Street v. United States
Decision Date | 03 February 1890 |
Citation | 133 U.S. 299,33 L.Ed. 631,10 S.Ct. 309 |
Parties | STREET v. UNITED STATES |
Court | U.S. Supreme Court |
This is an appeal from a judgment of the court of claims, (24 Ct. Cl. 230.) Appellant brought his action in that court to recover, not for services actually rendered, but for 16 years' salary as first lieutenant, claiming that this was due by reason of an alleged illegality in the order of January 2, 1871, discharging him from the service. That order is therefore the matter of inquiry.
In 1869 and 1870 acts of congress were passed looking to a reduction in the army, and the order in question was made in pursuance of the last of these acts. The intent of congress is obvious, and all proceedings had to carry such intent into effect should be liberally construed, and not subjected to any such technical limitations as will thwart such obvious purpose. The act of July 13, 1866, (14 St. 92,) has no bearing on the case at bar; for, as held by this court in Blake v. U. S., 103 U.S. 227, it simply placed a limitation on the personal power of the president, as commander in chief, in time of peace, to dismiss from the service. It was not intended to have, as it could not have, any effect on the power of a subsequent congress to reduce the army by appropriate legislation in respect to either its officers or enlisted men. The act of March 3, 1869, (15 St. p. 315, §§ 2-7, inclusive,) is significant only as indicating the intent of congress that the army should be reduced, for the method of reduction there provided is simply the cessation of enlistments and appointments. Evidently the reduction by this method was not as rapid as was desired, for on July 15, 1870, an act was passed making provision for a direct reduction, (16 St. 315.) Section 2 authorizes and directs the president to reduce, on or before the 1st day of July, 1871, the number of enlisted men to 30,000. With respect to the officers, there were several sections aimed at reduction,—some abolishing certain offices; others providing that no appointments to particular offices should be made until the number of incumbents was reduced below a prescribed limit. In addition, there were four provisions having general application. Section 3 authorized the president to grant an honorable discharge to all officers applying on or before the 1st of January, 1871, and giving the officers so discharged an additional year's pay and allowances. Sections 4 and 5 increased the retired list to 300, and authorized the president to place on such list, on their own application, officers with 30 years' service. The other provisions are found in sections 11 and 12, which, as being the sections specially bearing on the questions in this case, are quoted, as follows
It appears from the findings that on October 27, 1870, the claimant, who was on active duty at Fort Bidwell, Cal., was reported by the department commander, Lieutenant Colonel George Crook, as unfit for the proper discharge of his duties from other causes than injuries incurred or disease contracted in the line of his duties. His name was submitted to the board organized in pursuance of the eleventh section quoted supra. On the 17th of November the board requested that he, with others named, be given a hearing, as required by that section. On November 19th the adjutant general informed the board that the stations of these officers were so remote that it was impossible for it to consider their cases, and that the secretary of war had directed that they be not ordered to appear. In compliance with this order, on November 22d, the papers in these cases were returned to the secretary of war; in other words, the proceedings initiated under section 11 were abandoned. No inquiry was ever made as to the alleged unfitness for the proper discharge of his duties from causes other than injuries incurred or disease contracted in the line of duty. It appears, further, that on January 2, 1871, January 1st being Sunday, an order was issued by the secretary of war, which, so far as it affects this claimant, reads as follows:
'WAR DEPARTMENT, ADJUTANT GENERAL'S OFFICE.
'WASHINGTON, January 2, 1871.
'By direction of the president, the following officers of the army are transferred, assigned, or mustered out of the service, to take effect from the 1st instant:
I. Transfers to the list of supernumeraries, under section 12 of the act approved July 15, 1870.
* * *
First Lieutenant Harlow L. Street, first cavalry.
* * * II. Transfers and assignments to fill vacancies to thepresent date.
* * *
First Lieutenant Max Wessendorff, unassigned, to the first cavalry, vice Street, transferred to the list of supernumeraries.
* * *
III. Unassigned officers whose commissions have...
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