PARMENAS T. TURNLEY v. THE UNITED STATES.
[Congressional 300.
Decided April 1, 1889.]
On the Proofs.
A captain in the Army tenders his resignation “immediate and unconditional,” and shortly after applies for leave of absence until his accounts can be closed. Leave is granted until a day specified, and it is ordered that his resignation take effect then. The resignation is signed as “ Captain and Assistant Quartermaster.” He now contends that it only related to active service and not to a position he previously held on the retired list.
*318I. A resignation in terms “ immediate and unconditional” means an entire severance of an officer^ connection with the Army.
II. The title which an officer appends to his name in signing his resignation does not operate as a limitation upon the clear and unambiguous terms of the resignation itself.
The Reporters’ statement of fclie case:
The following are the facts of the case as found by the court:
I. The claimant entered the military service of the United States as a cadet July 1,181-2, and continued in said service on the active list of the Army until he was retired as hereinafter stated. April 29, 1862, he applied for six months’ leave of absence on account of ill health. June 20, 1862, having received no reply to this application, he tendered his resignation from United States Army on account of ill health. Subsequently leave was granted as follows:
“War Department,
“Adjutant- General’s Oeeice,
“Washington, September 25th, 1862.
“ 6. Leave of absence is hereby granted to Captain P. T. Turn-ley, assistant quartermaster, U. S. Army,' with permission to go beyond the seas, pending the settlement of his accounts and final action upon his resignation.
“By order of the Secretary of War.
“E. D. TownSend, Assist<mt Adjutant-General.”
It does not appear that any action was taken upon his said resignation; but on July 22, 1863, he was ordered before a retiring board and thereafter was placed on the retired list, as appears by the following order:
“Wab Department, “Adjutant-General’s Oepioe,
“ Washington, September 11th, 1863.
“Captain P. T. Turnley, assistant quartermaster, U. S. Army, having been found by a board of examination to be physically incompetent to discharge the duties of his office, and the President having approved the finding thereof, he will be placed on the retired list of officers of the class of which the disability results from iong and faithful service or from some injury incident thereto.
“By order of the Secretary of War.
“E. D. Townsend,
“ Assistant Adjutant-General.”
*319II. February 6,1865, the claimant made the following report to the Department:
\
“ Chicago, Illinois, Felj. 6th, 1865.
“ General M. 0. Meigs,
“ Quartermaster-General U. 8., Washington, D. 0.:
“General: Inclosed herewith is a copy of Special Orders No. 417, dated War Department, Sept. 17th, 1863, placing me on the retired list of officers ‘ of the class of which the disability results from long and faithful service or from some injury incidental thereto.’
“My complaint was what doctors called ‘gastritis,’ causing extreme debility, and was superinduced by fourteen years of constant service on the extreme frontiers, where I had intense care and mental exercise, being at the same time deprived of the proper variety of physical exercise and nourishing food.
“By two years’ proper application of these remedies, I have the honor to report my health and strength entirely restored, and that I am now fully competent and ready to resume my active duties if the public service requires it.
“Tour reply is awaited at this place.
“I am, general, respectfully,
“P. T. Turnley,
“A. Q. M., U. S. A.”
In reply to this report the claimant received the following order:
“War Department, “Adjutant-General’s Oeeioe,
“ Washington, Marched, 1865.
“Oaptain P. T. Turnley, assistant quartermaster, U. S. Army, will proceed immediately to Denver City, Colorado Territory, and relieve Captain C. L. Gorton, assistant quartermaster of volunteers, in his duties at that post.
“By order of the Secretary of War.
“E. D. Townsend,
“Assistant Adjutant-General.”
In compliance with this order the claimant proceeded to Denver, whence he reported as follows:
“Denver City, May 25, 1865.
“To Maj. Gen. M. 0. Meigs,
tlQr. Mr. General, TJ. 8., Washington City, D. 0.:
“I am here per Special Order No. 135, dated War Department, March 22, 1865, and letter from your office dated March 24th. I find Capt. Westbrook, A. Q. M., from Utah, here by order of Gen’l Connor, to relieve Capt. Gorton, A. Q. M., and *320Gen’l Connor designs Capt. Turnley, A. Q. M., for Julesburg or Indian campaign. This is not according to my orders, nor what I expected, nor what I desired. Your further instructions are asked for in answer by telegraph.
“P. T. Turnley,
“A. Q.M.
“ I stated in a communication of 22d that I was here waiting the return of' Capt. Gorton, A. Q. M., to receive his property, etc. He has not yet arrived, tlio’ Capt. Westbrook, A. Q. M., from Utah, is here and is going on to relieve Capt. Gorton. I shall await your further instructions, or those of the chief qr. mrs. of the department and division.
“ It was sixteen years’ service, nearly the whole of it field duty on the plains, that destroyed my health, and not one week’s leave of absence was extended to me in that whole time; finally, when in 1862 I sought medical advice in Europe, and was absent one year for that purpose, I was retired from active service; then having recovered my health and reported for duty, tho’ retired and overslaughed and deprived of promotion, yet I willingly proceeded to duty as ordered, to Denver City Depot. On my arrival here, however, to find myself booked for a slavish, hot, and disagreeable Indian campaign, with low rank and nothing higher to be hoped for, is not to my mind just or to be expected for a retired officer. I will await, therefore, with all confidence in your never-failing judgment in this as in other cases of official duty.
UI am, general, very respectfully, your obt. servt.,
“P. T. Turnley,
“A. Q. M., U. S. A
III. The following correspondence relative to the claimant’s rank and duties took place at their respective dates:
“ Chief Quartermaster’s Office,
“District of the Plains,
“ Denver City, G. T., July 24th, 1865.
“To His Excellency Andrew Johnson,
“ President of the United States :
“ Sir : I have the honor respectfully to represent that I left my home in Dandridge, Jefferson County, East Tennessee, in June, 1842, and traveled on foot to the National Military Academy, at West Point, New York; that I graduated there and received my diploma in 1846; joined my regiment immediately and marched with it throughout the Mexican war. At the close of that war I went on duty on the Rio Grande; thence (in 1850) up that river to New Mexico and Arizona; thence (in 1854) on *321to the Upper Missouri iu the Sioux Indian country; thence (in 1857) to Oregon; thence (in ’57) to Utah, where 1 remained till 1861, the beginning of our national troubles. I was thus in Utah nearly three years, during which time I did not see my own wife and children, who remained all the while at their home in Chicago, and to visit them and recover my prostrate condition in health and strength, I received my first leave of absence since first entering the Academy, thus making' nineteen years’ constant service. Tho’ extremely feeble, I crossed the mountains in midwinter and reached my home in Chicago and accompanied Mr. Lincoln to Washington City, where, in April, my leave of absence was revolted, and I ordered to duty — first with Gen’l -Butler, then with Frémont in Missouri, then with Grant, on the Mississippi, Ohio, and Cumberland Rivers, until September, 1862, when I was fast sinking with the excessive labors I was performing.
“I again received a leave (see paper No. 1). Availing myself of this respite, I sought quiet and ease and proper food (my wife alone with me), but in less than ten months a board retired me from active service (see papers 2 and 3). Then in February last, I was again ordered to duty (see papers 4, 5, and 6), which I am now performing; and in connection with said duties, etc., I most respectfully represent that the ten months’ leave was not a fifth part of what almost every Army officer has had within nineteen years; that my debility and prostration was not constitutional, but was solely the result of my constant mental efforts and physical labors on extreme distant frontiers with the rudest diet; that my recovery and return to duty is evidence of this; that by the action of the retiring board I was placed helow all those in my corps whom I ranked for years; that I am now tinder and junior to officers in my corps who graduated ten years after I did, and whose services are counted by months, iustead of the years that I have served. I therefore most-respectfully represent that I desire to be placed on the roster of my corps where I would have been had no retirement been made; or, if this can not be done, then 1 have the honor to request that your excellency will consider this communication a tender of my resignation, and that your excellency will accept the same unconditionally and immediately. “ 1 have the honor to be, respectfully,
“Parmenus Taylor Turnley,
“ Captain, Assistant Q’rmaster,
TJ. 8. Army, 19 years’ service.”
“Executive Oeeice,
“ August 16, 1865.
“ Respectfully referred to the honorable Secretary of War, with the request that the application of Oapt. Turnley to be *322placed upon tbe roster of his corps be granted, if not inconsistent with the interests of the service.
“Andrew Johnson,
President Ú. 8.”
“ Respectfully referred to the Quartermaster-General U. S. Army for remark.
“S. F. Chalein,
“ Asst. Adjt. Gen’l.”
“ Quartermaster-General’s Oeeice,
“ Washington, I). G., August 24,1865.
“Brig. Gen’l L. Thomas,
“Adjutant-General U. 8. A.:
“ General : I have the honor bo return herewith communication of Oapt. P. T. Turnley of July 24th, 1865, relative to his position on the roster of the regular Army, referred by the Adjt. General to this office for remark on the 17th instant.
“ Captain Turnley served in the early part of the war until he reported that his health had failed Am. He tendered his resignation and was granted leave of absence.
“ In the ordinary routine he appeared before a retiring board and was retired, remaining out of active service from July, 1862, to March 22, 1865, that is, during the greater part of the active movements and operations of the great war just successfully concluded.
“ Officers of the Q’rm’r’s Dept, who have taken active part in the war have been promoted to higher rank in the line of the Army, and the'vacancies made by their promotion have been filled by regular promotion, according to the rules of the service.
“ Having been restored to health, Captain Turnley asked to be placed on duty instead of remaining on the retired list and rendering no service to the Government.
“ In this he showed a proper sense of his duty as a soldier and a citizen, and he has been placed on duty in an important position at Denver City, in which I have been obliged to request the interference of the War Dept, to retain him, as the commanding general of the district or dept, in which he served was by him reported to desire to take him to another post, where, in the opinion of this Dep’t. he would be less useful.
“ His promotion should bo governed by the rules of the service, and doubtless the Adjutant-General has followed these rules in placing his name on the roster.
“I do not think it would be just to reduce any of those who, having had health and opportunity to continue ifi active service through the war, have fairly won the promotion which they have received.
“ Whether Captain Turnley will be entitled by seniority to *323promotion on occurrence of the next vacancy or not depends upon the laws and regulations regulating promotions in the regular Army.
“ His services are now important, and he should not be allowed to resign.
“ Very respectfully, your ob’t servant,
“M. C. Meigs,
“ Qr. Mr. General, Brevet M. G.”
“ Adjutant-General’s Oeeioe,
“ Washington, Oct. 3,1865.
“ Capt. P. T. Turnley,
: “ U. 8. Army, Denver City, O. T.:
- “ Sir : In reply to your communication of the 24th July, ’65, requesting that your name may be placed on the roster of your corps as if you had not been retired, I am directed by the Secretary of War to inform you that your request has not been favorably considered. Your resignation, tendered in the same communication, can not be accepted at present.
“ I am, sir, very respectfully, your obedient servant,
“ S. F. Ohalein,
“Asst. Adft GenH.”
IV. Before the claimant received the reply to his letter of July 24,1865, addressed to the President, as set out in finding III, he tendered his resignation in the Army. The resignation, recommendations, and acceptance are as follows:
“Chiee Quartermaster’s Oeeioe,
“District oe the Plains, • “Denver, O. T., Sept. 26th, 1865.
“General L. Thomas,
“ Adf t Gen’l U. 8. Army, Washington Gity, D. G.:
“ I have the honor to tender hereby, and by these presents, my resignation from the Army of the United States, to take effect ‘ immediate and unconditional.’
“ Respectfully,
“P. T. Turnley,
“ Captain and Asst. Qr. Master,
“ U. 8. Army, Graduate of 1846.”
“ Denver, O. T., OcPr 1st, 1865. “Bvt. Major-General E. Upton,
“ Gomd’g District of Colorado:
“ General : Having tendered my resignation from the U. S. Army unconditional and immediate,’ I have the honor to apply for a leave of absence until my accounts can be closed and settled by the U. S. Treasury Department.
“P. T. Turnley,
“ A. Q. M., U. 8. A.”
*324“ Hd. Qrs., Dis. Col., Oct. 1st, 1865.
“ Captain Turnley informs me that he intended tó resign when in Utah in 1860, but the war soon after breaking out, he was induced to delay till such time as he could retire without prejudice to the service. For important private reasons which Gajjt. Turnley has made known to me, I respectfully recommend that his resignation be accepted, and thatleave of absence be granted him till his accounts are settled.
“ E. Upton,
“ Bt. Maj. Gen., Gom’d’g.”
“ Headquarters U. S. ¡Forces,
“ Kansas and Territories,
“ Denver, Oct. 2d.
“ For reasons stated to me in person by Oapt. Turnley, I approve his resignation, to take effect on settlement of his accounts, and recommend that a leave of absence be given him to enable him to make such settlement.
“ G. M. Dodgke, M. G.
“Headquarters Dept, oe the Mo.,
St. Louis, Mo., Nov. kbh, 1865.
. “Respectfully forwarded to the Adj’t-General of the Army.
“ Jno. Pope,
“ Major-Gen’l, Comd’g.
“ Respectfully referred to the Quartermaster-General, in connection with other papers In this case inclosed.
“S. F. Ghalein,
“ Asst. Adjt. General.”
“Chiee Quartermaster’s Oeeice,
“District oe the Plains,
“ Denver, G. T., October 24dh, 1865.
“Major-General John Pope,
“ Comd’g Deft of the Missouri, Saint Louis, Mo.:
“General: I have the honor to forward to you herewith my resignation from the Army of the United States, to take effect ‘ immediate and unconditional ’ with the favorable endorsements of Br’v’t Major-General Upton, comd’g this district, and of Major-Gen’l Dodge, comd’g forces in Kansas and Territories, and I have to ask your favorable endorsement, and then the same be forwarded to the Adj’t Gen’l of the U. S. Army.
“ I have, also, to apply for a leave of absence until my accounts may be settled and my resignation accepted; and I have my family with me, and the winter being near at hand, I beg you will let me know your action as soon as possible, by *325telegraph, as children and women can not well travel if delayed late in winter.
“ I am, general, very truly, your obd’t serv’t,
“P. T. Turnley,
“ A. Q. M., U. 8. A.
“ Eespectfully returned to the Adjutant-General U. S. Army.
« Captain Turnley has written to me in regard to the condition of his father’s estate in Bast Tennessee, where his father was lately threatened with death, an aged man, and I presume that he is now so desirous of leaving the service that it would be better to let him go. His knowledge of affairs on the plains was useful to theDepartme.ut and his integrity inspired its confidence.
“ I recommend that his resignation be accepted to date from the 31st of December next, and that he have a leave of absence until that time to enable him to settle his accounts.
“M. C. Meigs,
“Bvt. Major-General, Quartermaster-General U. 8. A.
«Nov. 17, ’65.”
[Special Orders No. 609.]
“ WAR DEPARTMENT,
“Adjutant-General’s Office,
“ Washington, November 21st, 1865.
«1. Leave of absence is hereby granted the following officers :
“ Captain P. T. Turnley, U. S. Army, until December 31st, 1865.
“ 2. The resignation of Captain P. T. Turnley, U. S. Army, has been accepted by the President, to take effect. December 31st, 1865, on condition that he receive no final payments until he shall have satisfied the Pay Department that "he is not indebted to the United States.
“By order of the Secretary of War.
“E. D. Townsend,
“Assistant Adjutant-General.”
Y. At the time the claimant tendered his resignation as set forth in finding iv, he was suffering from a prostrating dysentery and carbuncles, whereby he had become much debilitated in body and mentally depressed. He was extremely nervous and irritable, and anxious to be relieved from a service from which he was consciously unfit. For this relief he had made several urgent requests to his official superiors in the Department of Missouri, but had received no reply.
*326VI. Under said acceptance of claimant’s resignation, as captain and assistant quartermaster, U. S. Army, claimant lias been held by the military authorities and the accounting officers to have had his relations to the Army, both active and retired, wholly severed, and claimant has been denied all rights, pay, and salary incident to his rank as “ a captain U. S. Army, retired.”
To the claimant’s applications for restoration, made in 1878 and 1880, the following answers were returned:
“War Department,
“ Washington City, November 5th, 1878.
“ Sir : Referring to your letter dated the 4th ultimo, enclosing the petition of Parmenus T. Turnley, late captain and assistant quartermaster, United States Army, retired, for his restoration to the retired list, I have the honor to inform you that, after careful examination of the case, it is not believed that the Executive can afford the relief asked without a special act of Congress. I return herewith the papers enclosed in your letter.
“ Very respectfully, your obedient servant,
“Geo. W. McCrary,
“ Secretary of War.
“W. M. Jones, Esq.,
“Attorney at Law, JDes Moines, Iowa?
“War Department,
“ Washington City, May 11, 1880.
“ Sir : I am in receipt, by your reference under date of the 30th ultimo, of letter of the 10th ultimo from the honorable Thomas Drummond, judge of the Circuit Court of the United States for the Northern District of Illinois, urging the restoration to the Army of Colonel P. T. Turnley, late captain United States Army, retired, and, in reply, have the honor to state that the Executive is powerless to comply with your wishes in this matter.
“ The power to restore Colonel Turnley to the Army is possessed by Congress only,
“ Very respectfully, your obedient servant,
“Alex. Ramsey,
“ Secretary of War.
“ Hon. David Davis,
“ U. 8. Senate.”
VII. “ It is hereby stipulated and agreed that in the above cause the following facts may be admitted as evidence for plaintiff, to wit: That the proper official designation of a cap*327tain in the Quartermaster Department, U. S. Army, in all communications between his military superiors and himself, is ‘ captain and assistant quartermaster, U. S. Army,’ aud that the same of a captain on the retired list of the Army is ‘ captain, U. S. Army, retired.’ It is further admitted that the pay per annum of a mounted captain, U. S. Army, retired, after twenty years’ service, is $2,100.
“ H. J. Mat,
“ Assista/nt Attorney.
“W. J. Moberly,
“ Attorney for Plaintiff.
Mr. W. J. Moberly for the claimant.
Mr. Héber J. May (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
Scofield, J.,
delivered the opinion of the court:
This case was originally referred to the court by the Committee on Military Affairs of the House of Representatives, under the provisions of the Act of March 3, 3883 (22 Stat. L., 485), known as the Bowman Act. But the claimant subsequently filed a petition under the general jurisdiction of the court to recover pay as a retired officer of the Army, at the rate of $2,100 a year, from December 31, 3865, to the time of filing his petition, or so much thereof as the court, under the statute of limitations, might be authorized to consider.
The claimant was an officer of the regular Army of the United States, on the active list, from July 1,1842, to September 17, 1863, at which time, having the rank of captain and assistant quartermaster, he was placed upon the retired list.
February 6, 1865, he reported to the Quartermaster-General that “his health and strength were entirely restored, and that he was ready to resume his active duties if the public service required it.” On the 22d of March following he was ordered to proceed to Denver, Colo., and relieve Captain Gorton, and on May 25, I860, he reported his arrival at that place.
September 26,1865, he tendered_his resignation in the Army, which, November 20, 1865, was accepted by the President, to take effect December 31, 1865. Thereupon his name was dropped from the Army Register, and he received no pay after that date.
*328He now contends that his resignation related ouly to active service and not to his position on the retired list, and that its acceptance left him still a “ captain in the U. S. Army, retired,” entitled to retired pay. As this contention is based upon the form of resignation and acceptance, they are here inserted entire:
“Chief Quartermaster’s Office,
“ District of the Plains,
“ Denver, C. T., September 26th, 1865.
“ General L. Thojias,
“Adjt. Gen. U. S. Army, Washington Güy, D. G.:
“I have the honor to tender, hereby and by these presents, my resignation from the Army of the United States, to take effect immediate and unoonditionaV “ Respectfully,
“P. T. Turnley,
“ Captain and Asst. Qr. Master,
“U. S. Army, Graduate of 1846.”
“Adjutant-General’s Office,
“ Washington, Nov. 20,1865.
“ Captain P. T. Turnley,
“ TJ. 8. Army, Denver Oity, Colorado Territory :
“ Sir : Your resignation has been accepted by the President of the United States, to take effect the thirty-first day of December, 1865, on condition that you receive no final payments until you shall have satisfied the Pay Department that you are not indebted to the United States.
“ I am, sir, very respectfully, your obedient servant,
“ S. F. Chalfin,
“Asst. Adjt. Geni?
It is admitted that the proper designationof this officer while on the active list or while performing active duties was “ captain and assistant quartermaster U. S. Army,” and when on the retired list and not on active duty was “ captain U. S. Army, retired.” It will be seen that the claimant signs his resignation as “captain and assistant quartermaster, U. S. Army, graduate of 1846,” and the notice of the President’s acceptance is addressed to him as “captain U. S. Army.”
We do not think that the title which the claimant appended to his name in signing his resignation operated as a limitation upon the clear and unambiguous words of the resignation itself. “Resignation from the Army of the United States, im*329mediate and unconditional,” could mean nothing less than an entire severance of his Army connection. The claimant himself seems to have so understood it at the time, for in a few days after he wrote General Upton, his superior officer, that he had tendered his “ resignation fromU. S. Army,” and requested leave of absence. October 24, 1865, in a communication to General Pope, inclosing his resignation, he calls it “my resignation from the Army of the United States,” and asks for leave of absence. His request for leave and his resignation passed through the same channels on their way to Washington, and the leave was finally granted and the resignation accepted on the same day. In sending forward this resignation and request for leave General Upton makes this indorsement:
“ Captain Tarnley informs me that he intended so resign when in Utah in 1860, but the war soon after breaking out, he was induced to delay till such time as he could retire without prejudice to the service. For important private reasons, which Capt. Turnley has made known to me, I respectfully recommend that his resignation be accepted and that leave of absence be granted him till his accounts are settled.”
General Dodge, through whose hands the resignation and request for leave passed, indorsed on the recommendation “for reasons stated to me in person by Captain Turnley, I approve his resignation.” General Meigs forwarded his resignation and request for leave with 'the following recommendation :
“ Captain Turnley has written to me in regard to the condition of his father’s estate in East Tennessee, where his father was lately threatened with death, an aged man, and I presume that he is now so desirous of leaving the service that it would be better to let him go. His knowledge of affairs on the plains was useful to the Department, and his integrity inspired its confidence.
“ I recommend that his resignation be accepted to date from the 31st of December next, and that he have a leave of absence until that time to enable him to settle his ac-eounts.”
In all this correspondence there is no intimation that the claimant understood that he was simply resigning from active service. Leave of absence was sufficient for that purpose. It is hardly possible that an officer of his education and experience in the Army could have understood that the language of his resignation, so many times repeated, meant *330anything less than a total severance from the Army. Certainly, he must have so understood the President’s acceptance, for pay ceased at that date; it does not appear, however, that he then expressed surprise or made any protest. The first notice of discontent appearing in the record is his application for restoration, made about thirteen years afterward.
It is further said that the claimant, at the date of his resignation, was not in his right mind, and that the paper is therefore void. It is true that he was much out of health, debilitated, and depressed in mind and body, but it appears that he was attending to his official duties. He had. his family with him, and was surrounded by military friends both above and below him in rank.
The idea of severing his connection with the Army was not new. He had it in contemplation just before the rebellion. He actually did resign in 1862, but his resignation was not then accepted. He was granted leave of absence instead, and subsequently placed on the retired list. In his communication to the President, July 24, 1865, a little over two months before the final resignation, he complained of his comparatively low rank in his corps, and requested promotion to the rank he would have held if he had not been retired, and adds: “ If this can not be done, then I have the honor to request that your Excellency will consider this communication a tender of my resignation, and that your Excellency will accept the same unconditionally and immediately.” At that time he was in good health, but wished to resign unless he could be promoted. He was then only forty-three years of age, and, although on the retired list, he was liable, whenever his health would permit, to be ordered to active service. He might well have considered that at his time of life, if entirely severed from the Army, he might find occupation more remunerative than Army pay, in which he would be reasonably sure of good health.
While in the service the claimant appears to have been an excellent officer; but in passing upon his legal status the court can not consider his personal merits.
The petition will be dismissed.