Runkle v. United States 22 Ct. Cl. 487

BENJAMIN P. RUNKLE v. THE UNITED STATES.

(19 C. Cls. R., 396; 122 U. S. R., 543.)

Both parties Appeal.

The claimant, retired as major in the U. S. Army, December 15,1870, was then on duty in the Bureau of Ereedmen, etc., and continued thereafter on that duty. While on that duty he was, in the autumn of 1872, arrested and placed on trial before a general court-martial, appointed by direction of the President of the United States. The charges and specifications embraced acts done while on duty, before, as well as after, he was retired. He was found guilty on the charges, and sentenced to be cashiered, to pay a fine, and to be imprisoned in a penitentiary. The sentence was confirmed in an order of the War Department stating that “the findings and sentence are approved,” and that “the President (Grant) is pleased to remit all of the sentence, except so much thereof as directs cashiering.” More than four years and six months thereafter President Hayes, having examined the record of the case, and being of opinion that the conviction was not sustained by the evidence, issued an *488order disapproving the conviction and sentence, and revoking the order of the War Department announcing the cashiering of the claimant. The claimant was thereupon replaced on the Army Register, and by order of President Hayes was'paid $9,195.27 for the time he was out of the Army, and has ever since reoeived pay as a retired major, amounting, up to January 1,1884, to $14,390.35. He sues in this action for longevity pay under the decision in Tyler’s Case (16 C. Cls. R., 223; 105 U. S. R., 244), and the Government files a counter-claim for all the money p aid him since the date of President Hayes’s order aforesaid. Ho contends that he was never out of the Army, because the court-martial that tried him, having been convened by direction of the President, was not lawfully appointed, and therefore had no jurisdiction to try him; and because, if it had jurisdiction, its sentence was never confirmed by President Grant, but only by the Secretary of War, and was disapproved by President Hayes. He contends, further, that he, being a retired officer, was unlawfully kept on duty, and was not, therefore, amenable to trial by court-martial for acts done while on such duty."

The court below decides:

(1) An order issued by the Secretary of War announcing the approval of a sentence, and stating that the President has been pleased to remit a part, is the act of the President, and legally confirms the sentence.

(2) An order of a subsequent President, disapproving the sentence of a court-martial and revoking the order of his predecessor confirming it, is null and void.

(3) An order of a President that a person legally dismissed from the Army and illegally restored to it be paid for the time he was out of it confers no right, and the money may be recovered back from the person to whom it was paid.

(4) An officer can not maintain an action for his salary unless he has a legal title to the office; mere occupancy is not sufficient. The claimam, having no legal title to the office, can not recover longevity pay.

The judgment of the court below is reversed, on the ground that it does not positively and distinctly appear that the proceeding's of the court-martial have ever, in fact, been approved or confirmed in whole or in part by the President of the United States, as the Articles of War require, before the sentence could be carried into execution, and that, consequently, Major Bunkle has never been legally cashiered or dismissed from the Army.