Charges of drunkenness on duty having been preferred against A.,
a captain in the army, he proposed that if they should not be acted
upon, he would place his resignation in the hands of his commanding
officer, to be held, and not forwarded to the War Department, if he
should entirely abstain from the use of intoxicating liquors.
Accordingly, May 10, 1868, he enclosed in a letter to that officer
his resignation, stating that it was without date, and authorizing
him, subject to the condition above stated, to place it in the
hands of the department commander, to be forwarded to the War
Department if he, A., should become intoxicated again. On A.'s
again becoming intoxicated on duty prior to Oct. 3, 1868, the
department commander, on being notified of the fact, inserted the
date of the 5th of that month in the resignation and duly for
warded it. On the 29th, it was accepted by the President, and the
notification of his action thereon was received by A. Nov. 11. The
President revoked his acceptance, Dec. 11, but no order
promulgating the revocation or restoring A. to duty was issued by
the War Department. Dec. 22, 1869, the Senate advised and consented
to the appointment of B. to be a captain,
vice A.
resigned.
Held:
1. That A., by voluntarily placing his resignation, without
date, in the hands of his commanding officer, authorized him, upon
his (A.) becoming again intoxicated, to insert a proper date in
such resignation and forward it for acceptance.
2. That A.'s office became vacant upon his receipt of the
notification of the acceptance by the President of the
resignation.
3. That the action of the President revoking such acceptance did
not restore A. to the service.
Page 97 U. S. 427
This was a suit brought Sept. 2, 1873, in the Court of Claims,
by Bernard P. Mimmack against the United States to recover pay and
allowances as a captain in the army to that date from Dec. 11,
1868, amounting to $9,344.29. The court found the following
facts:
That in May, 1868, the petitioner, said Mimmack, was a captain
of the thirtieth regiment of infantry, and brevet-major, on duty at
Fort Sidney, which was under the command of General Potter.
Previous to the 10th of May, charges, with specifications of
drunkenness on duty, &c., were preferred against the
petitioner, and he then said that, on condition the charges should
not be acted upon, he would place his resignation in the hands of
General Potter, to be held by him, and not forwarded to the War
Department if he should entirely abstain from the use of
intoxicating liquors, and on the 10th of May the petitioner
enclosed his resignation to General Potter in a letter, stating
that the resignation was without date and authorizing General
Potter to place it in General Augur's hands, to forward to the War
Department should he, the petitioner, ever become intoxicated
again. General Potter sent the resignation and letter of the
petitioner to General Augur and informed him of the understanding
had with the petitioner as above stated.
Previous to Oct. 3, 1868, the petitioner having been again
intoxicated on duty and by excessive drunkenness confined to his
bed in a state bordering on delirium tremens, General Potter placed
him under arrest and ordered him to turn over the company's
property in his hands. By letter, dated Oct. 3, 1868, General
Potter informed General Augur that the petitioner had again broke
out drinking hard, and that he had placed him under arrest and
ordered him to turn over the company property.
On the 5th of October, General Augur forwarded the petitioner's
resignation, with the date filled up "Oct. 5, 1868," to the War
Department. This date was not filled up by the petitioner, nor was
he informed of the communication by General Potter, nor of the fact
that his resignation was to be forwarded to the War Department.
Page 97 U. S. 428
On the 29th of that month, the resignation was accepted by the
President, to take effect from that date, and notice of the
acceptance was sent to the petitioner, who received it Nov. 8. It
was not shown that the President, at the time of accepting it, had
been informed of the manner in which it had been lodged with
General Potter or of the fact that the date had been filled in by a
third person, or of any of the circumstances connected with the
resignation.
On the 18th of November, the President promoted First Lieutenant
Appleton D. Palmer to be "captain in the thirtieth regiment of
infantry," "
vice Mimmack, resigned," and notice thereof
was sent by letter to Captain Palmer of that date, but he was not
then commissioned.
On the 8th of December, the name of First Lieutenant Palmer was
placed on the list of nominations made by the President to be sent
to the Senate.
On the 11th of December, the President, on the petitioner's
application, revoked the acceptance of the resignation, and ordered
him to duty, and notice thereof was given to the Secretary of
War.
On the 12th of December, a report was made to the President of
the facts of the case by the War Department, and on the 24th the
report was returned to the Secretary of War by the President for
action under the order of Dec. 11.
The report and the direction of the President were referred to
the General of the Army, who requested that, before an order was
issued, the opinion of the Attorney General might be obtained as to
the legality of the President's revocation of his acceptance of the
petitioner's resignation.
On the 30th of December, by the direction of the President, the
name of First Lieutenant Palmer was stricken from the list of
nominations made by the President to be sent to the Senate, and the
Secretary of War was notified thereof.
On the 4th of January, 1869, the case of the petitioner, with
the papers relating thereto, was submitted by the Secretary of War
to the Attorney General, who, on the 4th of February, gave his
opinion that the President's revocation of his acceptance of the
petitioner's resignation had not the effect of restoring him to his
former position in the military service.
Page 97 U. S. 429
On the 13th of February, the opinion of the Attorney General and
the papers containing the President's order were sent to the
General of the Army, and he declined to permit his name to be used
in promulgating the order, as in his opinion it was illegal, and he
was sustained in that by the opinion of the Attorney General.
On March 11, 1869, President Grant nominated First Lieutenant
Palmer to the Senate to be "captain, Oct. 29, 1868,
vice
Mimmack, resigned." The nomination was not acted upon. By letter of
May 4, 1869, he was notified of his promotion by letter.
On the 6th of the following December, the President renominated
Lieutenant Palmer to be "captain, Oct. 29, 1868,
vice
Mimmack, resigned," and the Senate, on the 22d of that month,
advised and consented to the appointment, agreeably to the
nomination.
On the 19th of February, 1869, the petitioner enlisted in the
marine corps, and served therein until the 27th of August, when he
was transferred to the United States ship
Lancaster, and
served as clerk, and then secretary to the commanders of squadrons,
until May 22, 1872, and in the time specified he received as pay
$2,344.09.
On the 2d of November, 1872, the petitioner was appointed a
clerk in the Second Auditor's office, and served therein till Aug.
16, 1873, when he was appointed a clerk in the Fourth Auditor's
office; and up to June 30, 1874, he had received pay as clerk as
aforesaid to the amount of $2,082.49.
The Court of Claims dismissed the petition, and found as a
conclusion of law that the revocation by the President of his
acceptance of Mimmack's resignation, after notice to him of such
acceptance, did not restore the petitioner to his post in the
army.
Judgment having been rendered, Mimmack appealed here.
Page 97 U. S. 432
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Nothing short of a written resignation to the President or the
proper executive department by a commissioned officer of the army,
navy, or marine corps and the acceptance of the same duly notified
to the incumbent of the office in the customary mode will of itself
create a vacancy in such an office or prevent the incumbent, if the
President consents, from withdrawing the proposed resignation, in
which event the rights, privileges, duties, and obligations of the
officer remain just as if the resignation had never been
tendered.
Prior to notice that the resignation tendered has been accepted
by the President, the officer in such a case may not without leave
quit his post or proper duties, nor is he deprived of any of the
rights or privileges conferred and enjoyed by virtue of his
appointment and commission.
Charges, with specifications of drunkenness on duty, were made
to Brevet Brigadier General J. H. Potter, commanding Fort Sedgwick,
against the petitioner, and the record shows that the petitioner
proposed to that officer that, on condition
Page 97 U. S. 433
that the charges should not be prosecuted, he, the petitioner,
would place his resignation as captain and brevet major in the
hands of the officer to whom the charges were preferred, to be held
by him and not to be forwarded to the War Department if he, the
accused, should thereafter entirely abstain from the use of
intoxicating liquors, and that on the 10th of May, 1868, the
petitioner enclosed his resignation, addressed to the Adjutant
General of the Army, in a letter to the officer commanding Fort
Sedgwick, stating that the resignation was without date, and
authorizing the party to whom the letter was addressed to place the
resignation in the hands of the department commander, to be
forwarded to the War Department should he, the petitioner, ever
again become intoxicated.
Pursuant to the request of the letter and the authority it
conferred, both the letter and the resignation of the petitioner
were forwarded to the commander of the department, who was fully
informed of the purpose for which the documents were forwarded.
Previous to October in the same year, the petitioner again
became intoxicated on duty, and was by such continued excesses
confined to his bed in a state bordering on delirium tremens, in
consequence of which the commander at Fort Sedgwick placed him
under arrest and ordered him to turn over the property of the
company in his hands, as therein directed. Due notice that the
petitioner had again "broke out hard drinking," and that he had
been placed under arrest and ordered to hand over the company
property, was given to the department commander on the same day.
Two days later, the department commander forwarded the resignation
of the petitioner, with the date filled up, Oct. 5, 1868, to the
War Department, but the finding of the court below shows that the
date of the resignation was not filled up by the petitioner, nor
was he informed of the communication sent to the department
commander, nor of the fact that his resignation was to be forwarded
to the War Department. On the 29th of the same month, the
resignation of the petitioner was accepted by the President, and
notice to the petitioner of that date of such acceptance was duly
forwarded, which, as the findings of the subordinate court show,
was received by him on the 8th of November following.
Page 97 U. S. 434
By those proceedings it was at the time supposed that a vacancy
was created, and ten days subsequently the President promoted First
Lieutenant Appleton D. Palmer to be captain in the thirtieth
regiment of infantry,
vice Bernard P. Mimmack, resigned,
and notice thereof was sent by letter to the appointee of that
date, but he was not then commissioned. On the 11th of December
following, the President, on the application of the petitioner,
revoked his acceptance of the resignation of the petitioner and
ordered him to duty, and notice thereof was given to the Secretary
of War.
Proofs having been taken, the parties were heard and the court
rendered judgment that the petition should be dismissed, the
conclusion of law adopted being that the revocation by the
President of his acceptance of the petitioner's resignation, after
due notice to the petitioner of such acceptance, did not restore
the petitioner to the army. From which judgment the petitioner
appealed to this Court.
Full pay and allowances are claimed by the petitioner from the
11th of December, 1868, to the date of the judgment, amounting to
the sum of $9,344.29, as appears by the statement of his account
annexed to his petition.
Three principal errors are assigned:
1. That the court erred in holding that the revocation by the
President of his acceptance of the supposed resignation of the
petitioner, after the petitioner was notified of such acceptance,
did not restore him to the army.
2. That the court erred in holding that the petitioner did in
fact resign his office as captain in the army, and that the writing
signed by him and shown in the record was in law and fact his
resignation.
3. That the court erred in holding that by the said paper coming
to the hands of the President and his acceptance of it as a
resignation, and notice of such acceptance to the petitioner, he
ceased in law to be an officer in the army of the United
States.
Attempt is made to support these several propositions by the
facts exhibited in the findings of the court below, in addition to
those already reproduced, from which the petitioner insists that
the court here may decide that the petitioner never resigned his
commission, and that the office he held under it never became
vacant.
Page 97 U. S. 435
On the next day after the President revoked his acceptance of
the resignation of the petitioner, a report of the facts of the
case was made to the President by the War Department, and on the
24th of the same month the report was returned by the President to
the Secretary of War for action under the prior order of the
President, when the report and the direction of the President were
referred to the General of the Army. Due consideration having been
given to the matters so referred to him, the General of the Army
requested that before an order was issued the opinion of the
Attorney General might be obtained as to the legality of the
President's revocation of his acceptance of the petitioner's
resignation.
On the 13th of the same month, the name of Appleton D. Palmer,
previously placed on the list of nominations as first lieutenant,
was, by the direction of the President, stricken from the list of
nominations to be sent to the Senate, and the Secretary of War was
duly notified of that fact.
Pursuant to the request of the General of the Army, the case of
the petitioner, with the papers relating thereto, were, on the 4th
of the succeeding month, submitted by the Secretary of War to the
Attorney General, who subsequently gave it as his opinion that the
President's revocation of his acceptance of the petitioner's
resignation did not have the effect of restoring him to his former
position in the military service.
Mimmack's Case, 12
Op.Att'y Gen. 555.
Without much delay, the opinion of the Attorney General and the
papers containing the order of the President were sent to the
General of the Army, and he declined to permit his name to be used
in promulgating the order, as he was of the opinion that it was
illegal, and concurred with the Attorney General.
All the proceedings thus far in the case took place during the
administration of President Johnson. On the 11th of March, 1869,
President Grant nominated First Lieutenant Appleton D. Palmer to be
captain, Oct. 29, 1868,
vice Bernard P. Mimmack, resigned,
but the Senate did not act on the nomination, and it was renewed on
the following December, and on the 22d of the same month the
nomination was confirmed by the Senate.
Page 97 U. S. 436
Four principal questions arise in the case, and it is clear
that, if they are all decided adversely to the petitioner, the
judgment of the court below must be affirmed. They are as
follows:
1. Did the petitioner resign, as found by the Court of
Claims?
2. Did the President accept his resignation, and cause him to be
notified of the acceptance of the same?
3. Could the President revoke his acceptance of the petitioner's
resignation, after having given him notice that it was
accepted?
4. Is there any thing in the other facts found by the court
below to show that the resignation as accepted was ever legally
revoked or rendered inoperative?
Sufficient appears to show that the resignation without date was
written by the petitioner, and that it was enclosed by the
petitioner in a letter and sent to the commander at Fort Sedgwick,
with the request to place it in the hands of the department
commander, to be forwarded to the War Department should he, the
petitioner, ever again become intoxicated. Beyond all question, the
resignation, voluntarily written and signed by the petitioner,
together with the letter enclosing the same, was placed in the
hands of the department commander pursuant to his request, with
directions that it should be forwarded to the War Department in
case he should ever again commit the offence described in the
charges previously preferred against him by the commander of Fort
Sidney.
Nor does it make any difference that the resignation was without
date, as it is a clear legal proposition that the petitioner, by
placing the resignation in the hands of the depositary, with power
to forward it to the War Department in the event described,
authorized the holder, upon the happening of the event, to fill up
the date, and the subsequent conduct of the petitioner supports the
conclusion that the depositary did not exceed his authority.
Viewed in the light of these suggestions, it is clear that the
delivery of the resignation must be regarded as of the same
validity as it would have had if the blank date had been filled up
by the petitioner and he had personally transmitted it to the War
Department. Opposed to that is the suggestion that the transaction
is one of an unusual character; but the answer to that is that the
proposition came from the petitioner, and
Page 97 U. S. 437
that it does not lie with him to call in question either its
propriety or validity.
Argument to show that the President did accept the resignation
and notify the writer of the same that it had been accepted is
unnecessary, as both facts are embraced in the findings of the
court below; nor was any attempt made in argument to deny that the
evidence justified the findings.
Officers of the kind are nominated by the President and
confirmed by the Senate, and if the petitioner ceased to be such an
officer when notified that his resignation had been accepted, it
requires no argument to show that nothing could reinstate him in
the office short of a new nomination and confirmation. Prior to the
Act of the 13th of July, 1866, the President could dismiss an
officer in the military or naval service without the concurrence of
the Senate, but he never could nominate and appoint one without the
advice and consent of the Senate, as required by the Constitution.
Dubarry's Case, 4 Op.Att'y Gen. 603; 14 Stat. 92.
Since the passage of that act, the President cannot dismiss such
an officer in time of peace, and certainly no vacancy in such an
office can be filled without the advice and consent of the Senate;
from which it follows that the opinion of the Attorney General that
the subsequent action of the President did not restore the
petitioner to the military service is correct. 12 Stat. 316.
Concede that and it follows that the office became vacant when
the incumbent was notified that his resignation had been accepted,
and that the new appointment was in all respects regular when
confirmed by the Senate.
Decided support to that conclusion, if any be needed, is derived
from the subsequent findings of the court below, from which it
appears that the petitioner, on the 19th of February, subsequent to
the confirmation of the new appointee to the office in question,
enlisted in the marine corps, and that he remained in that
situation until his compensation amounted to $2,344, and that he
was subsequently appointed a clerk in the Treasury Department, and
that he served there in different capacities until his compensation
amounted to more than $2,000 in addition to what he had previously
received for his services in the marine corps.
Page 97 U. S. 438
For these reasons the Court is of the opinion that the
subsequent action of the President did not restore the petitioner
to the military service, and that his claim was rightly
rejected.
Judgment affirmed.
