#### CARL E. BEATY v. THE UNITED STATES.

[No. 258-A.

Decided January 2, 1923.]

*On the Proofs.*

*Navy, temporary officer; power of President.*— Where a chief pay clerk in the Navy is appointed a temporary assistant paymaster with the rank of lieutenant under the act of May 22, 1917, 40 Stat. 84, and his temporary appointment as such is revoked by the President under said act, with an order to revert to his permanent status of chief pay clerk, the President has no power to cancel his order of demotion so as to restore the officer to his status of assistant paymaster with the rank of lieutenant, as this can only be done by a new appointment with the advice and consent of the Senate.

*The Reporter’s*statement of the case:

*Mr. George A. King*for the plaintiff. *King & King*were on the briefs.

*Mr. John G. Ewing,*with whom was *Mr. Assistant Attorney General Robert H. Lovett,*for the defendant.

The following are the facts of the case as found by the court:

I. The plaintiff, Carl E. Beaty, originally entered the Navy from civil life as a paymaster’s clerk August 29, 1902; accepted the appointment and executed the oath of office September 1,1902. He served from that date with some intervals as a paymaster’s clerk until July 1, 1915, on which date he was appointed and commissioned a chief pay clerk. He was appointed an assistant paymaster for temporary service in the Navy from July 1,1917, and attained the rank of lieutenant for temporary service from July 1, 1918.

August 28, 1918, a retiring board found that he was physically incapacitated for service by reason of chronic pulmonary tuberculosis, permanent and incurred in line of duty as a result of an incident of the service prior to his appointment as assistant paymaster for temporary service in the Navy. The following are the findings of the board:

“ Naval RetieiNG Board,

“ U. S. S. Naval Hospital,

“ *Fort Lyon, Colorado, August 28,1918.*

“ The board reconvened at 10.07 a. m., Aug. 28, 1918, pursuant to orders, copies prefixed, marked ‘ Grl ’ to ‘ G6.’

*26“Present: Pay Inspector John E. Sanford, TJ. S. Navy; Surgeon Spencer L. Higgins, U. S. Navy; Lieutenant Michael Hudson, TJ. S. Navy; Lieutenant Eobert P. Mohle TJ. S. Navy; Assistant Surgeon Soloman J. Chapman, TJ. S. Naval Eeserve Force, members; and Ensign (T) Lawrence Crilley, TJ. S. Navy, recorder.

“Assistant Paymaster (T) Carl E. Beaty, TJ. S. Navy, reported in obedience to an order, copy prefixed, marked ' H.’

“ The orders were read by the recorder and there was no objection to any member.

“ The new members are duly sworn.

“ Assistant Paymaster (T) Carl E. Beaty, TJ. S. Navy, withdrew.

“ The board, having deliberated on the evidence before it, and having decided that prima facie it appears that the incapacity of Assistant Paymaster (T) Carl E. Beaty, TJ. S. Navy (chief pay clerk, TJ. S. Navy), was incurred in line of duty prior to his appointment as a temporary paymaster in the Navy, he was called before the board and so informed by the president, and given an opportunity to be heard.

“Assistant Paymaster Beaty stated that he did not desire to question the medical members, or to introduce evidence, but made a statement, which was read, appended, marked ‘ Exhibit No. 6.’ He Avas then discharged from further attendance.

“ The board, having deliberated on the evidence before it, decided that Assistant Paymaster (T) Carl E. Beaty, TJ. S. Navy (chief pay clerk, U. S. Navy), is incapacitated for service by reason of chronic pulmonary tuberculosis, that his incapacity is permanent and was incurred in line of duty as the result of an incident of the service prior to his appointment as a temporary assistant paymaster in the Navy.

“ JOHN E. SANEORD,

“ *Pay Inspector, U. 8. Naroy, President.*

“ S. L. HiggiNS,

“ *Surgeon, TJ. 8. Navy, Member.*

“ E. P. Mohle,

“ *Lieutenant, TJ. 8. Navy, Member.*

“ Micuiael HxtdsoN,

“ *Lietéenant, TJ. 8. Navy, Member.*

“ S. J. ChaumaN,

*“Assistant Surgeon, TJ. 8. Naval Reserve Force, Member.*

“ L. Crilley,

“ *Ensign (T) TJ. 8. Navy, Recorder.*

“ By direction of the Secretary of the Navy.

“ Eespectfully,

“ J. L. Latimer,

“ *Judge Advocate General of the Navi/P*

*27On October 25, 1918, prior to action by the President on findings of the retiring board, the President revoked the temporary appointment of Carl E. Beaty as assistant paymaster, temporary, in the Navy by the following letter:

“ Navy Department,

“ *Washington, October 25, 1918.*

*“*To: Ensign Carl E. Beatty (P. C.), U. S. N., Naval Hospital, Fort Lyon, Colo.

“ Subject: Be vocation of temporary appointment as an assistant paymaster in the Navy.

“ 1. Your temporary appointment as an assistant paymaster in the Navy is hereby revoked. You will revert to your former status as a chief pay clerk in the Navy.

*“*2. By direction of the President.

“ 3. Please acknowledge receipt of this communication.

“ Josephus Daniels.”

Said letter of revocation by the indorsement thereon is noted as having been received by the plaintiff on November 1, 1918. November 20, 1918, the findings were approved by the President and the approval announced, as follows:

“ Navy DepaetmeNT,

“ Washington, *December 5,1918.*

“ To Chief Pay Clerk Carl E. Beaty, U. S. N., Navy 1

Hospital, Ft. Lyon, Colo. (Medical officer in command.) “ Subject: Transferred to retired list, section 1453, B. S.

“ 1. You are advised that the Naval Betiring Board, before which you recently appeared, found you incapacitated for service by reason of chronic pulmonary tuberculosis,’ that your incapacity is permanent, and was incurred in line of duty as the result of an incident of the service prior to your appointment as a temporary assistant paymaster in the Navy.

“ 2. The findings of the board were approved by the President of the United States under date of November 20, 1918, who directed that you be retired from active service and placed on the retired list, in conformity with the provisions of section 1453 of the Bevised Statutes.

“ 3. Accordingly, you have been transferred to the retired list of the Navy, from the 20th day of November, 1918, in accordance with the above-mentioned provisions of law.

*“*Josephus Daniels.”

*28On August 19, 1919, the following letter was sent to the plaintiff:

“ NAVT DEPARTMENT,

“ *Washington, Aug. 19, 1919.*

“ To: Lieutenant Carl E. Beatty (P. C.) TJ. S. N., Bet., Apt-305, The Leumas, 1201 Q St. NW., Washington, D. C.

“ Subject: Transfer to the retired list of the Navy.

“ 1. In view of an opinion of the Judge Advocate General of the Navy to the effect that the action of the department in transmitting to you its letter of October 25, 1918, purporting to revoke your temporary appointment as lieutenant in the Navy, in order to retire you in your former rank was illegal, said letter is hereby revoked and you are directed to return same to the Bureau of Navigation for cancellation.

“ 2. You will accordingly regard yourself as having been transferred to the retired list of the Navy in the temporary grade and rank held by you, i. e., assistant paymaster with rank of lieutenant.

“ 3. The records of the department have been corrected accordingly.

“ Franklin D. Boosevelt, *Acting A*

“ 1201 Q St., N.W.,

*“ Washington, Aug. 29,1919.*

*“*Beceived at 5.00 p. m. this date.

“ Carl E. Beatt,

*“Lieut. (P. O.), ü. S. N., Retd.”*

The plaintiff has ever since been carried on the Navy Begister as a lieutenant (Supply .Corps), United States Navy, retired.

II. The plaintiff later made claim for pay as of the rank of lieutenant from date of his retirement to the Auditor for the Navy Department both before and after the passage of the act of July 4, 1920, section 2, 41 Stat. 834, relating to retirement of temporary officers, but his claim was disallowed. Plaintiff thereupon appealed to the Comptroller of the Treasury. While his appeal was thus pending the Secretary of the Navy, November 26, 1920, stated in an indorsement upon a letter of the plaintiff to the Comptroller ■ of the Treasury sent via the Secretary of the Navy:

“2. This department concurs in the statement of Lieutenant Beaty contained in the first paragraph of attached' letter. The revocation of the temporary appointment held *29by this officer as assistant paymaster with the rank of lieutenant in the Supply Corps, U. S. Navy, was directed on the ground, entertained at the time said letter was issued, that an officer could not be retired in a temporary rank unless the disability occurred while holding the temporary rank. This ground was subsequently determined to have been illegal and the department'decided that an officer must be retired in the rank held by him at the time of his being found physically disabled by a retiring board, and the revo-. •cation of the appointment of Lieutenant Beaty of October 25, 1918, was recalled for cancellation in department’s letter of August 19,1919.

“The records of this department show that Carl E. Beaty is a retired assistant paymaster with the rank of lieutenant, with date of rank of July 1,1918.

“ 4. Reference is invited to opinion of the Attorney General dated June 18,1920.”

The Comptroller of the Treasury, however, affirmed the adverse decision of the auditor.

III. The plaintiff has received only the pay of a chief pay clerk, being the same as that of an ensign in the Navy on the active list, from November 1 to 19, 1918, and a corresponding rate of pay on the retired list from November 20, 1918, to date.

If entitled to be paid as a lieutenant in the Supply Corps from November 1 to 19, 1918, as on the active list, and from November 20, 1918, to date as on the retired list, he would receive a difference in pay amounting to $2,859.56.

Hay, Judge,

delivered the opinion of the court:

The plaintiff was a chief pay clerk in the United States Navy when he received a temporary appointment as assistant paymaster with the rank of ensign from July 1, 1917, and was advanced in rank to lieutenant to date from July 1,1918, and continued to serve as lieutenant with temporary rank until his temporary appointment was revoked by the President.

The statute which authorized his temporary appointment was the act of May 22,1917,40 Stat. 84, and reads as follows:

> “Sec. 4. Additional commissioned officers in the Navy and Marine Corps, based upon the temporary increases herein authorized in the number of enlisted men, shall be *30temporarily appointed by the President, in his discretion, with the advice and consent of the Senate, * * *.

> “Sec. 8. That all temporary appointments or advancements authorized by this act shall continue in force only until otherwise directed by the President or until Congress shall annul or repeal the authorization for the increases herein provided and not later than six months after the termination of the present war.”

Under the provision of the foregoing act the President had the authority, with the advice and consent of the Senate, to appoint the plaintiif to a temporary office; and he also had the authority to continue the plaintiff in his temporary office until he (the President) should direct otherwise. There is no limitation upon the power of the President to revoke the temporary appointments when they have been made; he can exercise his power at any time; but when once the power is exercised he can not again make a temporary appointment except in the manner prescribed by the statute — that is, with the advice and consent of the Senate.

The plaintiff was on August 28, 1918, called before a retiring board. When so called he was chief pay clerk in the Navy, and was also a lieutenant in the Navy by temporary appointment by virtue of the provisions of the statute above cited. The retiring board on August 28, 1918, found that the plaintiff was physically incapacitated for service; that said incapacity was permanent; and that it was incurred in the line of duty as a result of an incident of the service prior to his temporary appointment. The findings of the retiring board were forwarded to the President, who, under the law, is given the authority to approve or disapprove them, and who alone can direct that the officer shall be placed upon the retired list.

Subsequent to the action of the retiring board, and before its findings were passed upon by the President, on October 25, 1918, the President revoked the temporary appointment of the plaintiff in a letter dated October 25, 1918, which letter is set out in full in Finding I.

On November 20, 1918, the President approved the findings of the retiring board, and by direction of the President *31the plaintiff was placed on the retired list as a chief pay clerk. The plaintiff was notified of said retirement on December 17,1918.

On August 19, 1919, the Secretary of the Navy advised the plaintiff in a letter of that date that the action of the department in transmitting to him its letter of October 25, 1918, purporting to revoke his temporary appointment as lieutenant in the Navy in order to retire him in his former rank was illegal, and that said letter was revoked. The letter further advised the plaintiff that he was to regard himself as having been transferred to the retired list of the Navy in the temporary grade and rank held by him — that is, assistant paymaster with rank of lieutenant.

Whereupon the plaintiff made a claim for payment as of the rank of lieutenant from November 1, 1918, to the Auditor of the Navy Department. The auditor disallowed the claim and the Comptroller of the Treasury affirmed the auditor’s decision. The plaintiff has brought suit in this court to recover the sum of $2,859.56, the difference in his pay on the retired list as chief pay clerk and lieutenant in the Navy.

There is no doubt that if the plaintiff at the time of his retirement had been a lieutenant in the Navy of the United States, although only holding a temporary appointment to such office, he would have been entitled under the law to have been retired as a lieutenant. (See section 9, act of May 22, 1917, 40 Stat. 86.)

The case therefore turns upon the question, Was the plaintiff at the time of his retirement a lieutenant in the Navy?

By section 4 of the act of May 22, 1917, he was given the appointment of assistant paymaster with the rank of ensign, and by service had in July 1, 1918, attained the rank of lieutenant in the Navy. When he was called before the retiring board on August 28, 1918, he still was holding the office of assistant paymaster with the rank of lieutenant, and when that board made its findings he was a temporary assistant paymaster, and the board decided “ that Assistant Paymaster (T) Carl E. Beaty, U. S. Navy (chief pay clerk, *32IT. S. Navy), is incapacitated for service, etc.” (See findings of the board, set out in Finding I.) But on October 25, 1918, the Secretary of the Navy, by direction of the President, informed the plaintiff that his temporary appointment was revoked, and by this revocation the plaintiff reverted to his status as chief pay clerk, United States Navy, and on November 20, 1918, he was placed on the retired list as chief pay clerk by order of the President. After the plaintiff was thus placed upon the retired list as chief pay clerk the Secretary of the Navy undertook to declare that the action of the President in revoking the temporary appointment of the plaintiff was illegal, and that in effect the plaintiff’s temporary appointment had never been revoked, but that he was in fact a lieutenant and not a chief pay clerk when he was placed upon the retired list. The records show that the temporary appointment of the plaintiff was revoked by “ the direction of the President.” It is beyond question that the President had the power to revoke at any time any temporary appointment made under the act of May 22,1917. There was nothing illegal in the action of the President. He had the power to revoke, and exercised it, and having exercised it, the plaintiff ceased to be a temporary assistant paymaster and reverted at once to his status of chief pay clerk. The only way in which he could have been restored to his temporary office was by a new appointment made in accordance with the provisions of the statute. This was not done by the President. *United States*v. *Corson,*114 U. S. 619; *Mimmack*v. *United States,*97 U. S. 426. It follows that the Secretary of the Navy could not by a departmental letter do what the President himself could not. The plaintiff at the time of his retirement not being a lieutenant in the Navy could not be retired as such, and therefore is not entitled to the additional pay which he claims.

The petition must be dismissed. It is so ordered.

Graham, *Judge;*Downet, *Judge,*and Campbbeu, *Chief Justice,*concur.