#### WALKER A. NEWTON v. THE UNITED STATES.

No. 12329

April 23, 1883.

The *Aot of July*15,1870, §17, oh. 204, (16 Stat. _L., 319), authorized the President to drop from the rolls of the Army for desertion any officer absent from duty three months without leave.

On the 25th of July, 1870, an order was issued "by direction of the President dropping the claimant, who was a lieutenant in the Army, from the-rolls as “absent since August 14, 1869.”

On the 29th of November, 1879, the claimant made application to the President for a court-martial under Rev. Stat., § 1230, which was refused.

He sues for the salary of the office, claiming that he has never been legally removed. _

Held :

I. Under the Act of July 15,1870, ch. 294, § 17, authorizing the President to drop from the rolls of the Army for desertion any officer absent from duty thr4e months without leave, the jurisdiction to find the fact of desertion was vested in the President alone, and his decision therein cannot be reviewed by this court. , >

II. But if the court were authorized to review the President’s findings, it is not certain that a different result would have been reached on the facts stated in this case.

III. When an officer of the Army claims that he has been illegally dismissed. or dropped from the rolls, and seeks the benefit of the provisions of Rev. Stat., § 1230, he must make his application thereunder for trial by oourt-martial within a reasonable time after dismissal, or bis acquiescence will be presumed. The claimant's delay of nine . years to ask for a trial was unreasonable, and he must be presumed’ to bave acquiesced in tbe order of the President.

IV. The conflicting provisions of Rev. Stat., §§ 1229, 1230, and the previous statutes therein re-enacted, in relation to, the dismissal of officers and their rights to trial by court-martial, considered and explained.

The following are the facts found by the court:

I. February 14, 1868, the claimant was appointed second lieutenant of the Thirty-fourth Regiment of Infantry of the United States Army.

April'12,1869, the Thirty-fourth Regiment was disbanded in Mississippi, and the claimant became unassigned and put on waiting orders.

July 14, 1869, the claimant was assigned to the Thirteenth *436Begiment, then in Dakota, and ordered to join it. He reported by letter to the officer in command prior to .the 20th of August.

August 20, 1869, this order was revoked, and the claimant was ordered to report to the commanding general, department of Louisiana, New Orleans. On the same day that general was ordered to arrest the claimant on his arrival at New Orleans, •and have him tried by court-martial for making duplicate assignments of his pay for the month of May, 1869. No copy of this order was sent to the claimant, for the reason that his address was unknown.

In the meanwhile the colonel of the-Thirteenth Begiment liad assigned him to Company E, but revoked the assignment as soon as he was informed that the order of July 14 had been revoked.

II. The'following letter was received at the Department September 10,1869:

Holly Strings, Miss., *Sept.*2, 1869.

Gbnbkal : I have the honor to report that my present station is Holly Springs, Miss.

Having received no order to join any regiment, I start immediately for Washington.

I am, general, very respectfully, your obedient servant,

W. A. Newton,

*lieutenant, TJ. S. A., late Thirty-fourth Infantry.*

To the Adjutant-General, U. S. Army,

*Washington; D. C.*

Nothing was heard from claimant at Army headquarters^ either in person or by writing, from September 2,1869, until some time in the year 1879, when he applied to the President to be restored to his “ position and rank in the United States Army.”

The Army Begulations in force at the time required officers who were prevented by sickness from joining their stations to transmit monthly certificates to their commanding officers and to the Adjutant-General. Claimant had full notice of this, but failed to transmit any such certificates.

TIT. Claimant’s active military duty as an officer of the Army ceased December 5, 1868, when he left his post under a leave of absence. This was twice extended by due authority, and his absence was further protracted by an illness or disability, *437evidenced by surgeon’s certificates'forwarded to the War Department, till April 14,186b. This disability was certified to be in consequence of a gunshot wound perforating the left thigh. ,No record exists, however, of claimant ever having been wounded either in the volunteer or regular service.

IY. General Orders No. 16, of March 11, 1869, consolidated the Thirty-fourth and Eleventh Begiments of Infantry and designated them as the Sixteenth. ! General Orders No. 17, of March 15,1869, supplemental to thé above, required all officers who were in excess or unassigned to report their address monthly, according to regulations, as “awaiting orders.” This monthly report was a regulation of the Army.

General Orders No. 4, of April 12, 1869, designated claimant as one of the unassigned officers.

In the Army Begister for 1870 the claimant is reported as unassigned.

Y. The following order was made at the time of its date:

War DEPARTMENT,

Adjütant-Generaí’s Office,

*Washington, July*25, 1870.

Under the provisions of section. 17 of the act approved July 15, 1870, the following-named officers are, by direction of the President, hereby dropped from the, rolls of the Army for desertion:

1st Lieutenant *Levant W. Barnhart,*4th U. S. Cavalry, absent since April 7, 1869.

1st Lieutenant *William J. Balterson,*5th U. S. Artillery, absent since August 14, 1869.

2d Lieutenant *Walker A. Kewton,*unassigned, absent since August 20, 1869.

By order of the Secretary of War:

E. D. Townsend,

*Aclj utant- General.*

July 25,1879, the claimant applied to the President for a reconsideration of - his case. November 29, 1879, he made formal application to the President in writing for a trial by court-martial, under section 1230 of the Bevised Statutes, setting forth under oath that he had been wrongfully dismissed. December 10, 1879, the application was refused.

YI. The claimant was last paid for May, 1869.

*438*Mr. 'James Loiondes*for tbe claimant:

On tbe 15tb July, 1870, Congress passed tbe following act:

The President of the United States is authorized to drop from the rolls of the Army for desertion any officer who is now or who may hereafter he ah-sentfrom duty three months without leave. (16 Stat. L., 319, ch. 294, $ 17.)

This statute gave tbe President power to drop officers from tbe rolls of tbe Army in one specific case, viz, that of absence from duty three months without leave.

1. Tbe question in tbe present suit is whether the dropping of the claimant was an exercise of this power. If be had at tbe time of bis being dropped been absent three months from duty without leave, there was a proper exercise of tbe power; if be bad not been so absent, tbe dropping him from the rolls was illegal.

Tbe fact is made out by tbe evidence in. tbe case that when 'be was dropped tbe *claimant had not leen absent from duty three months without leave; he had not been absent from duty for any ¡period; he had not been absent without leave.*

2. Tbe. President did not, as appears from tbe order itself, find tbe facts on which bis power rested, but professed to exercise bis power by reason of other facts, which do not suffice in law to j ustify it. I] pon tbe face of tbe order bis act in dropping tbe claimant was illegal.

3. Tbe instances in which a court in determining rights is precluded from looking into tbe facts on which tbe rights depend are exceptional. Tbe present case is not one of them.

Judgments of courts, estoppels between individuals, decisions by arbitrators, decisions by persons vested with discretionary power, decisions by persons vested with tbe exclusive power to decide, are such exceptional instances.

■ In tbe present case tbe President bad no discretion, and there is nothing in tbe act which makes bis decision final.

Tbe doctrine that tbe act of an officer of tbe G-overnment affecting tbe rights of others cannot be questioned in tbe courts is a dangerous one, and ought not to be extended.

Tbe cases are numerous in which officers of tbe Government have been compelled by tbe courts to perform duties, or in which the wrongful exercise of their power has been remedied.

4. It has been decided by tbe Supreme Court of tbe United States, and this court, that tbe decision of tbe President on an *439officer’s status is not conclusive. *(Mimmaek’s Case,*10 G. Gis. R., 596, and 97 U. S. R., 426; *McElrath’s Case,*12 O. Gis. R., 212, and 102 U. S. R., 426; *Blalce’s Case,*14 O. Ols. R., 462, and 103 U. S. R., 227.)

5. Tbe claimant delayed a long time in asserting Ms rights, and it may be contended that bis conduct amounted to an abandonment of bis office.

Abandonment is a question of intention, and the intention to abandon may be inferred from non-user. But there cannot bé non-user when there is no opportunity to use. In two ways the claimant was without opportunity to use his office: 1st. Being unassigned, he had no duties to perform or which he could offer to perform; his whole duty was tó- await orders. 2d. He was deprived of the possession of his office by the President. Where there has been an ouster, there cannot be abandonment.

After the ouster, the claimant had only a right of action, and it may be said that he abandoned that. But rights of action are not the subject of abandonment. They are destroyed only by provisions of the statutes of limitation.

The claimant did no act which showed acquiescence in the order dropping him. '

*Mr. T. H. Howe*(with whom was *Mr. Thomas*Simons, Assistant Attorney-General) for the defendants:

1. General Orders No. 95, of July 25, 1870, is in form and substance a sufficient compliance with the 17th section of the Act of July 15,1870. It is immaterial that the order is not signed by the President. It is immaterial that the fact of the claimant’s absence for three months without leave is not set out in the order. (See opinion of Attorney-General of February 16,1881; *Woolner’s Case,*13 G. Ols., R., 355; *Kaufman’s Case,*12 ibid., 659; *Wilcox*v. Johnson, 13 Pet., 498; *United States*v. *Bliason,*16 Pet., 302; *Hickey y. JELuse,*56 Me., 495.)

2. The claimant was in fact “absent from duty three months without leave.” He was required by general orders and by ■ Army Regulations to advise the Department of his whereabouts each month. No report had been made by him since the 2d of September, 1869. This silence in defiance of regulations justified the President in treating him as an officer absent without leave.

*4403. To determine whether claimant was a deserter or not was placed by the act within the President’s jurisdiction. His action cannot be reviewed here. (Attorney-General’s opinion of February 16,1881; *Gent. Pao. B. R. Go.*v. *Placer County,*43 Gal., 365 ; *Martin*v. *Mott,*12 Wheat., 19 ; *Birdsall*V. *Phillips,*17 Wend., 464; *Gibbs*v. *Co. Oomrs.,*19 Pick., 299; *United States*v. *Lawrence,*3 Dallas, 42; *Daily’s Gase, 17*O. Ols. It., 144; *Dunnigan’s Gase,*ibid., 247; *Panic of Greencastle’s Case,*15 0. Ols. R., 225; *Woolner’s Gase,*13 ibid., 355; *Gratiot’s (Jase,*1 ibid., 258; *McFlrath’s Gase,*12 ibid., 201; *Ibid.,*102 U. S. R., 426; *Plaice’s Gase,*ibid., and 14 O. Ols. R., 462; 103 U. S. R., 227; *Page*v. *Hardin, 8 B.*Monroe, 656.)

4. The claimant will be held to have acquiesced in the act of the President. He is estopped from denying its legality. (1 Green-leaf on Evidence, §§ 27,197, 207,210 ; *Duryea’s Case,*17 0. Ols. R., 24; *Wildeburn’s Gase,*13 ibid., 62; *Pvans*v. *Snyder,*64 Mo., 516; *Landrum*v. *Panic,*63 ibid., 48; *Collins*v. *Rogers-,*ibid., 515; *Preston*v. *Am. Linen Go.,*119 Mass., 513; *Alvord’s Gase, 8 G.*Ols. R., 364; *White*v. *Macon,*3 Oranch, 0. 0., 250; Herman’s Law of Estoppel, §§-323, 342; *Panics*v. *Purnam,*61 Mo., 76; *Chapman*v. *Ohapmam,*59 Pa. St., 214; *Morris Canal Go.*v. *Lewis,*12 N. J. Eq. (1 Beas.), 323; Bigelow on Estoppel, 578; *Morris*v. *Bixford,*18 N. Y., 552; Herman on Estoppel, §§ 474, 475; *Morgan*v. *B. B. Go.,*96 U. S. B., 716; *Higgins*v. *Ferguson,*14 Ill., 269; *Chicago Packing Go.*v. *Tilton,*87 Ill., 547.)

Impeachable transactions may be rendered valid by acquiescence for a great length of time. (Herman on Estoppel, § 477; *Sibbering*v. *Marl of Parearnos,*3 De G. & Sin., 735.)

5. Claimant will be held to have abandoned his office by reason of his non-user thereof. *(Barbour’s Gase,*17 O. Ols. R., 149; *Van Orsdall*v. *Hazard,*3 Hill (N. Y.), 243 ; *State*v. Auclcer, 2 Richardson, 245 ; *Page*v. *Hardin,*8 B. Monroe, 648.)

OPINION.

Scofield, J.,

delivered the opinion of the court:

July 15,1870, Congress enacted the following law:

> Sec. 17. *And be it further enacted,*That *the*President of the United States he, and he is hereby, authorized to drop from the rolls of the Army for desertion any officer who is now, or who may hereafter he, absent from duty *441three months without leave; and any officer so dropped shall forfeit all pay and allowances due or to become due, and shall not he eligible for reappointment. (16 Stat. L., oh. 294, 319.)

At that time tbe. claimant was a second lieutenant in the Army, having been appointed February 14, 1868.

July 25, 1870, the following order was made by the President : -

> War Department,

> Adjutant-Generae’s Office,

> *Washington, July 25,*1870.

> Under the provisions of section 17 of the Act approved July 15, 1870, the following named officers are, by direction of the President, hereby dropped from the roils of the Army for desertion:

> 1st Lieutenant *Levant W. Barnhart,*4th U. S. Cavalry, absent since April 7, 1,869.

> 1st Lieutenant *William J. Patterson,*5th U. S. Artillery, absent since August 14, 1869.

> 2d Lieutenant *Walker A. Newton,*unassigned, absent since August 20, 1869.

> By order of the Secretary of War.

> E. D. Townsend,

> *Adjntant- Gen eral.*

The claimant alleges that he was not absent from duty for three months without leave, and that the order of the President was therefore void.

As this act, considered by itself, authorized the President to drop from the rolls of the Army any officer who should be absent from duty three months without leave, and provided no tribunal by which the alleged absence could be ascertained, it necessarily devolved upon him the duty of finding the fact as well as applying the law. Upon what evidence he acted, whether more or less than is laid before us, does not appear. He may have considered evidence which this court would reject; he may have misunderstood it, or erred in his judgment' as to its force and effect, but the law of 1870 provided no mode of review. Congress undoubtedly supposed that the Oom-mander-in-Ohief of the Army was capable of deciding this single fact without mistake or bias. At all events, we are not authorized by this act'to review-his finding of fact. Eight or wrong,.we must presume the fact to be as the President determined it.

But if we were authorized to review his finding, it is not at all certain that we could arrive at a different conclusion. It is *442true that tbe claimant was not assigned to active duty after August 20, 1869, but he was still subject to military control and Army regulations. By these regulations he was required to report monthly to the Adjutant-General. ' This duty he entirely neglected. In consequence of this neglect his whereabouts was unknown at the Department, and no orders could be given him. August 20,1869, he was ordered to report to the commancting general at New Orleans, and that officer was ordered to place him under arrest and try him by court-martial for assigning his pay to two different parties for the same month, but the order could not be served upon him, because he reported to the Adjutant-General no address. It is not improbable that he heard of these orders and determined to avoid a trial, for soon after he forwarded the following letter:

> Holly Sinkings, Miss., *Sept.*2,18G9.

> Gbnbkal: I have flic honor to report that my present station is Holly Springs, Miss.

> Having received no order to join any regiment, I start immediately for Washington.

> I am, general, very respectfully, your obedient servant,

> W. A. Newton,

> *Lieutenant, XX. S. A., late Thirty-fourth Infantry.*

> To the Adjutant-General, IJ. S. Army¿

> *Washington, D. 0.*

Although this letter is dated September 2, it was not received at the Department until eight days afterwards, and he did not, in pursuance of his announcement, appear in Washington. From that time he never reported, as required by the Regulations, to the Adjutant-General. The Department had no official knowledge of him after this time until he applied to the President about ten years afterwards for a reconsideration of his case. But whether these and other similar facts set out in the findings would justify the conclusion that the claimant was absent from duty for three months without leave is not now a question for us to' decide..

Thus far we have considered the case as controlled solely by the Act of July 15,1870. We must now consider it in connection with other acts.

July 25,1879, the claimant made application to the President for a reconsideration of his case, claiming that without a court-martial he had been illegally dropped from the rolls.

*443November 29,1879, he again made application to the Presi-' •dent to convene a court-martial for his trial under the provision •of section 1230 of the Eevised Statutes. Both applications were refused.

Claimant now contends that the order dropping him from the rolls is- void for two reasons—

First. Because the order was not made in pursuance of a sentence of a court-martial, as required by the *Act of July*13, 1866, ch. 176, (14 Stat. L., 92, now the last clause of section 1229 •of the Eevised Statutes). This act provides that—

> No officer in tlie military or naval service shall in time of peace he dismissed from the service except upon and in pursuance of a sentence of a ■court-martial to that effect.

Second. Because on his application for a trial under the *Act ■of March*3, 1865 (13 Stat. L., 489, now section 1230 of the Ee-vised Statutes), a court-martial was not convened within six months. That section is as follows:

> ' When any officer dismissed hy 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 x>ermit, 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 * * * the order of dismissal hy the President shall he void.

Here we have three different acts of Congress, not altogether harmonious, bearing upon the case: First, the Act of 1865, giving a dismissed officer the right of trial by court-martial; second, the act of 1866, forbidding dismissals without a court-martial; and, third, the Act of 1870, authorizing the President to drop from the rolls of the Army any officer absent from duty without leave for three months.

The history of these provisions explains the want of harmony. The *Act of July*17, 1862 (12 Stat. L., 596, §17), authorized the President to dismiss officers as he saw fit. It was supposed to be a war necessity. As the war approached its close, the Act of March 3,1865, was passed to restrain the unlimited power of dismissal. After the war was over, the Act of July .13, 1866, was passed, repealing the Act of 1862 altogether, but left the restraining Act of 1865 remaining upon the statute-books, but with nothing which it could restrain. This repealing Act of 1866 provided, as an additional safeguard to *444officers; that no officer should be dismissed except upon the sentence of a court-martial. These three acts are re-enacted in the Bevised Statutes. The Acts of 1870 and 1806 are put together as section 1229, and the restraining Act of 1865 is by itself as section 1230, As they now stand, section 1229 provides that the President may drop from the rolls certain officers, and then that it must be done only by the sentence of a court-martial; and section 1230, that officers dismissed by the President shall be entitled to be subsequently tried by a court-martial.

Whatever may be the construction to be placed upon these provisions since they have been brought together in the Be-vised Statutes, we are of the opinion that the Act of 1870 was intended to give to the President a fresh grant of power to be exercised at that time, independent of the Acts of 1865 and 1866.

But whatever may be the construction of these several acts, either before or after revision, we are of the opinion that an officer illegally or wrongfully dropped from the rolls by the President, under the Act of 1870, should demand his restoration or make his application for trial by court-martial within a reasonable time. Long delay, by changes, promotions, and appointments, may work great confusion in the Army Begister and great injury to many officers. Witnesses disappear and facts are forgotten. In this case the claimant waited nine years before making his application. During all this time he did not report himself to the Department, neither rendered nor offered to render any service, made no claim to the office or its pay, and now gives no good reason for his long silence. Under these circumstances, in our opinion, the law should presume acquiescence.

To declare the order of the President void at this late day, and thus authorize the claimant to draw pay from May, 1869, amounting, as he claims, to $16,800, would be paying a great price for negligence of duty while in the service, and greater negligence of his supposed rights after he was dropped.

The petition is dismissed.