1. The limitation sought to be imposed upon the President's
power to remove an Army officer (118th Article of War, 39 Stat.
669; Rev.Stats., §§ 1342, 1230) do not apply when the
removal is effected
Page 257 U. S. 542
by the President with the consent of the Senate through the
appointment of another to his place. P.
257 U. S.
544.
2. The Court notices judicially that nomination to office are
usually referred to a committee of the Senate -- in this case, the
Military Committee -- for investigation and report, and the duty of
the committee to inquire into the existence of a vacancy to which
the appointment can be made. P.
257 U. S.
546.
3. Where the President undertook to remove an army officer and
nominated another to take his place as of the day following the
removal, without mentioning the removal,
held that the
Senate, which confirmed the nomination, must be presumed to have
known the confirmation would fill the legal complement of such
officers, and to have joined in the removal. P.
257 U. S.
545.
4. To allow pay for an officer whose place has been filled by
nomination and confirmation, there must be special legislative
authority. P.
257 U. S.
546.
5.
Quaere whether claimant lost his right to apply for
a court-martial under Rev.Stats. § 1230 by waiting five months
after his removal by the President? P.
257 U. S. 547.
55 Ct. Clms. 396 affirmed.
Claiming to be a Colonel in the Quartermaster Corps of the
United States Army, the appellant sued in the Court of Claims to
recover $6,580.67 salary and commutation of quarters from February
13, 1918, until March 12, 1919. His petition was dismissed. The
President, on the recommendation of the Secretary of War, issued an
order dismissing the appellant from the service by General Orders
No. 17, of February 13, 1918, of which he was notified on the same
day. The United States was then at war with Germany. On March 1,
1918, the President sent to the Senate the following
nominations:
"I nominate the officers herein named for promotion in the Army
of the United States."
"
QUARTERMASTER CORPS"
"
To be Colonels"
"Lieutenant Colonel Robert S. Smith, Quartermaster Corps, with
rank from February 14, 1918. "
Page 257 U. S. 543
"Lieutenant Colonel Richmond McA. Scofield, Quartermaster Corps,
with rank from February 23rd, 1918."
"
To be Lieutenant Colonels"
"Major Morton J. Henry, Quartermaster Corps, with rank from
February 14th, 1918."
"Major William Elliott, Quartermaster Corps, with rank from
February 23, 1918."
These officers were confirmed March 8, 1918. This filled the
complement of 21 officers allowed by law in the grade of Colonel in
the Quartermaster Corps.
On July 16th, appellant made a formal application in writing for
trial by court-martial, setting forth under oath that he had been
wrongfully dismissed. On September 14, 1918, the trial was refused
by the Secretary, and no court-martial was convened.
Prior to June 24, 1918, plaintiff did not have knowledge of
§ 1230, Revised Statutes. He had been advised after his
dismissal that he could seek relief through Congress.
MR. CHIEF JUSTICE TAFT, after stating the case, delivered the
opinion of the Court.
The President acted under the 118th Article of War, which
provides in part (39 Stat. 619, 650, 669) that
"No officer shall be discharged or dismissed from the service
except by order of the President or by sentence of a general
court-martial, and in time of peace, no officers shall be dismissed
except in pursuance of the sentence of a court-martial or in
mitigation thereof. "
Page 257 U. S. 544
This Article is only a reenactment of the 99th Article of War
contained in the Revised Statutes. Section 1342, Rev.Stats. Both
are therefore to be read with § 1230, Rev.Stats., which is as
follows:
"When any officer, dismissed by order of the President, makes,
in writing, an application for trial, setting forth, under oath,
that he has been wrongfully dismissed, the President shall, as soon
as the necessities of the service 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."
Appellant claims that, by the failure to grant him a
court-martial, his dismissal under § 1230 was rendered void
ab initio, and that he is still a Colonel.
The first question is whether he ceased to be a member of the
Army by the nomination and confirmation of another which filled the
complement of officers allowed by law in his rank. It is clear from
the reasoning of this Court in the case of
Blake v. United
States, 103 U. S. 227,
that the words "by order of the President," in § 1230,
Rev.Stats.,
supra, refer to a dismissal by the President
alone, and do not include the removal of an officer by the
appointment and confirmation of his successor.
Before the Civil War, there was no restriction upon the
President's power to remove an officer of the Army or Navy. The
principle that the power of removal was incident to the power of
appointment was early determined by the Senate to involve the
conclusion that, at least in absence of restrictive legislation,
the President, though he could not appoint without the consent of
the Senate, could remove without such consent in the case of any
officer whose tenure was not fixed by the Constitution.
Page 257 U. S. 545
The first legislative restriction upon this power was enacted
March 3, 1865, by the very provision we are here considering (13
Stat. 489), which subsequently became § 1230, Revised
Statutes. Thereafter, on July 13, 1866 (14 Stat. 92), Congress took
away altogether the power of the President to dismiss an officer of
the Army or Navy in time of peace, except in pursuance of a court
martial sentence or in commutation thereof. After that, in the
controversy between President Johnson and the Senate, the tenure of
office act was passed which cut down the power of the President to
remove civil officers. Act of March 2, 1867, 14 Stat. 430. The
validity of these acts has never been directly passed on by this
Court in any case. The question has been expressly saved.
Parsons v. The United States, 167 U.
S. 324,
167 U. S.
339.
While thus the validity and effect of statutory restrictions
upon the power of the President alone to remove officers of the
Army and Navy and civil officers have been the subject of doubt and
discussion, it is settled,
McElrath v. United States,
102 U. S. 426;
Blake v. United States, 103 U. S. 227;
Keyes v. United States, 109 U. S. 336;
Mullan v. United States, 140 U. S. 240,
that the President, with the consent of the Senate, may effect the
removal of an officer of the Army or Navy by the appointment of
another to his place, and that none of the limitations in the
statutes affects his power of removal when exercised by and with
the consent of the Senate. Indeed, the same ruling has been made as
to civil officers.
Parsons v. United States, 167 U.
S. 324.
The question here, then, is whether the Senate joined the
President in his removal of the appellant. That the President
intended to separate him from the Army is, of course, plain. What
are we to infer from the Senate's action in confirming appointments
by the President which filled the complement of officers of the
rank of appellant allowed by law? The appointment of Lieut.
Colonel
Page 257 U. S. 546
Robert Smith was made two weeks after the announcement in
General Orders of the dismissal of appellant and was made to confer
the rank as of February 14th, the day after appellant was
dismissed. The appointment did not say, as is usual in such cases,
vice Wallace dismissed; but the facts of record in the War
Department and in General Orders leave no doubt of the intention of
the President and the Department in that regard. This raises the
inquiry what we should presume as to the knowledge of the Senate in
the matter. We can take judicial notice of the fact that
nominations to office sent to the Senate are usually referred to
the appropriate committee for investigation and report. In this
case, the nomination would have been sent to the Military
Committee, which considers each appointment and is, of course,
charged with the duty of inquiring into the existence of a vacancy
to which an appointment can be made, as well as into its wisdom and
propriety. Communication between the Department and the Committee
dealing with such appointments is easy and frequent. We must
presume, therefore, in the absence of any showing to the contrary,
that the Senate was advised of the facts in respect to the
nomination of Lieut. Colonel Smith, and that it intended to supply
the vacancy occasioned by the dismissal of appellant. Otherwise we
must conclude that the Senate Committee was recommending, and the
Senate was deliberately voting confirmation of a nomination to a
place for which there was no provision by law. We must assume that
the confirming authorities knew the legal complement of Colonels in
the Quartermaster Corps and how many they had already confirmed for
that office. They must therefore have made inquiry and been assured
as to the vacancy which would make Colonel Smith's nomination and
rank from February 14, 1918, proper.
It is urged that, if the dismissal of appellant was rendered
void
ab initio, as contended, the effect was to
restore
Page 257 U. S. 547
him to office, and he was entitled to pay although the lawful
complement of officers had been exceeded. To sustain this view,
Quackenbush v. The United States, 177 U. S.
20, is cited. It fails entirely to do so. On the
contrary, it shows that, in order to authorize pay for an officer
whose place has been filled by nomination and confirmation of the
Senate, there must be special legislative authority.
This is conclusive, and renders it unnecessary to consider
whether appellant lost his right to apply for a court martial under
§ 1230 by waiting five months, a question not free from doubt,
considering the exigencies and need for dispatch in time of war.
See Norris v. United States, 257 U. S.
77, and
Nicholas v. United States, ante,
257 U. S. 71.
The judgment of the Court of Claims is
Affirmed.
