Elrath v. United States

Citation102 U.S. 426,26 L.Ed. 189
PartiesMcELRATH v. UNITED STATES
Decision Date01 October 1880
CourtUnited States Supreme Court

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 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 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...

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