# McElrath v. United States

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United States Supreme Court
102 U.S. 426
McElrath v. United States
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 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 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 counter-claim 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 counter-claim a judgment against a claimant further than is necessary to defeat his claim. 4. That a counter-claim by the United States in the 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 [[United States Bill of Rights|[[United States Bill of Rights|[[United States Bill of Rights|[[United States Bill of Rights|Seventh Amendment]]]]]]]] to the Constitution; and that so much of sect. 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 counter-claim 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.
Mr. Frank W. Hackett for the appellant.
The attempted dismissal by Secretary Welles, by his letter of June 19, 1866, was illegal and void. Power summarily to dismiss a commissioned officer of the Marine Corps was at that date lodged in the President alone. Art. of War, 2 Stat. 359; Ex parte Hennen, 13 Pet. 230; Gratiot v. The United States, 1 Ct. of Cl. 258. The presumption that an official act of the head of department is that of the President, appears to be founded upon the theory that, at some previous period, the President gave general directions, in conformity to which a secretary may from time to time transact public business. But this implied general authority must be confined to such ministerial acts as are within the proper sphere of the secretary's duties. On the dismissal of commissioned officers of the army or the navy by the President, the order, to be effectual and valid, if it be not signed by him, should at least purport to be an attestation of his act.
The action of the President and Senate in nominating and confirming Haycock did not indirectly have the effect of dismissing McElrath. A dismissal from an office, the incumbent whereof is removable at the pleasure of the President, may be caused by the appointment of a successor; but, until the latter is commissioned, that action vests no right in him, nor does it work the removal of the incumbent. Marbury v. Madison, 1 Cranch, 137; United States v. LeBaron, 19 How. 73. Haycock's commission was not signed till July 13, 1866. But on that day a statute went into effect providing that no officer of the military or the naval service should 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. 14 Stat. 92. A Federal statute takes effect from its date. Matthew v. Zane, 7 Wheat. 164. This statute took effect from the beginning of July 13. United States v. Lapeyre, 17 Wall. 191; United States v. Norton, 97 U.S. 164. Congress, under art. 1, sect. 8, of the Constitution, empowering them to 'make rules for the government and regulation of the land and naval forces,' may restrain the implied power of the President to make summary dismissals.
The claimant is entitled to full pay and allowances from June 19, 1866, to July 10, 1873. He was debarred from active service by a cause which he could not control, and from no fault of his own. Act June 30, 1834, 4 Stat. 713; Rev. Stat., sect. 1612; Digest Decisions Judge-Advocate-General of the Army, pp. 267-268, sects. 14, 18, 19.
So much of sect. 3 of the act of March 3, 1863 (Rev. Stat. 1061), as purports to give the Court of Claims power to render judgment in favor of the United States against a claimant, is in violation of the [[United States Bill of Rights|[[United States Bill of Rights|[[United States Bill of Rights|[[United States Bill of Rights|Seventh Amendment]]]]]]]] of the Constitution, which provides that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. Bains v. The James and Catherine, 1 Baldw. 544; Parsons v. Bedford, 3 Pet. 446; Willard v. Dorr, 3 Mas. 161. The counter-claim upon which this judgment was rendered was a suit at common law for money had and received. A counter-claim which seeks not merely to defeat the cause of action, but to obtain a distinct and independent judgment against the claimant, is not a mere incident to the original claim. It is a new suit. The original suit in the Court of Claims is not a suit at common law, but the moment the government attempts to obtain an affirmative judgment in any sum whatever against a claimant, the proceeding, so far as that judgment is concerned, becomes a suit at common law.
Unquestionably, as a general principle, Congress has the right to prescribe terms upon which the government consents to be sued. But it cannot authorize the government to sue an individual in a suit at common law, and deny him therein a trial by jury. Nor can it do this indirectly by attaching to his right to sue the government a condition that he shall surrender a privilege guaranteed to him by the Constitution. He may, by formally giving his assent thereto, waive the right of trial by jury; but it is the duty of Congress to preserve the right in all suits at common law. The Court of Claims has no jury, consequently a petitioner cannot be said sua sponte to waive his right to one. Nor is it entirely correct to treat the right of bringing suit in the Court of Claims as a favor. United States v. Klein, 13 Wall. 144.
But conceding that the court had authority to enter judgment upon the counter-claim, the judgment itself was erroneous. The Secretary and the Second Comptroller decided that appellant was legally entitled to receive the sum paid him. The subject-matter being within their jurisdiction, it is presumed that their action was correct in point of law. Wilkes v. Dinsman, 7 How. 89. If the money was paid upon a mistake, it was a mistake of law, and according to the well-known rule it is not recoverable.
The Second Comptroller of the Treasury is a quasi judicial officer. His decisions have the ordinary elements of finality. McKee v. United States, 12 Ct. Cl. 532; McKnight v. United States, 13 id. 292. They are authoritative declarations of law binding on his successors, and respected in like manner as the constructions of a statute which have received judicial sanction. He has jurisdiction to determine whether or not an individual is an officer of the naval or the military forces, and as such entitled to pay and allowances.
This court does not know upon what precise grounds the Comptroller based his decision. There may have been facts presented to him which do not appear of record here. Because the appellant brought his petition in the Court of Claims, asking full pay instead of half pay for a specified period, and because certain facts are certified here from the court below, it does not follow that the payment by the Treasurer, after allowance by the Second Comptroller, was based upon these facts, and nothing else. That, though closely connected with the present proceeding, is a distinct transaction, and there may have been proof laid before the Comptroller which the appellant did not make before the court below, or which is not certified up.
How is this court, for instance, to know whether or not Lieutenant McElrath's case as laid before the Comptroller came within the provisions of the act of March 3, 1865? That act (13 Stat. 489) was in force at the date of Secretary Welles's letter. It provided that in case any officer dismissed by order of the President should 'make application for a trial, setting forth under oath that he has been wrongfully and unjustly dismissed, the President shall, as soon as the necessities of the public service may permit, convene a court-martial to try such officer. And if such court-martial shall not award dismissal or death as the punishment of such officer, the order of dismissal shall be void. And if the court-martial aforesaid shall not be convened for the trial of such officer within six months from the presentation of his application for trial, the sentence of dismissal shall be void.'
Suppose that an officer dismissed under such circumstances had applied for a court-martial. That tribunal is not convened within six months, or, if convened, does not award death or dismissal. The statute makes the order of dismissal absolutely void. The President meanwhile has sent in to the Senate, and that body has confirmed, the nomination of another individual to fill the vacancy. Is the dismissal thus made legal and valid?
It is error to treat the Comptroller as an agent of the government to settle accounts rather than as a quasi-judicial officer, competent to decide the question whether or not Lieutenant McElrath was legally an officer of the navy. While his opinion upon the law of the case may be pronounced incorrect by this court, payment of money made by the government in conformity with his opinion is final and conclusive. Nor does the appellant, by bringing suit in the Court of Claims, reopen the settlement at the treasury so as to entitle the government to recover money paid in mistake of law. If this were the case of credits or allowances made in an account, it may be conceived that an action on the account would give opportunity for the defendant to restate his account; but here the government has actually paid over the money and closed the transaction, so far as the question of liability to pay anything at all is concerned; the only thing remaining unsettled being the method of computation.
As there is no statute of limitation running against the United States, there would be constant danger in dealing with the government, for fear that, years after receiving one's lawful dues (as he supposes), one's heirs would be called upon to make restitution; whereas, practically, but little loss can result to the treasury from an adherence to what has proved a sound rule in transactions between individuals.
The Attorney-General for the United States.
McElrath held his office at the pleasure of the President, and such was the tenor of his commission.
The President's power of summarily dismissing an officer of the army or the navy, although frequently exercised from the origin of the government, was never seriously questioned. No attempt was made until 1865 to impose any limitation upon it. Sect. 17 of the act of July 17, 1862 (12 Stat. 596), did not confer the power, but rather recognized and declared its existence, and requested him to exercise it whenever the efficiency of either of those branches of the service would, in his opinion, be thereby promoted.
The letter of the head of the Navy Department of June 19, 1866, to McElrath as effectually severed his connection with the service as if it had declared in express terms that the dismissal was by order of the President. Wilcox v. Jackson, 13 Pet. 498. If this, however, were an open question, and doubts could be raised on the subject, they would be removed by the President's nominating, June 27, 1866, Haycock, vice McElrath dismissed, and his subsequently commissioning the former from June 20, 1866, pursuant to the appointment made by and with the advice and consent of the Senate. The record thus furnishes conclusive proof of McElrath's dismissal by the President.
Congress has power, by express grant, to make rules for the government and regulation of the land and naval forces. Whether by such rules the President's power of removal can, consistently with the Constitution, be restricted, is a question which does not arise in this case. Sect. 12 of the act of March 3, 1865 (13 Stat. 489), does not apply to McElrath, as he did not avail himself of its provisions; nor does sect. 5 of the act of July 13, 1866 (14 id. 92), for when it took effect he was not in the service.
McElrath being out of the navy, his relations to it thereafter were the same as if he had never entered it. The Secretary's pretended restoration of him in 1873 was without effect. He could only be appointed by the President in the mode prescribed by the Constitution and laws.
All the facts bearing upon the case being set forth in the claimant's petition, the issue before the Court of Claims was essentially one of law, involving the effect of the order of dismissal, its attempted revocation, and the lawfulness of the payment made, under the circumstances, by officers of the United States.
The question of the constitutionality of sect. 1061, Rev. Stat., which he discusses, does not, therefore, fairly arise; but, conceding that it does, the section has no relation to matters of defense which might be pleaded in a suit at common law. It authorizes that court to hear and determine any distinct and separate cause of action of the United States against the claimant, at the same time with his claim; and if it be less or equal to his, to set it off; and if it be greater, to render judgment for the United States. The principle is the same whether the counter-claim be greater or less than the amount to recover which the suit was brought.
The act of Feb. 10, 1855 (10 Stat. 612), first gave the formal consent of the United States to be sued. To the privilege thus conferred Congress subsequently attached the right of the government to plead a set-off, a counter-claim, a claim for damages, whether liquidated or unliquidated, or other demands on its part.
McElrath, by availing himself of the privilege, waived in the Court of Claims whatever right he possessed of trial by jury in other courts.
A set-off is merely an incident to a pending suit, and acts upon a plaintiff already in court. Congress has not attempted to bring debtors into a court where there is no trial by jury. It simply says, that when asserting rights by suit against the United States they shall be subject to its cross-demand.
A ser-off did not exist at common law in suits at law. Green v. Darling, 5 Mas. 201; Green v. Farmer, 4 Burr. 2214.
In a recent case brought here by appeal from the Court of Claims, where the judgment upon a counter-claim was for hundreds of thousands of dollars, it was not suggested or intimated by eminent counsel that sect. 1061 was unconstitutional. Union Pacific Railroad Co. v. United States, 99 U.S. 402.
The argument of the claimant strikes at the whole existence of the court, for it was as customary to try by jury issues of fact arising on a petition of right, as those arising in suits brought by the sovereign against the subject. Tidd's Practice, tit. Extent in Chief, p. 1046; Manning's Exchequer Practice, tit. Petition of Right, p. 85.
The receipt by the claimant of public money to which he had no right, legal or equitable, gave to the United States a cause of action.
The allowance of the claim by the accounting officers is no obstacle to a recovery. After jurisdiction to hear set-offs and counter-claims had been conferred on the Court of Claims, Congress provided, by the act of March 30, 1868 (15 Stat. 54, sect. 191, Rev. Stat.), that the balances stated by those officers upon settlements of public accounts should be subject to revision by the proper courts.
Neither the United States nor the claimant is bound by those settlements. United States v. Bank of the Metropolis, 15 Pet. 377; United States v. Kaufman, 96 U.S. 567.
Public money paid improperly and without authority of law by the agents of the government, may be recovered. Cooke v. United States, 91 U.S. 397; Bayne v. United States, 93 id. 642; Attorney-General v. Perry, 2 Com. 481; United States v. Bartlett, 2 Ware, 9; Duke de Cadaval v. Collins, 6 Nev. & M. 324; Jones v. Barkley, 2 Doug. 684, 697; Muttyloll Seal v. Dent, 8 Moo. P. C. C. 319; Evans's Essay on the Action for Money Had and Received, 28, 29.
MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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