprive him. The question is not
novel. There seems to be but little difficulty in deciding that
there was no such interest or right. The question was before this
Court in
Butler v.
Pennsylvania, 10 How. 402. In that case, Butler and
others, by virtue of a statute of the State of Pennsylvania, had
been appointed canal commissioners for a terms of one year, with
compensation at four dollars
per diem, but during their
incumbency another statute was passed whereby the compensation was
reduced to three dollars, and it was claimed their contract rights
were thereby infringed. The Court drew a distinction between such a
situation and that of a contract, by which "perfect rights, certain
definite, fixed, private rights of property, are vested." It
said:
"These are clearly distinguishable from measures or engagements
adopted or undertaken by the body politic or state government for
the benefit of all, and, from the necessity of the case and
according to universal understanding, to be varied or discontinued
as the public good shall require. The selection of officers, who
are nothing more than agents for the effectuating of such public
purposes, is matter of public convenience or necessity, and so too
are the periods for the appointment of such agents; but neither the
one nor the other of these arrangements can constitute any
obligation to continue such agents or to reappoint them after the
measures which brought them into being shall have been found
useless, shall have been fulfilled, or shall have been abrogated as
even detrimental to the wellbeing of the public. The promised
compensation for services actually performed and accepted during
the continuance of the particular agency may undoubtedly be
claimed, both upon principles of compact and of equity, but to
insist beyond this on the perpetuation of a public policy either
useless or detrimental and upon a reward for acts neither desired
nor performed would appear to be reconcilable with neither common
justice nor common sense. The establishment of such
Page 134 U. S. 105
a principle would arrest, necessarily, everything like progress
or improvement in government, or if changes should be ventured
upon, the government would have to become one great pension
establishment on which to quarter a host of sincecures. . . . It
follows, then, upon principle that in every perfect or competent
government there must exist a general power to enact and to repeal
laws and to create and change or discontinue the agents designated
for the execution of those laws. Such a power is indispensable for
the preservation of the body politic and for the safety of the
individuals of the community. It is true that this power or the
extent of its exercise may be controlled by the higher organic law
or constitution of the state, as is the case in some instances in
the state constitutions, and as is exemplified in the provision of
the federal Constitution relied on in this case by the plaintiffs
in error and in some other clauses of the same instrument; but
where no such restriction is imposed, the power must rest in the
discretion of the government alone. . . . We have already shown
that the appointment to and the tenure of an office created for the
public use, and the regulation of the salary affixed to such an
office, do not fall within the meaning of the section of the
Constitution relied on by the plaintiffs in error -- do not come
within the import of the term 'contracts,' or, in other words, the
vested, private, personal rights thereby intended to be protected.
They are functions appropriate to that class of powers and
obligations by which governments are enabled, and are called upon
to foster and promote the general good -- functions, therefore,
which governments cannot be presumed to have surrendered, if indeed
they can under any circumstances be justified in surrendering
them."
The case of
Newton v. Commissioners, 100 U.
S. 548, is in point. That was a controversy over the
projected removal of a county seat, and the statute relied on by
the objectors provided that before the seat of justice should be
considered as permanently established at the Town of Canfield, the
citizens thereof should do certain things, all of which were
admitted to have been duly done. The objectors therefore claimed a
contract right that the county seat should remain
Page 134 U. S. 106
at Canfield. This Court said:
"The legislative power of a state, except so far as restrained
by its own constitution, is at all times absolute with respect to
all offices within its reach. It may at pleasure create or abolish
them or modify their duties. It may also shorten or lengthen the
term of service. And it may increase or diminish the salary or
change the mode of compensation. The police power of the states,
and that with respect to municipal corporations and to many other
things that might be named, are of the same absolute
character,"
citing Cooley, Const.Lim. 232, 342;
The Regents v.
Williams, 9 Gill & J. 371.
"In all these cases there can be no contract, and no
irrepealable law, because they are 'governmental subjects,' and
hence within the category before stated. They involve public
interests, and legislative acts concerning them are necessarily
public laws. Every succeeding legislature possesses the same
jurisdiction and power with respect to them as its predecessors.
The latter have the same power of repeal and modification which the
former had of enactment -- neither more nor less. All occupy in
this respect a footing of perfect equality. This must necessarily
be so in the nature of things. It is vital to the public welfare
that each one should be able at all times to do whatever the
varying circumstances and present exigencies touching the subject
involved may require. A different result would be fraught with
evil."
In
Stone v. Mississippi, 101 U.
S. 814,
101 U. S. 820,
considering the power of a legislature to grant an irrepealable
charter, for a consideration, to a lottery company, the Court
said:
"The power of governing is a trust committed by the people to
the government, no part of which can be granted away. The people,
in their sovereign capacity, have established their agencies for
the preservation of the public health and the public morals and the
protection of public and private rights. These several agencies can
govern according to their discretion, if within the scope of their
general authority, while in power, but they cannot give away nor
sell the discretion of those that are to come after them in respect
to matters the government of which, from the very nature of things,
must
Page 134 U. S. 107
vary with varying circumstances."
See also Hall v. Wisconsin, 103 U. S.
5;
United States v. Fisher, 109 U.
S. 143. Nor is the holding of this Court singular.
Numerous decisions to the same effect are to be found in the state
courts.
People v Morris, 13 Wend. 325;
Commonwealth v.
Bacon, 6 S. & R. 322;
Commonwealth v. Mann, 5 W.
& S. 418;
Hyde v. State, 52 Miss. 665;
State v.
Smedes, 26 Miss. 47;
Turpen v. Board of Commissioners of
Tipton County, 7 Ind. 172;
Haynes v. State, 3
Humphrey 480;
Benford v. Gibson, 15 Ala. 521.
In
Blake v. United States, 103 U.
S. 227, the fact is adverted to, and the opinion of the
Attorney General in
Lansing's Case, 6 Opinions Attys.Gen.
4, quoted approvingly to the effect that in this respect of
official tenure there is no difference in law between officers in
the army and other officers of the government.
Applying the above principles, it remains to say that we know of
no instance in which their assertion is more imperatively demanded
by the public welfare than in this case and such others as this. If
the position taken by the appellant is correct, then a logical and
unavoidable result is that our country, if ever we are so
unfortunate as to be again involved in war, will be compelled after
the treaty of peace to maintain the entire official force of the
army and navy, and a host of sincecurists, in full pay so long as
they shall live -- either that or to disband the army and navy
before the peace shall be made, even this wholly inadmissible
alternative being legally possible from one of appellant's
positions. It is impossible to believe that such a condition of
affairs was ever contemplated by the framers of our organic or
statute law. The effect of the authorities cited above is in no
respect modified by section 1229 or by Art. 36 of section 1624 of
the Revised Statutes. In the first place, if it were granted that
those sections mean what appellant claims for them -- if they mean
beyond question that one appointed as a cadet shall never be
dismissed by authority of either the executive or the legislature,
or by both in conjunction -- yet that fact would
Page 134 U. S. 108
make no difference. The great question of protection to contract
rights and vested interests, which forms such an interesting and
important feature of our constitutional law, is not dominated by
the turn of a phrase. Our courts, both state and national, look on
these questions through the form to the substance of things, and in
substance a statute under which one takes office, and which fixes
the term of office at one year or during good behavior, is the same
as one which adds to those provisions the declaration that the
incumbent shall not be dismissed therefrom. Whatever the form of
the statute, the officer under it does not revocable by the
sovereignty at will, and one legislature cannot deprive its
successor of the power of revocation.
Butler v. Pennsylvania,
supra; Stone v. Mississippi, supra; Cooley's Const.Lim. 283;
United States v. McDonald, 128 U.
S. 471,
128 U. S.
473.
In the second place, section 1229 and Art. 36 of § 1624 of
the Revised Statutes are a reproduction in the revision of the Act
of July 13, 1866, section 5,
supra, and in
Blake v.
United States, supra, the Court decided that that act only
operated to withdraw from the President the power previously
existing in him of removing officers at will and without the
concurrence of the Senate, and that there was no intention to
withdraw from him the power to remove with the advice and
concurrence of the Senate. If that construction of the statute be
correct (and we see no cause for altering our view), it necessarily
follows that it was not intended to place an officer where he never
before had been -- beyond the power of Congress to make any
provision for his removal, even by the executive who appointed
him.
It is claimed, however, that the construction so given to the
act of 1866 was induced by the consideration of certain other
statutes
in pari materia, and that the reintroduction of
it in the revision, unaccompanied by those other statutes, would
render that construction inapplicable now. We do not think so. We
have already considered the act of 1866 in its historical
relations, and from the circumstances of its enactment deduced its
meaning. When it was reenacted with all other
Page 134 U. S. 109
statutes of general interest, the political exigency which
furnished the primary motive for its reenactment had drifted away
with the lapse of time; but we do not think it can avail to give to
a statute which, after all, is but a reenactment in the exact
language of the original act, a meaning almost directly the reverse
of that given to the original act. To give such effect to the
action of Congress in codifying the statutes would go far to
subvert all decisions and introduce chaos into our
jurisprudence.
Thus far, we have preferred to decide the case upon the broad
grounds above stated, and therefore considered it as if the term of
office enjoyed by the appellant was what he claims it to have been
-- a term for life. In fact, however, even if that were true as to
other officers, it was not true as to him. The statute applicable
to his case is section 1520 of the Revised Statutes, which fixes
the academic course at six years, and when he entered the service,
under the regulations in such cases provided, he executed a bond to
serve for eight years unless discharged by competent authority --
thus recognizing his liability to be discharged.
As to the fourth proposition of appellant -- that in enacting
the statute of 1882, Congress assumed the power of appointment
which belongs to the executive -- we do not so regard the act.
Congress did not thereby undertake to name the incumbent of any
office. It simply changed the name and modified the scope of the
duties. This, we think, it had the power to do.
We think too that the appellant came within the terms of the act
of 1882. There is a very plain distinction between this case and
that of a cadet engineer, fully explained in
United States v.
Redgrave, 116 U. S. 474. The
statute in express terms provides that "the academic course of
cadet midshipmen shall be six years." If the Navy Department had
assumed to make any regulations by which the final graduation shall
take place in less time, such regulations would have been void. But
it did not so assume. It arranged for a two-years course afloat as
a part of the academic course, and exacted a preliminary
examination to test the cadet's qualifications therefor. But the
cadet afloat was a member of the
Page 134 U. S. 110
academy. He still was subject to a final examination at that
institution, and, without such examination successfully sustained,
never became a graduate. He was not so denominated until then,
either in the Naval Register or elsewhere, and it was not until
that final test had been sustained that, either by the practice of
the academy or by the provision of the statute, he did or could
receive his certificate of graduation.
The judgment of the Court of Claims is
Affirmed.
