# Quackenbush v. United States

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United States Supreme Court
177 U.S. 20
Quackenbush v. United States
Argued: February 1, 1900. --- Decided: March 19, 1900
This is an appeal from a judgment of the court of claims dismissing the petition of claimant and the counterclaim of defendants in the above-entitled cause. 33 Ct. Cl. 355. The petition was filed December 11, 1897, and sought recovery for amounts alleged to be due from the government 'from the 1st day of August, 1883, until the 1st day of June, 1895, at the rate of $2,300 per annum, being the leave or waiting orders pay as prescribed by law for the grade or rank of commander, and from the 1st day of June, 1895, to the 26th day of May, 1897, at the rate of $2,625 per annum, being three quarters of the sea pay as prescribed by law for the grade or rank of commander.' The counterclaim averred that claimant was indebted to defendants 'by reason of payments illegally made to him during the period from June 9, 1874, up to and including March 31, 1881, when the claimant was not in the naval service of the United States.'
The facts were in substance as follows: Claimant was duly and legally commissioned a commander in the Navy of the United States by and with the advice and consent of the Senate on the 2d day of January, 1872, to take rank from the 25th day of May, 1871. Thereafter in the month of February, 1874, certain charges were filed against claimant before the Navy Department, and a court martial was duly organized to try the same, by which, after hearing, and in that month, claimant was sentenced to be dismissed from the naval service of the United States. This sentence was approved by the President, and the Secretary of the Navy, June 9, 1874, addressed a letter to the claimant at Boston, Massachusetts, informing him of the sentence, its approval, and that from that day claimant would 'cease to be an officer of the Navy.' On June 12, the Secretary of the Navy addressed a letter to 'Commander John N. Quackenbush, U.S. Navy,' requesting him to 'return to the Department the order dismissing you from the Navy.' Both these letters were delivered to claimant on one and the same day, to wit, on or about June 15, 1874. In obedience to the order of June 12, claimant returned the letter of dismissal.
December 8, 1874, the Secretary of the Navy officially addressed a letter to claimant, in which, after setting forth the finding of the court martial and the sentence, the Secretary said: 'This sentence was, on the 9th day of June, 1874, mitigated to suspension from rank and duty on furlough pay for six years, the suspension to date from that day.' December 13, 1877, the Secretary of the Navy transmitted to the Attorney General of the United States a statement of the facts in the case, embodying the correspondence, and requested his advice thereon. In answer, the Attorney General, March 16, 1878 (15 Ops. Atty. Gen. 463), advised the Secretary that the claimant remained an officer in the Navy.
In that correspondence the date of the President's approval of the sentence was given as June 5, 1874, but the Attorney General held that the letter of the Secretary of December 8, 1874, was satisfactory proof of the mitigation of the sentence by the President on June 9, and that it was competent for him to grant commutation on that day.
Section 1363 of the Revised Statutes provided that 'there shall be allowed on the active list of the line officers of the Navy . . . ninety commanders . . . ;' which number was, by the act of August 5, 1882 (22 Stat. at L. 284, 286, chap. 391), reduced to eighty-five.
June 10, 1874, the President sent to the Senate the name of W. S. Schley to be commander in the Navy, 'vice Quackenbush, dismissed,' and the nomination was duly confirmed June 12, 1874. The records of the Navy Department show that there were ninety commanders borne on the active list of the Navy from the date of the appointment of W. S. Schley to August 5, 1882, when the number was reduced by law, except during the early part of the year 1879, when the list was temporarily increased to ninety-one by Congress.
After Schley's appointment, as Quackenbush was still on the register, the Secretary of the Navy, when his attention was called to the matter, directed that no nomination should be made to the next succeeding vacancy, and this recommendation was complied with, no appointment being made to the position subsequently becoming vacant by the retirement of Commodore Morris.
The court of claims found that, pursuant to the commuted sentence, and by virtue thereof, claimant was placed under suspension, on furlough pay, and was borne upon the official printed Navy register as a commander in the Navy 'under suspension,' from the year 1874 up to and including the year 1880, when the sentence expired, and from and after the date of such expiration he was borne on said register as a commander of the Navy on waiting orders until the publication of the register for 1883, when his name was omitted and dropped from the same. 'During the whole of said period he retained his proper and legal place on the official list of commanders in the Navy, and was advanced in numbers from year to year, as promotions of his seniors in said grade occurred, in the same manner and in all respects in the regular course, as other officers in his said grade and rank were advanced.'
He was paid as on furlough for six years, and thereafter, from June 9, 1880, to March 31, 1881, was taken, by direction, on the rolls of the paymaster at the Navy Yard at Boston, Massachusetts, and paid as on 'waiting orders.'
On the 30th of March, 1881, the judgment of this court was announced in Blake v. United States, 103 U.S. 227, 26 L. ed. 462. It was there ruled that the President has the power to supersede and remove an officer of the Army or the Navy by the appointment, by and with the advice and consent of the Senate, of his successor. What direction, if any, was given at the time, in view of this decision, did not appear; but, at all events, from March 31, 1881, until May 26, 1897, claimant received no pay, allowances, or emoluments of any kind.
In April, 1882, the views of the Secretary of the Navy were requested by the chairman of the committee on naval affairs in the House of Representatives in respect of the propriety of the passage of a pending bill 'to confirm the status of John N. Quackenbush, a commander in the United States Navy,' and the Secretary responded that it appeared to have been the intention of the President, in exercising clemency in the case of Commander Quackenbush, that he should be retained in the service, and that it seemed just, in view of all the circumstances, that he should be entitled to the benefit of that clemency.
The following entry appears opposite claimant's name on one of the records of the Navy Department: '208. John N. Quackenbush left off the register published 1st August, 1883, by direction of the Secretary of the Navy; his action being based upon a decision of the Supreme Court.' December 6, 1883, the Secretary of the Navy designated to the President D. W. Mullan to be a commander in the Navy 'vice John N. Quackenbush, no longer in the service;' and in that month the President sent to the Senate the nomination of said Mullan to be a commander in the Navy from the 3d day of July, 1882, 'vice John N. Quackenbush, no longer in the service.' The nomination was duly confirmed and Mullan commissioned.
Claimant filed a petition April 15, 1895, to the Secretary of the Navy asking that he be restored to his proper position on the list of naval officers, but the Secretary declined to grant any relief, holding that the matter of his rights was res judicata under the action taken by his predecessor. In May, 1895, claimant exhibited a petition in the supreme court of the District of Columbia praying that a writ of mandamus issue to the Secretary of the Navy requiring him to put claimant's name back on the list of naval officers, which was dismissed February 11, 1896.
Bills for the relief of Commander Quackenbush were introduced in Congress from 1882 to 1897, and many reports made thereon.
February 16, 1897, an act entitled 'An Act for the Relief of John N. Quackenbush, Late a Commander in the United States Navy,' became a law without the approval of the President. 29 Stat. at L. 803, chap. 235. This act read as follows:
'That the provisions of law regulating appointments in the Navy by promotion in the line, and limiting the number of commanders to be appointed in the United States naval service, are hereby suspended for the purpose of this act only, and only so far as they affect John N. Quackenbush; and the President of the United States is hereby authorized, in the exercise of his discretion and judgment, to nominate and, by and with the advice and consent of the Senate, to appoint said John N. Quackenbush, late a commander in the Navy of the United States, to the same grade and rank of commander in the United States Navy as of the date of August first, eighteen hundred and eighty-three, and to place him on the retired list of the Navy, as of the date of June first, eighteen hundred and ninety-five: Provided, That he shall receive no pay or emoluments except from the date of such reappointment.'
In May, 1897, in accordance with the terms of the act, the President nominated claimant to the Senate to be a commander on the retired list of the Navy, and the nomination was confirmed. The claimant took the prescribed oath on May 26, 1897, since which last-mentioned date he has been paid three quarters of the sea pay of a commander in the Navy on the active list. Claimant reached the age of sixty-two on May 31, 1895.
Messrs.John Paul Jones and Richard R. Beall for appellee.
Messrs. George H. Walker and L. A. Pradt for appellee.
Mr. Chief Justice Fuller 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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