United States v. Royer

• Decision Date: 25 May 1925
• Docket Number: No. 359,359
• Citation: 59 Ct. Cl. 199,69 L.Ed. 1011,45 S.Ct. 519,268 U.S. 394
• Parties: UNITED STATES v. ROYER
• Court: U.S. Supreme Court

268 U.S. 394

45 S.Ct. 519

69 L.Ed. 1011

UNITED STATES

v ROYER.

No. 359.

Argued April 30, 1925.

Decided May 25, 1925.

Mr. Alfred A. Wheat, of New York City, and the Attorney General, for the United States.

Mr. George A. King, of Washington, D. C., for appellee.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

On August 5, 1918, General Pershing, commanding the American Expeditionary Forces, recommended by cable to the Chief of Staff the appointment of respondent, then first lieutenant, as major in the Medical Reserve Corps. The Surgeon General of the Army, to whom the recommendation was referred, recommended an approval of the appointment of respondent as captain, and this was ratified by the Secretary of War. On September 23, 1918, the Adjutant General cabled General Pershing that the appointment as major had been made, and five days later the Surgeon General's office in France notified the respondent that he had been commissioned as major and requested him to submit his letter of acceptance and oath of office without delay. Respondent submitted a letter of acceptance and executed an oath of office on October 18, 1918, and thereupon assumed the insignia of rank of major, performed the duties appropriate to that office, and was so officially addressed. In fact, respondent had been appointed captain and not major; but subsequently, on February 17, 1919, he was promoted to the rank of major. He was not informed until February 19, 1919, that there had been a mistake in the first aotice of his appointment as major. He was paid by the pay officers as major during his entire service from October 18, 1918, to the date of his discharge on August 31, 1919. On the latter date there was deducted from his pay, as an overpayment, the sum of $240.19, being the difference between the pay of a captain and that of a major from October 18, 1918, to February 16, 1919. This suit was to recover that amount. The court below, upon the foregoing facts, gave judgment for respondent upon the ground that——

'Having been ordered by competent authority to assume the rank of major and having discharged the duties of that rank in good faith in time of war, and having been paid the emoluments of that rank in good faith by the officers who are intrusted with the duty of making such payments, he cannot be required to return the money so received to the government.' Royer v. United States, 59 Ct. Cl. 199.

The Adjutant General, from the nature of his office, is the appropriate channel through which information in respect of appointments and promotions is transmitted. U. S. Army Regulations, 1913, p. 14, par. 21; Dig. Op. Judge Advocate General, 1912, pp. 87, 88. That officer having informed General Pershing that the appointment of respondent as major had been made, General Pershing was warranted in giving notice to respondent that he had been so appointed, and respondent was justified in accepting and acting upon it. Indeed in time of war and in the field of actual military operations it was his duty to do so. Was respondent, under these circumstances, a major de facto? The government contends not upon the grounds: (1) There was no attempt to appoint him to the office of major by any officer possessing the power of appointment; (2) there is no proof that there was a vacancy in the office of major. Neither ground is tenable.

1. While some general expressions will be found in the decisions tending to support the government's contention, the rule is well established that to constitute an officer de facto it is not a necessary prerequisite that there shall have been an attempted exercise of competent or prima facie power of appointment or election. The leading case is State v. Carroll, 38 Conn. 449, 456-466, 472, 9 Am. Rep. 409, where the English and American cases are fully reviewed; In re Ah Lee (D. C.) 5 F....