Andes v. Slauson, 130 U.S. 435 (1889)
Case details
Citation
130 U.S. 435
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Apr. 15, 1889
Panel
Coxe (Judge)
Majority
Gray (Justice)
Majority
Fuller (Chief Justice)
Majority
Harlan (Justice)
Dissent
Miller (Justice)
' ANDES u SLAUSON.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK.
No. 225. Argued March 29,1889. — Decided April 15,1889.
This court has no authority to review on bill of exceptions rulings of a judge of the Circuit Court at the trial of an action at law, had before him at chambers, by consent of the parties, under an order providing that it should be so tried, and that if at such trial there should appear to the judge to be in issue questions of fact of such a character that he would submit them to a jury if one were present, they should be submitted to a jury at the next term. v
Albert Slauson brought two actions against the town of Andes in the Circuit Court of the United States for the Northern District of New York, alleging in the complaint in each action that he was a citizen of the State of New Jersey and the défendant was a municipal corporation of the State of New York; that the defendant subscribed to the stock of the Delhi and Middletown Railroad Company, and issued its bonds, with coupons for interest annexed, in payment thereof, in accordance with the law of New York of 1869, chapter 907; and that certain of those coupons passed into the possession and became the property of the plaintiff in good faith and for a valuable consideration, and payment thereof was duly demanded at maturity and refused. The amount for which judgment was asked in the first action was $2709 and interest, and in the second action $2044 and interest.
In the answer to each complaint, the defendant admitted that it was a municipal corporation of the State of New York, but denied all the other allegations of the complaint, and alleged that the coupons sued on were in fact the property of citizens of New York, in whose behalf 'and for whose benefit the action was prosecuted; that at the time of its commencement an action was pending in the Supreme Court of the State of New York, brought by residents and taxpayers of the p. 436defendant town against the holders of the bonds and coupons, to restrain their transfer and collection, on the ground that they were illegal and void; and that, if the plaintiff held any of the coupons, he took them without consideration, and for the purpose of avoiding and nullifying the effect of any judgment that might be recovered in that court, and of enabling him to bring an action in the Circuit Court of the United States.
The subsequent proceedings, as shown by the record transmitted to this court, were as follows:
1st. An order, filed June 18, 1884, for trial before the District Judge at chambers, in these words:
“At a stated term of the Circuit Court of the United States of America for the Northern District of New York, in the Second Circuit, held at Canandaigua, on the 18th day of June, a .d. 1884.
“Present: The Honorable A. C. Coxe, Judge.
“Albert Slauson against The Town of Andes. No. 2512. “Albert Slauson against The Town of Andes. No. 2513.
“These actions having been each moved for trial on the part of the plaintiffs therein at this term of court, and application for a postponement having been made on behalf of the defendant, it is now, at the suggestion of the court and by consent of parties, ordered that the said actions pass said term, and be tried before Hon. A. C. Coxe, at his chambers at Utica, without a jury, with the same force and effect as if tried at a circuit term of this court, such trial to be had within two weeks after the first day of September next, at a time to be fixed by the judge, unless the parties shall agree; and if it shall appear to said judge upon such trial that there are questions of fact arising upon the issues therein, the same are to be submitted to a jury at the November term, provided the said questions of fact are of such a character that the judge would submit them to a jury if one were present; and that no further notice of trial is required.
“Alfred C. Coxe.”
2d and 3d. Two orders, each entitled “ At a stated term of the Circuit Court for the Northern District of New York, held at Utica on October 1, 1884, Present Hon. A. C. Coxe, Judge,” and signed by him, and reciting the trial of the two actions together by consent of parties before him at his chambers in Utica — the one, an order filed November 15,1884, for the consolidation of the two actions; and the other, an order filed December 4, 1884, by which the judge made a general finding for the plaintiff upon the facts, and found that in the consolidated action there was due to the plaintiff from the defendant the sum of $5316.46, (being the aggregate of the sums due in both actions at the day of trial, October 1, 1884,) with interest, and directing judgment for the plaintiff accordingly, with costs.
4th. The judgment of the court, enrolled and signed by the clerk December 13, 1884, by which, after reciting the bringing of the two actions, the order and stipulation of June 18, 1884, the trial of the actions accordingly before the judge on October 1,1884, the order of consolidation, and the judge’s finding as aforesaid, it was adjudged that the plaintiff recover of the defendant the said sum of $5316.46, with interest from the day of trial, amounting to $64.68, and costs taxed at $260.70, amounting in the aggregate to $5641.84.
5th. A bill of exceptions, signed and sealed by the judge October 13, 1885, and filed October 21, 1885, referring to the order of June 18, 1884, and stating that the actions were afterwards brought on for trial together by consent of parties before the judge, without a jury, at his chambers in Utica, on October 1, 1884; setting forth in full the evidence introduced by both parties at the trial; and stating that the defendant excepted to the admission bf specific portions of the plaintiff’s evidence, and asked permission, under the stipulation and order of June 18, 1884, to submit to a jury the questions of good faith, and of the collusive transfer of the coupons in suit, and of the ownership thereof, and that the motion was denied, and exception taken by the defendant to the denial, as well as to the judge’s final decision, order and finding.
6th. The opinion of the judge in favor of the plaintiff, indorsed: “Decision. Filed November 12, 1884.”
The defendant sued out this writ of error.
J/r. Isaac H. Maynard for plaintiff in error.
Mr. John B. Gleason for defendant in error.
Mr. Justice Gray, after stating the case as above reported, delivered the opinion of the court.
The authority of this court to review the judgments of the Circuit Court by bill of exceptions and writ of error is regulated exclusively by the acts of Congress and the practice of the courts of the United States, without regard to the statutes of the State or the practice of its courts. Chateaugay Co., petitioner, 128 U. S. 544. The right of review is limited to questions of law appearing on the face of the record, and does not extend to matters of fact or of discretion; questions of law arising upon the trial of an issue of fact cannot be made part of the record by bill of exceptions, unless the trial is by jury, or by the court after due waiver in writing of a jury trial; and when the trial is by rule of court and consent of parties before a referee or arbitrator, no question of law can be reviewed on error, except whether the facts found by him support the judgment below. Campbell v. Boyreau, 21 How. 223; Bond v. Dustin, 112 U. S. 604, 606; Paine v. Central Vermont Railroad, 118 U. S. 152.
In the present case, there was 'no demurrer, or case stated, or special verdict, or finding of facts by the court or by a referee, presenting a pure question of law. But the pleadings presented issues of fact which, in the legal and regular course of proceeding, could be tried by a jury only, and at a stated term of the court, unless the parties either in writing waived a jury and submitted the case to the court’s decision, or else agreed that the case should be tried and determined by a referee. There was no waiver of a jury trial and submission of the determination of all issues of fact to the court. But the case was tried by consent of the parties before the judge at chambers under an order providing that it should be so tried, p. 439and that “if it shall appear to the judge upon such trial that there are questions of fact arising upon the issues therein, of such a character that the judge would submit them to the jury if one were present,” they should be submitted to a jury at the next term of the court; and the only finding of the judge was a general finding for the plaintiff.
The trial thus ordered, consented to and had, was neither a trial by jury, nor a trial by the court, in accordance with the acts of Congress, but was a trial by the judge as a referee. The trial deriving its whole efficacy from the consent of the parties, the bill of exceptions allowed at that trial was irregular and unavailing, and the facts stated in that bill of exceptions cannot be regarded, nor the rulings stated therein reviewed, by this court. As the questions argued by the plaintiff in error do not appear of record independently of the bill of exceptions, this court has no authority to pass upon them, and no error is shown in the judgment afterwards rendered by the Circuit Court. Campbell v. Boyreau, above cited; Lyons v. Lyons Bank,, 19 Blatchford, 279.
Judgment affirmed.
BADEAU u UNITED STATES.
UNITED STATES v. BADEAU.
APPEALS FROM THE COURT OF CLAIMS.
Nob. 659, 749. Submitted January 4, 1889. — Decided April 15, 1889.
A retired army officer, accepting pay under an appointment in the diplomatic or consular service, is thereby precluded from receiving salary as an officer in the army.
Whether a retired army officer, whose name is dropped from the rolls under the provisions of Rev. Stat. § 1223, in consequence of his accepting an appointment in the diplomatic or consular service of the government, can be restored to the army under the provisions of the act of March 3, 1875,18 Stat. 512, is not decided in this case.
An officer whose name is placed on the retired list of the army by the Secretary of War, in apparent compliance with provisions of law, is an officer de facto if not de jure, and money paid to him as salary cannot be recovered back by the United States.
The case, as stated by the court in. its opinion, was as follows:
On the 21st day of June, 1883, the Secretary of the Treasury, pursuant to § 1063 of the Revised Statutes, and in compliance with the certificate of the Second Comptroller of the Treasury, transmitted to the Court of Claims the claim of Adam Badeau for pay as an officer of the United States Army, “together with all the vouchers, papers, documents and proofs pertaining thereto, that the same might be proceeded in, in said court, as if originally commenced therein by the voluntary action of the claimant;” and thereafter upon the 19th day of February, 1884, the claimant filed his petition in which, after making certain averments, and stating that he was secretary of legation at London from May 19 to December 6,1869, and consul-general at London, April 28, 1870, to September 16, 1881, and at Havana, Cuba, from November 25, 1882, to the date of the filing of the petition, and that he had received pay as a military officer from December 6,1869, to April 30,1870, and from September 16, 1881, to November 25, 1882, he claimed to be entitled to “ the amount of pay and allowances of a captain, mounted, retired from active service, for the period from April 28, 1870, to September 16,1881, and from November 25, 1882, up to the present time, amounting to the sum of eighteen thousand eight hundred and fifty-two dollars and sixty-five cents, not having received such pay or allowances during said period; also, to the additional pay and allowance provided by § 1262 of the Revised Statutes, which section is as follows :
“ There shall be allowed and paid to each commissioned officer below the rank of brigadier-general, including chaplains and others having assimilated rank or pay, ten per centum of their current yearly pay for each term of five years of service.”
A general traverse was filed by the United States, March 8, 1884, and on the 10th of February, 1885, a counter-claim, stating “ that Adam Badeau, the claimant in the above entitled cause, before and at the time of the commencement of this suit was, and still is, indebted to the said defendants in a large sum of money, to wit, two thousand five hundred and sixty dollars p. 441and ten cents, ($2560.10,) for money erroneously paid to said Badeau without authority of law, the same being on account of payments of salary made to him as an army officer, (captain, retired,) from December 31, 1869, to October 31, 1882, during all of which time said Badeau was not in fact in the army nor an officer thereof; ” to which the claimant filed a replication March 9, 1885.
The United States also pleaded the statute of limitations to the larger part of petitioner’s claim.
Findings of fact and conclusions of law were announced by the Court of Claims, May 9, 1887, as follows:
I. On the 21st April, 1869, the claimant, then being a first lieutenant of infantry in the army of the United States, unassigned, was appointed by the President assistant secretary of legation at London. On the 19th May, 1869, he accepted the appointment, filed in the Department of State his oath of office, and embarked for his post, reaching England May 31st, 1869.
II. On the 15th May, 1869, a military board was convened by the following order:
[Special Orders, No. 116. — Extract.]
Headquarters of the Army,
Adjutant Gen’l’s Office,
Washington, May 15, 1869.
12. By direction of the President, a board of officers will assemble in New York City at 12 m. on the 18th inst., or as soon thereafter as practicable, for the examination of Bvt. Brig. General Adam Badeau, 1st lieutenant U. S. Army, for retirement, in pursuance of the act of Congress of the 3d of August, 1861. .
Upon completion of the examination of General Badeau the president of the board will dissolve the board and order the officers composing the same to resume their proper duties.
***** By command of Gen’l Sherman. E. D. Townsend,
Adjutant General.
The board met in New York on the 18th May, 1869, and the following proceedings took place:
New York, May l^th, 12 m.
The board met pursuant to above order. Owing to the illness and consequent absence of Gen’l Reeve the board adjourned.
New York, May Ytth, 4 p.m.
The followingo telegramo was received:
Washington, D. C., MayYth.
General McDowell, New York City:
By direction of the Secretary of War, General Rufus Ingalls is detailed as a member of the retiring board, vice Reeve.
Acknowledge receipt.
E. D. Townsend, Adjutant General.
On receipt of the above telegraphic order the board reconvened.
Present all the members and the recorder.
The board proceeded to consider the case of 1st Lieut. Adam Badeau, bvt. brig, gen’l IT. S. A., who appeared before the board, and having heard the orders convening it read, was asked if he objected to any member named in the orders. He having no objection, the board was duly sworn in his presence by the recorder, and the recorder by the president. . ■ • The board was cleared, and after mature deliberation find “ that 1st Lieutenant Adam Badeau, IT. S. Infantry, bvt. brig, general U. S. A., is incapacitated for active service, and that said incapacity is due to a wound received in the foot whilst on duty as captain and additional aide-de-camp to Brig. Gen’l T. W. Sherman in the assault on Port Hudson in May, 1863.
Irwin McDowell,
Bvt. Maj. Gen’l, Pros'dd Board.
H. Stockton,
1st Lieut. Ord., Bvt. Capt., A. D. C. Recorder of Board.
On the 22d May, 1869, this was approved by the Secretary of War, and on the 25th May the President made the following order:
[Special Orders, No. 126—Extract.]
Headquarters of the Army,
Adjutant General’s Office.
Washington, May 25,1869.
*****
12. Brevet Brigadier General Adam Badeau, 1st lieutenant U. S. Army, having, at his own request, been ordered before a board of examination, and having been found “ incapacitated for active service, and that said incapacity is due to a wound received in the foot whilst on duty as captain and additional aide-de-camp to Brigadier General T. W. Sherman in the assault on Port Hudson in May, 1863,” the President directs that his name be placed upon the list of retired officers of that class in which the disability results from long and faithful service, or from some injury incident thereto, in accordance with §§ 16 and 17 of the act approved August 3, 1861. In accordance with § 32 of the act approved July 28, 1866, General Badeau is, by direction of the President, retired with the full rank of captain, to date from May 18, 1869.
***** By command of General Sherman. E. D. Townsend,
Adjutant General.
III. The claimant held the office of assistant secretary of legation, and received the salary thereof, until the 6th December, 1869, when he resigned. By order of the President December 23, 1869, he was “ assigned to duty in the city of Washington” as an officer of the army, it being stated that the order was to date from December 6, 1869. He drew from the pay department of the army the pay of an active captain for the period from December 6, 1869, to February 21, 1870, and the pay of a retired captain from February 21, 1870, to April 30, 1870, the pay so drawn amounting to $621.84. He was appointed consul general at London, England, April 28, p. 4441870, and was in the consular service of the government until the commencement of this suit, except for a period of about fourteen months, beginning in September, 1881, and ending in November, 1882.
IV. From May, 1869, until May, 1878, the claimant was borne upon the retired list of the army as having been retired with the rank of captain on the 18th May, 1869. On the 7th May, 1878, the following order was issued:
[General Orders, No. 20.]
Headquarters of the Army,
Adjutant General’s Office,
Washington, May 7, 1878.
The following are announced:
Dropped. *****
In conformity with § 1223 Revised Statutes, and opinion of Attorney General dated December 11,1877. (1) Captain Adam Badeau, U. S. Army, retired, to date from May 19, 1869.
***** By command of General Sherman. E. D. Townsend,
Adjutant General.
The claimant thereupon applied to have the above order revoked upon the ground that he was disabled within the intent of the act 3d March, 1875, and he produced and filed the following certificate:
Bangor, Maine, Feb. 20, 1878.
I, Eugene F. Sanger, physician and surgeon, certify that I was medical director of the 2d division, 19th Army Corps, before Port Hudson, May 27, 1863, and that Captain Adam Badeau, A. D. C. on Brig. Gen’l T. W. Sherman’s staff, received a bullet wound penetrating the instep of the left foot, and making its exit below the internal malleolus. I resected p. 445the 2d cuniform bone, parts of the 1st and 3d cuniform, and the proximal end of the 2d metatarsal bone, on acc’t of which resection he was sent to the rear at New Orleans.
Respectfully, your ob’t servant,
Eugene F. Sanger,
Brevet Lt. Col. and late Brigade Surgeon, late Medical Director, VMh Army Corps, now Examining Surgeon Pension Bureau.
The foregoing surgeon’s certificate was duly referred to the Surgeon General of the army. The order of reference and the Surgeon General’s report thereon were as follows :
War Department, Adjutant General’s Office,
Washington, March 4, 1878.
Respectfully referred to the Surgeon General, U. S. Army, for his opinion as to whether the disability of Captain Badeau, for which he was retired, can be regarded as bringing him within that class of officers specified in the proviso of § 2, act of March 3, 1875, (G. 0. 16 of 1875,) who have “ an arm or leg permanently disabled by reason of resection on account of wounds.”
The proceedings of the Retiring Board in Captain Badeau’s case and other papers are enclosed herewith.
By order of the Secretary of War. E. D. Townsend,
Adjutant General.
Surgeon General’s Office,
March 6, 1878.
Respectfully returned to the Adjutant General of the army with opinion that the evidence submitted is sufficient to establish that Captain Badeau’s case comes properly within that class of officers specified by § 2, act of March 3, 1875, as one m which an arm or leg is permanently disabled by reason of resection on account of wounds.
J. K. Barnes, Surgeon General.
AV hereupon the Secretary of War, on the 3d July, 1878, made the following order, under which the claimant was borne on the retired list of the army up to the time of his bringing this action:
War Department, July 3, 1878.
Respectfully returned to the Adjutant General of the army.
The former decision in Captain Badeau’s case was correct, as the record then stood, but it now appearing that his case comes clearly within the provisions of the proviso to § 2, act of March 3, 1875, his name will be restored to the retired list.
George W. McCrary,
Secretary of War.
V. From the 18th May, 1869, to the 6th December, 1869, the claimant received no pay as a military officer, nor has he received military pay at any time while holding a diplomatic or consular office.
From the 6th December, 1869, to the 21st February, 1870, while assigned to duty in the city of Washington as a retired officer under the act ,21st January, 1870, (16 Stat. 22,) the claimant was paid as a captain in active service the sum of $396.92, during which period he was rendering service as an officer.
From the 21st of February, 1870, to the 31st October, 1882, the claimant was paid as an officer on the retired list, for periods when he was not holding a diplomatic or consular office, the sum of $2163.18.
There has been withheld from the claimant while not holding a diplomatic or consular office his pay as a retired officer from November 1, 1882, to November 25, 1882, amounting to $
There has been withheld from the claimant while holding a diplomatic or consular office between the 19th May, 1869, and the 19th February, 1884, when this action was brought, his pay as a retired officer, amounting to the sum of $
VI. The claimant was beyond the seas at the times when the foregoing claims accrued, and his petition was filed in this court within three years after the disability had ceased.
CONCLUSIONS OF LAW.
The court being equally divided upon the foregoing findings as to the claimant’s right to recover, does, for the purposes of an appeal, frame the folio wing conclusions of law:
The petition of the claimant and the counter-claim of the defendants should both be dismissed.
Thereupon judgment was entered dismissing the petition of the claimant and the counter-claim of the United States. Appeals were prosecuted by both parties to this court, and the records filed herein August 10 and October 5, 1887.
On the 5th of October, 1888, a stipulation was filed, adding to the record certain conclusions and order of the Court of Claims and certain matters introduced in evidence, at a stage of the case prior to the final findings.
Mr. Daniel P. Hays for Badeau.
Mr. Assistant Attorney General Howard and Mr. F. P. Dewees for the United States.
Mr. Chief Justice Fuller delivered the opinion of the court.
Section 2 of the act of March 30, 1868, entitled “An act making appropriations for the consular and diplomatic expenses of the government for the year ending thirtieth June, 1869, and for other purposes,” (15 Stat. 56, 58,) is as follows: “That any officer of the Army or Navy of the United States who shall, after the passage of this act, accept or hold any appointment in the diplomatic or consular service of the government, shall be considered as having: resigned his said office, and the place held by him in the military or naval service shall be deemed and taken to be vacant, and shall be filled in the same manner as if the said officer had resigned the same.” This was carried into the Revised Statutes (1874) as § 1223.
By § 18, c. 42, act of August 3, 1861, (12 Stat. 290,) it was provided “ that the officers partially retired shall be entitled to wear the uniform of their respective grades, shall continue p. 448to be borne upon the Army Register or Navy Register, as the case may be, and shall be subject to the rules and articles of war, and to trial by general court-martial for any breach of the said articles.” And this was re-enacted as § 1256 of the Revised Statutes.
By § 16 of the said act of August 3, 1861, it was provided “ that there shall not be on the retired list at any one time more than seven per centum of the whole number of the officers of the Army as fixed by law,” while by § 5 of the act of July 15,1870 (16 Stat. 317), “the number of officers who may be retired in accordance with existing laws shall be in the discretion of the President: Provided, That the whole number on the retired list shall at no time exceed three hundred;” and this reappears as § 1258 of the Revised Statutes.
By § 23 of the act of July 15, 1870 (16 Stat. 320) “any retired officer may, on his own application, be detailed to serve as professor in any college,” and such is § 1260 of the Revised Statutes.
By the first section of “ An act relating to retired officers of the Army,” approved January 21, 1870, (16 Stat. 62,) it was provided “ that no retired officer of the Army shall hereafter be assigned to duty of any kind, or be entitled to receive more than the pay and allowances provided by law for retired officers of his grade; and all such assignments heretofore made shall terminate within thirty days from the passage of this act;” but by resolution of April 6, 1870 (16 Stat. 372) the law of January 21st was limited so as not to apply “to officers selected by the Board of Commissioners of the Soldiers’ Home, District of Columbia, for duty at that institution, such selection being approved by the Secretary of War,” and this is re-enacted in § 1259 of the Revised Statutes.
By § 18 of the act of July 15, 1870, already referred to, (16 Stat. 319,) it was enacted “ that it should not be lawful for any officer of the Army of the United States on the active list to hold any civil office, whether by election or appointment, and any such officer accepting or exercising the functions of a civil office shall at once cease to-be an officer of the Army, and his commission shall be vacated thereby,” and this is carried into the Revised Statutes as § 1222.
Thus in the acts of 1868 and 1870, and in §§ 1222 and 1223 of the Revised Statutes, Congress distinguished, and adhered to the distinction, between officers on both lists and officers on the active list only, and between ordinary civil appointments and appointments in the diplomatic or consular service. No officer, whether on the active or retired list, could accept appointment in the latter, and remain an officer, but that rule was not applied to retired officers in the matter of holding a civil office.
The second section of the act of Congress of March 3, 1875, reads as follows:
“That all officers of the army who have been heretofore retired by reason of disability arising from wounds received in action shall be considered as retired upon the actual rank held by them, whether in the regular or volunteer service, at the time when such wound was received, and shall be borne on the retired list and receive pay hereafter accordingly; and this section shall be taken and construed to include those now borne on the retired list, placed upon it on account of wounds received in action: Provided, That no part of the foregoing act shall apply to those officers who had been in service as commissioned officers twenty-five years at the date of their retirement; nor to those retired officers who had lost an arm or leg, or has an arm or leg permanently disabled by reason of resection, on account of wounds, or both eyes by reason of wounds received in battle; and every such officer now borne on the retired list shall be continued thereon, notwithstanding the provisions of section two, chapter thirty-eight, act of March thirty, eighteen hundred and sixty-eight: and he it also provided, That no retired officer shall be affected by this act who has been retired or may hereafter be retired on the rank held by him at the time of his retirement; and that all acts or parts "of acts inconsistent herewith be, and are hereby, repealed.” 18 Stat. 512, c. 178.
By § 32 of the act of July 28, 1866, (14 Stat. 337,) it was provided “ that officers of the regular Army entitled to be retired on account of disability occasioned by wounds received in battle, may be retired upon the full rank of the command
vol. CXXX—29 p. 450held by them, whether in the regular or volunteer service, at the time such wounds were received.”
It was within the power of Congress to change the rank here spoken of, and this it did by the act of 1875, which substitutes for “ the full rank of the command held by them ” the “ actual rank held by them,” and which embraces only “ those now borne on the retired list, placed upon it on account of wounds received in action.” Wood n. United States, 107 U. S. 414, 417. Under this act officers of twenty-five years’ service at the date of their retirement, and officers who had lost an arm or leg or had an arm or leg permanently disabled, or both eyes, were not subject to be considered as retired upon the actual rank held by them when wounded, as provided in the first part of the section; and no retired officer was affected by the act who had been or might be retired on the rank actually held by him at the time of such retirement; and all officers mentioned in the first part of the section, or of twenty-five years’ service, or who had lost an arm or leg, etc., could accept appointment in the diplomatic or consular service, notwithstanding § 2 of the act of March 30, 1868, or § 1223 of the Revised Statutes, as we think the words “every such officer now borne on the retired list shall be continued thereon ” refer to all officers previously mentioned in the section, and the provision in this respect shows that up to March 3, 1875, § 2 of the act of 1868 applied to officers on the retired list as well as those in active service.
Sections 1763, 1764, and 1765 of the Revised Statutes are as follows:
“Sec. 1763. No person who holds an office, the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars, shall receive compensation for discharging the duties of any other office, unless expressly authorized by law.
“Sec. 1764. No allowance or compensation shall be made to any officer or clerk, by reason of the discharge of duties which belong to any other officer or clerk in the same or any other department; and no allowance or compensation shall be made for any extra services whatever, which any officer or p. 451clerk may be required to perform, unless expressly authorized by law.
“Sec. 1765. No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.”
Whether by the order of the Secretary of War, July 3,1878, the claimant’s name was properly restored to the retired list we are not called upon to determine in this case, because even were that so we do not think his petition can be sustained.
General Badeau received as consul general at London an annual salary of seventy-five hundred dollars, and at Havana, of six thousand dollars, as fixed by law, and was expressly inhibited from receiving any additional salary, allowance, pay, or compensation for discharging the duties of any other office unless expressly authorized by law, of which there is no pretence in this case. It has been decided that a person holding two offices or employments under the government, when the services rendered or which might be required under them, were not incompatible, is not precluded from receiving the salary or compensation of both. Converse v. United States, 21 How. 463; United States v. Brindle, 110 U. S. 688. But the Treasury Department did not apparently regard this case as falling within that exception, and we agree with that conclusion. United States v. Shoemaker, 7 Wall. 338; Stansbury v. United States, 8 Wall. 33 ; Hoyt v. United States, 10 How. 109, 141.
Under the act of 1875 retired officers situated as therein described, are so far taken out of the operation of the act of 1868 as not to be held, if they accept or hold diplomatic or consular appointment, to have resigned their places in the army; but this does not change the general policy of the law, and does not entitle them to pay as army officers during the period of time when they are absent from their country in the discharge of continuous official duties inconsistent with subjection to the p. 452rules and articles of war, and the other incidents of military service. Notwithstanding § 1223, such officers, when in the diplomatic or consular service, may still be borne on the retired list, but cannot receive double compensation.
Nor can we disturb the judgment adverse to the counter-claim. As between individuals, where money has been paid under a mistake of law, it cannot be recovered back, but it is denied that this rule is applicable to the United States, upon the ground that the government is not bound by the mistakes of its officers, whether of law or of fact. United States v. Kirkpatrick, 9 Wheat. 720; United States v. Bank of Metropolis, 15 Pet. 377; McElrath v. United States, 102 U. S. 426. But inasmuch as the claimant, if not an officer de jure, acted as an officer de facto, we are not inclined to hold that he has received money which, ex cequo et bono, he ought to return.
He was paid as a military officer from December 6, 1869, to the 21st of February, 1870, and for the time from February 21, 1870, to April 30, 1870, and for about fourteen months, beginning in September, 1881, and ending in November, 1882. After May 19, 1869, he was employed in a diplomatic or consular capacity, except during the above specified periods, and the implication from the findings is that he was paid for those periods, because he was actually rendering service, whether subject to assignment thereto or not.
The judgment of the Court of Claims is Affirmed.
Mr. Justice Miller dissented.
UNITED STATES v. CUMMING.
CUMMING v. UNITED STATES.
APPEALS FROM THE COURT OF CLAIMS.
Nos. 723, 724. Submitted January 4,1889. — Decided April 22, 1889.
Congress enacted that A B and C D “ be permitted to sue in the Court of Claims, which court shall pass upon the law and facts as to the liability
of the United States for the acts of its officer ” E F, . . . “ collector of internal revenue” etc., “and this suit may be maintained, any statute of limitation to the contrary notwithstanding.” Held, that this was a waiver of the defence based upon the statute of limitations, but not a waiver of the defence based on the general principle of law that the United States are not liable for unauthorized wrongs inflicted on the citizen by their officers while engaged in the discharge of official duties.
The case is stated in the opinion.
Mr. Assistant Attorney General Howard for the United States.
Mr. Michael Jacobs, Mr. Leonard Myers and Mr. David McAdam for Cumming and others.
Mr. Justice Harlan delivered the opinion of the court.
These are appeals from a judgment against the United States in favor of Joseph M. Cumming and Hamilton J. Miller, surviving members of the late firm of J. M. Cumming & Co., formerly manufacturers, distillers, vendors and exporters of whiskeys and alcohols, for the sum of thirty-six thousand dollars, as the damages sustained by that firm in consequence of certain acts of Joshua F. Bailey, collector of internal revenue for the fourth internal revenue district of New York, and of other officers who served under or with him. The amount for which the plaintiffs asked judgment was 81,635,753.
The suit was brought under the authority of the following act of Congress, approved February 26, 1885, 23 Stat. 639, c. 167. “An Act for the relief of Joseph M. Cumming, Hamilton J. Miller and Wiliam McRoberts.
“ Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That Joseph M. Cumming, Hamilton J. Miller and William McRoberts, late copartners in the business of commission merchants and bonded warehousemen in the city of New York, be permitted to sue in the Court of Claims; which court shall pass upon the law and facts as to the liability of the United p. 454States for the acts of its officer, Joshua F. Bailey, by reason of the seizure, detention and closing up of the commission houses and bonded warehouses of said copartners, for the breaking up and interruption of their said business, and for the seizure and detention of the property, books and papers in and connected with said business, by Joshua F. Bailey, collector of internal revenue for the fourth internal revenue district of said State or by said Bailey and other internal revenue officers. The United States shall appear to defend against said suit, and either party may appeal to the Supreme Court as in ordinary cases against the United States in said court; and said suit may be maintained, any statute of limitation to the contrary notwithstanding.
“Approved, February 26, 1885.”
It is evident that Congress intended to open the doors of the Court of Claims to the plaintiffs, so far as to permit them to sue the government, unembarrassed by any defence of the statute of limitations, and to obtain an adjudication, based upon “the law and facts,” as to the liability of the United States for the wrongs of which complaint is made. In other words, the jurisdiction of the Court of Claims was so enlarged as to embrace this particular demand and to authorize such judgment as, under all the evidence, would be consistent with law. Here, however, we are met with the suggestion, that there is a general principle, applicable, as this court said, in Gibbons v. United States, 8 Wall. 269, 275, to all governments, which “ forbids, on a policy imposed by necessity, that they should hold themselves liable for unauthorized wrongs inflicted by their officers on the citizen, though occurring while engaged in the discharge of official duties.” Did Congress intend to abrogate this principle so far as the demands of the present plaintiffs are concerned ? Did it invest the Court of Claims with jurisdiction to render a judgment against the United States upon its appearing that the revenue officers transcended the authority conferred upon them by law, or had exercised their authority in such manner as made them personally liable in damages to the plaintiffs ? There would be some ground for an affirmative answer to these questions if the statute had not required the court to pass upon both the law and the facts “ as to the p. 455liability of the United States.” If the facts disclosed a case of unauthorized wrongs done to the plaintiffs by the revenue officers of the United States, the question, by the very terms of the act, would still remain, whether the United States were liable, in law, for such damages as the plaintiffs had sustained. There would seem to be no escape from the conclusion that Congress intended that the liability of the government should be determined by the settled principles of law. The only right waived by the government was a defence based upon the statute of limitations. Erwin v. United States, 97 U. S. 392; Tillson v. United States, 100 U. S. 43; McClure v. United States, 116 U. S. 145.
It is said that the act, professedly for the relief of the plaintiffs, would be unavailing, unless it is so construed as to relieve them from the operation of the rule laid down in Gibbons v. United States. A satisfactory answer to this suggestion is that if Congress intended to do more than give the plaintiffs an opportunity, in an action for damages brought in the Court of Claims, to test the question as to the liability of the United States, upon the law and facts, for the alleged wrongs of their officers, that intention would have been expressed in language not to be misunderstood. It is as if the plaintiffs asserted before Congress the liability, in law, of the government for the damages they sustained, and Congress permitted them to invoke the jurisdiction of the Court of Claims in order that there might be a judicial determination of the question by that tribunal, with the right of appeal “ as in ordinary cases against the United States in said court.”
According to this construction of the act, the plaintiffs were not entitled to judgment against the United States in any sum ; for, if Collector Bailey and other revenue officers did nothing more than the law authorized them to do, neither they nor the government would be liable in damages; while, if they acted illegally, they would be personally liable in damages; not the government.
The judgment is reversed, with directions to render judgment in favor of the United States.
Mr. Justice Miller and Me. Justice Field dissented.