[240 U.S. 90, 91] Assistant Attorney General Thompson for appellant.
[240 U.S. 90, 92] Messrs. George A. King, William B. King, and William E. Harvey for appellee.
Mr. Chief Justice White delivered the opinion of the court:
The United States appeals from a judgment awarding the appellee $325, found to be due him under Revised Statutes, 1265, Comp. Stat. 1913, 2104, for half pay as a captain of cavalry of fifteen years' service for a period of three months from August 1 to October 31, 1907, during which time it was found he was absent on leave. The court stated the facts as follows:
It is apparent from the authorities cited in the per curiam opinion of the court below (Glavey v. United States, 182 U.S. 595 , 45 L. ed. 1247, 21 Sup. Ct. Rep. 891; Whiting v. United States, 35 Ct. Cl. 291, 301; Dyer v. United States, 20 Ct. Cl. 166) that the allowed recovery was based upon the conclusion that the half pay during the leave of absence was expressly sanctioned by law (Rev. Stat. 1265), and hence any condition conflicting with such statutory right was void, and that the officer being entitled to rely upon the statute, no estoppel against him could be implied because of his having acted upon the leave, albeit it contained a condition in conflict with the rights conferred by the statute. To test the merits of these conclusions will dispose of the entire case, since all the contentions of the government are embraced in three propositions: 1, the asserted existence of authority to grant the leave, conditioned on its being without pay, notwithstanding the statute; 2, even if such power did not exist, the binding effect of the condition upon the officer who accepted the leave which was subject to it; and 3, in any event, the impossibility of separating the grant of leave from the condition upon which the leave was based, thus, under the hypothesis of illegality, rendering the grant void, and causing the absence [240 U.S. 90, 94] from duty which was enjoyed under the apparent sanction of the grant to be an absence without leave, for which, under the statute, no right to pay existed. It is manifest that these contentions assume, as did the conclusions of the court below, that the telegram stated in the findings operated to grant a new leave for the three months therein specified, subject to the condition that it should be without pay, and in separately testing the propositions we shall treat the telegraphic order as having that significance.
1. As in view of the plain text of Revised Statutes, 1265, there is no room for disputing that the right to half pay during the period of the leave in question was conferred by the statute, there is and can be no dispute that, tested by the statute alone, the court below did not err in allowing the claim for such half pay. But the contention is that error was committed because the conferring of the right to pay by the statute was not exclusive, and therefore did not deprive of the authority as an incident to the power to grant the leave to affix the condition that the leave should be without pay notwithstanding the statute. It is unnecessary, however, to stop to point out the unsoundness of this proposition, since the error upon which it rests is authoritatively demonstrated by previous decisions which substantially leave the proposition not open for discussion. United States v. Williamson, 23 Wall. 411, 416, 23 L. ed. 89, 90; United States v. Wilson, 144 U.S. 24 , 36 L. ed. 332, 12 Sup. Ct. Rep. 539; United States v. Shields, 153 U.S. 88, 91 , 38 S. L. ed. 645, 646, 14 Sup. Ct. Rep. 735; Glavey v. United States, 182 U.S. 595 , 45 L. ed. 1247, 21 Sup. Ct. Rep. 891. Nor, in contemplation of the cases which we have just cited, and additionally, in view of the provision of Revised Statutes , 1229, Comp. Stat. 1913, 2001, that 'no officer in the military or naval service shall 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,' is there any necessity to point out the want of application of the authorities dealing with the power to dismiss civil [240 U.S. 90, 95] officers which are cited as a basis for the proposition that a like power applies to Army officers, and therefore, as there was authority to dismiss, the lesser right of granting the leave without pay necessarily obtained. So, also, it is unnecessary to enter into any detailed analysis of the decision in Hartigan v. United States, 196 U.S. 169 , 49 L. ed. 434, 25 Sup. Ct. Rep. 204, since that case concerned the power to remove a cadet at the Military Academy, and the recognition of the right to exercise that authority was in express terms based upon the view that although in a sense a part of the Army, cadets at the Military Academy were not officers within the intendment of Revised Statutes, 1229, and indeed the opinion in the Hartigan Case in substance refutes the extreme contention as to power which is now sought to be sustained.
2. The contention as to the estoppel resulting from the failure to protest against the condition affixed to the leave, and the binding force of such condition, even if illegal, resulting from an acceptance of the leave containing it, is by necessary implication foreclosed by all the cases previously cited, and in fact was in express terms considered and held to be without merit in Glavey v. United States, 182 U.S. 595 , 45 L. ed. 1247, 21 Sup. Ct. Rep. 891. Because that case concerned an illegal condition attached to the performance of the duties of an office, and this involves an illegal condition attached to a grant of leave, affords no ground for distinction between that case and this. The basis of the ruling in the Glavey Case was the right of the official to rely upon the provisions of the statute, and the resulting want of power to apply a principle of estoppel. And as here there was express statutory authority for the half pay during the leave, the reason in the Glavey Case is controlling, and the distinction relied upon involves no difference justifying taking this case out of the principle settled in the Glavey case. As the statute conferred the right to the half pay during the leave, it necessarily follows that the exclusion of executive authority over that subject which resulted extended to [240 U.S. 90, 96] and was coterminous with the power which the statute exerted.
3. The contention that even if the condition which was attached to the leave be treated as illegal, and the acceptance of the leave containing it be decided not to have operated an estoppel, nevertheless, under such circumstances, the leave must be treated as void, and the absence based on it be held to have been one without leave, for which no pay could be allowed under the statute, is self-contradictory, and besides, in its essence, must rest upon the assumption that there was power to affix the condition, the terms of the statute to the contrary notwithstanding. The contention, therefore, is in substance foreclosed by Glavey v. United States, supra, and the decided cases to which we have previously referred. How completely this is the case will be demonstrated by observing that the decision in the Glavey Case was expressly based on the ground that public policy forbade giving any effect whatever to an attempt to deprive by unauthorized agreement made with an official, express or implied, under the guise of a condition or otherwise, of the right to the pay given by the statute. And, of course, the contention now made that the absence with leave, which carried pay under the statute, was converted into an absence without leave, carrying no pay, in consequence of an unauthorized attempt to subject the granted leave to an illegal provision that it should be without pay, is absolutely in conflict with the previous cases and the rule of public policy upon which they were based. In fact, the contention but in a changed form asserts the application of estoppel, which, as we have seen, was expressly adversely disposed of in the previous cases.
Mr. Justice McReynolds took no part in the consideration and decision of this case.