Text of Runkle Supreme Court Decision

U.S. Supreme Court
RUNKLE v. U S, 122 U.S. 543 (1887)
122 U.S. 543
May 27, 1887
[122 U.S. 543, 544]   This record shows that on the fourteenth of September,
1882, Benjamin P. Runkle filed in the office of the second auditor of the
treasury department a claim based on the decision of this court in U. S. v.
Tyler, 105 U.S. 244 , for longevity pay as an officer in the army of the United
States, 'retired from active service;' and that on the twenty-seventh of June,
1883, the secretary of the treasury referred it to the court of claims, under
section 2 of the act of March 3, 1883, (chapter 116, 22 St. 485,) for an opinion
upon the following questions: '(1) Was the court- martial that tried Benjamin P.
Runkle duly and regularly organized, and had it jurisdiction of the person of
said Runkle, and of the charges upon which he was tried? (2) Were the
proceedings and findings of said court- martial regular, and the sentence duly
approved in part by the president of the United States, as required by law? (3)
Was Benjamin P. Runkle legally cashiered and dismissed from the army of the
United States in pursuance of said court-martial and subsequent proceedings?
[122 U.S. 543, 545]   (4) Was the president of the United States authorized and
empowered by executive order to restore said Runkle to the army, as it is claimed
he was restored by the order of August 4, 1877? (5) Is Benjamin P. Runkle now a
retired army officer, with the rank of major, and, as such officer, entitled to
longevity pay under what is known as the Tyler decision?' Runkle thereupon filed
his petition in the court of claims, in accordance with the rules of practice in
that court applicable to such cases, and the United States put in a
counter-claim for '$23,585.62, moneys paid to the said claimant by the paymaster
general and his subordinates without authority of law; being the pay and
allowances of a major in the army upon the retired list from the fourth day of
August, 1877, to January 1, 1884, during which period the said claimant was not
a major in the army, nor in any way authorized to draw pay and allowances as

The facts as found by the court of claims are as follows:
(1) April 22, 1861, the claimant was mustered in as a captain of Thirteenth Ohio
volunteer infantry, and served as such till November 8, 1861, when he was
mustered in as major. August 18, 1862, he was honorably mustered out. August 19,
1862, he was mustered in as colonel of Forty- fifth Ohio volunteer infantry, and
honorably mustered out July 21, 1864. August 29, 1864, he accepted appointment
as lieutenant colonel of Veteran Reserve Corps, and was honorably mustered out
October 5, 1866. October 6, 1866, he accepted appointment as major of
Forty-fifth United States infantry, became unassigned, March 15, 1869, and was
placed on the retired list as major United States army, December 15, 1870.
(2) At the time he was so placed on the retired list he was on duty as a
disbursing officer of the bureau of refugees, freedmen, and abandoned lands for
the state of Kentucky, and had been on that duty from April 11, 1867; and con-
[122 U.S. 543, 546]   tinued on it, without any new assignment to it, until he
was arrested for trial before a court-martial, as hereinafter shown.
(3) June 25, 1872, the following special order, No. 146, was issued by the war
department: '(1) By direction of the president, a general court- martial is
hereby appointed to meet at Louisville, Kentucky, on the fifth day of July,
1872, or as soon thereafter as practicable, for the trial of Second Lieutenant
John L. Graham, Thirteenth infantry, and such other prisoners as may be brought
before it.' Before the court-martial convened and organized under this order,
the said Runkle was arraigned and tried on the following charges: 'Charge 1.
Violation of the act of congress approved March 2, 1863, c. 67, 1. Charge 2.
Conduct unbecoming an officer and a gentleman.' The specifications presented
under these charges were all based on acts alleged to have been done by the
claimant while on duty as a disbursing officer of the bureau of refugees,
freedmen, and abandoned lands. There were 13 specifications under the first
charge, and 14 under the second. All the specifications averred acts done by him
in the year 1871, except the first and fifth under charge 1, and the first,
fifth, and fourteenth, under charge 2, all of which averred acts done in 1870,
before he was placed on the retired list. Of the first and fifth specifications
under charge 1, and of the fourteenth under charge 2, he was found guilty. He
was also found guilty of 10 other specifications under charge 1, and of 5 other
specifications under charge 2, all of which averred acts done by him in 1871. He
was also found guilty of both charges; and was sentenced by the court to be
cashiered, to pay the United States a fine of $7,500, and to be confined in such
penitentiary as the president of the United States might direct for the period
of four years, and, in the event of the nonpayment of the fine at the expiration
of four years, that he should be kept in confinement in the penitentiary until
the fine be paid, the total term of imprisonment, however, not to exceed eight
years. [122 U.S. 543, 547]   (4) The proceedings, findings, and sentence of said
court-martial were transmitted t the secretary of war, who wrote upon the record
the following order:
  'The proceedings in the foregoing case of Major Benjamin P. Runkle, retired,
  United States Army, are approved, with the exception of the action of the
  court in rejecting as evidence a certain letter written by a witness for the
  prosecution, and offered to impeach his credibility; also in unduly
  restricting the cross-examination of the same witness in relation to the
  motives influencing his testimony. Inasmuch, however, as in the review of the
  case it was determined that the whole testimony of this witness could be
  excluded from consideration without impairing the force of the testimony for
  the prosecution, upon which the findings rest, the erroneous action of the
  court in this respect does not affect the validity of the sentence. The
  findings and sentence are approved. In view of the unanimous recommendation by
  the members of the court that accused shall receive executive clemency on
  account of his gallant services during the war, and of his former good
  character, and in consideration of evidence, by affidavits presented to the
  war department since his trial, showing that accused is now, and was at the
  time when his offense was committed, suffering under great infirmity in
  consequence of the wounds received in battle, and credible representations
  having been made that he would be utterly unable to pay the fine imposed, the
  president is pleased to remit all of the sentence except so much thereof as
  directs cashiering, which will be duly executed.
  'WM. W. BELKNAP, Secretary of War.'

The said secretary also issued, January 16, 1873, a general order of the war
department No. 7, series of 1873, announcing the sentence of the court-martial,
and that 'Major Benjamin P. Runkle, U. S. Army, (retired), ceases to be an
officer of the army from the date of this order.' [122 U.S. 543, 548]   From the
date of this order till after August 4, 1877, the claimant's name was not borne
upon the army register.
(5) August 4, 1877, R. B. Hayes, president of the United States, made the
following order:
  'In the Matter of the Application of Major Benjamin P. Runkle, U. S. Army,
  'The record of official action heretofore taken in the premises shows the
  following facts, to-wit: First. That on the fourteenth of October, 1872, Major
  Runkle was found guilty by court-martial upon the following charges, to-wit:
  'Charge 1. Violation of the act of congress approved March 2, 1863, c. 67, 1.
  Charge 2. Conduct unbecoming an officer and a gentleman.' Second. That on the
  sixteenth of January, 1873, W. W. Belknap, then secretary of war, approved the
  proceedings of said court, and thereupon caused general order No. 7, series of
  1873, to issue from the war department, by which it was announced that Major
  Benjamin P. Runkle was cashiered from the military service of the United
  States. Third. That subsequent to the date of said general order No. 7,
  to-wit, on the sixteenth day of January, 1873, Major Runkle presented to the
  president a petition, setting forth that the proceedings of said court had not
  been approved by the president of the United States, as required by law; that
  said conviction was unjust; that the record of said proceedings was not in
  form or substance sufficient in law to warrant the issuing of said order; and
  asking the revocation and annulment of the same. Fourth. That, in pursuance of
  this petition, the record of the official action theretofore had in the
  premises was, by direction of the president, Ulysses S. Grant, referred to the
  judge advocate general of the United States army for review and report. [122
  U.S. 543, 549]   Fifth. That thereupon the judge advocate general reviewed the
  case, and made his report thereon, in which it is reported and determined,
  among other things, that, in the proceedings had upon the trial of the case by
  said court, 'it is nowhere affirmatively established that he (Major Runkle)
  actually appropriated any moneyt o his own use.' It also appears in said
  report that the conviction of said Runkle, upon charge one as aforesaid, is
  sustained upon the opinion that sufficient proof of the crime of embezzlement
  on the part of the accused was disclosed by the evidence before the court. And
  with respect to charge two no reference to the same is made in said report,
  except to deny the sufficiency of the evidence in the case, for a conviction
  upon the fourteenth specification thereof; and it is to be observed that the
  thirteen remaining specifications under this charge are identical with the the
  thirteen specifications under charge one. The judge advocate general further
  finds and determines in said report as follows, to-wit: 'For alleged failures
  to pay, or to pay in full,' on the part of the subagents, 'I am of the opinion
  that the accused cannot justly be held liable.' Sixth. That no subsequent
  proceedings have been had with reference to said report, and that the said
  petition of said Runkle now awaits further and final action thereon.
  Whereupon, having caused the said record, together with said report, to be
  laid before me, and having carefully considered the same, I am of opinion that
  the said conviction is not sustained by the evidence in the case, and the
  same, together with the sentence of the court thereon, are hereby disapproved;
  and it is directed that said order No. 7, so far as it relates to said Runkle,
  be revoked.
  'R. B. HAYES.'

At the time of the issue by President Hayes of this order, the number of
officers on the retired list of the army was 300, and continued so until
November 19, 1877. During that period the claimant was carried on the army
records as additional to the number of retired officers allowed by law, until a
vacancy occurred on said last-named date; since which date he has [122 U.S. 543,
550]   been borne on the retired list, and up to January 1, 1884, has drawn pay
to the amount of $23,585.62. Of this sum $9,195.27 was paid to him August 15,
1877, for the period from January 16, 1873, the date of the order signed by
Secretary Belknap, to the fourth of August, 1877, the date of the order of
President Hayes.

(6) August 7, 1877, the claimant addressed a letter to the paymaster general of
the army, asserting his legal right to pay as a retired major for the period of
time between the dates of those two orders. This letter the paymaster general
referred to the secretary of war with the following indorsement:
  'Respectfully forwarded to the Hon. Secretary of War.
  'It has been enjoined that questions of payment in such cases shall be
  submitted to the secretary of war. See letter of July 7, 1863, from Col. J. A.
  Hardee, asst. adjt. general, to the paymaster general, stating the orders of
  the war department that 'an officer restored to the service either by the
  revocation of the order of dismissal or discharge, or by simple restoration,
  is not entitled to pay for the period that he was out of service, unless the
  same is expressly ordered by the war department.' The language of the judge
  advocate general on this point is to the same effect. See Judge Advocate's
  Digest of 1868, p. 266. 'Where an order of the war department for the
  dismissal, discharge, or muster-out of an officer is subsequently revoked, and
  he reinstated in his former rank and position, it is competent for the
  president, in his discretion, to allow him pay for the interval during which
  he was illegally separated from the service under the original order.' The
  course of military administration has, however, developed no precise rule on
  this subject, each case of a claim for pay by such an officer having been, in
  practice, determined by the special circumstances surrounding it.
  'BENJ. ALVORD, Paym'r General U. S. Army.
  'P. M. G. Office, August 9, 1877.' [122 U.S. 543, 551]   The secretary of war
  returned the letter to the paymaster general, through the adjutant general,
  and when it reached the paymaster general it had on it the following
  'Respectfully returned (through the adjustat general) to the paymaster
  general. By the order of the president of August 4, 1877, the approval of the
  proceedings and sentence in the case of Major B. P. Runkle, of date January
  16, 1873, was revoked, the said proceedings and sentence were disapproved, and
  the order of dismissal was set aside. This order of the president must be
  accepted by this department as revoking said order of dismissal from its
  inception, and as annulling all its consequences. As Major Runkle was, at the
  time of his trial and sentence, an officer of the retired list, the fact that
  he has not been on duty in the interim can make no difference, since a retired
  officer is not subject to duty. He will therefore be paid whenever funds are
  available for that purpose. This indorsement has been submitted to and is
  approved by the president.

GEORGE W. MCCRARY, Secretary of War.
  'War Dept., August 13, '77.
  'Noted and respectfully forwarded.
  'E. D. TOWNSEND, Adjt. Gen'l.
  'August 14, '77.'

Upon receiving back the said letter, with said indorsements, the paymaster
  'Respectfully returned (through the adjustant general)
  'Respectfully referred to Major Alexander Sharp, P. M., U. S. A. Present. Maj.
  Runkle was last paid to include January 15, 1873.
  'CHAS. T. LARNED, Acting Paym'r Gen'l U. S. Army.
  'C. T. L., P. M. G. O., August 15, 1877.' [122 U.S. 543, 552]   It was in
  obedience to the order of the president, signified by the above indorsement of
  the secretary of war, that the claimant was paid the aforesaid sum of

Upon the foregoing facts the conclusions of law were as follows: (1) That the
claimant is not entitled to recover longevity pay; (2) that the defendants are
not entitled, under their counter-claim, to recover the pay received by the
claimant as a retired major, which accrued after the fourth or August, 1877,
amounting to $14,390.35; (3) that the defendants are entitled, under their
counter-claim, to recover of the claimant $9,195. 27, being the amount paid him
for the time between January 16, 1873, and August 4, 1877. 19 Ct. Cl. 395.
From a judgment entered in accordance with these conclusions both parties

M. F. Morris, Geo. W. McCrary, and Donn Piatt, for Runkle.
Asst. Atty. Gen. Howard, for the United States. [122 U.S. 543, 553]  

We will first consider the second of the questions referred to the court of
claims, namely: [122 U.S. 543, 554]   'Were the proceedings and findings of said
court-martial regular, and the sentence duly approved by the president of the
United States, as required by law?' [122 U.S. 543, 555]   The sixty-fifth
article of war, (2 St. 367, c. 20,) in force at the time of these proceedings,
was as follows: 'Any general officer commanding an army, or colonel commanding a
separate department, may appoint general courts-martial whenever necessary. But
no sentence of a court-martial shall be carried into execution until after the
whole proceedings shall have been laid before the officer ordering the same, or
the officer commanding the troops for the time being; neither shall any sentence
of a general court-martial, in the time of peace, extending to the loss of life,
or the dismission of a commissioned officer, or which shall, either in time of
peace or war, respect a general officer, be carried into execution until after
the whole proceedings shall have been transmitted to the secretary of war, to be
laid before the president of the United States for his confirmation or
disapproval and orders in the case. All other sentences may be confirmed and
executed by the officer ordering the court to assemble, or the commanding
officer, for the time being, as the case may be.'

Thus it appears that the sentence of a general court-martial in time of peace,
to the effect that a commissioned officer be cashiered,- dismissed from
service,-is inoperative until approved by the president. Before then it is
interlocutory and inchoate only. Mills v. Martin, 19 Johns. 7, 30; Sim. Cts.
Mart. (6th Ed.) c. 17, p. 294. A court-martial organized under the law of the
United States is a court of special and limited jurisdiction. It is called it o
existence for a special purpose, and to perform a particular duty. When the
object of its creation has been [122 U.S. 543, 556]   accomplished it is
dissolved. 3 Greenl. Ev. 470; Brooks v. Adams, 11 Pick. 442; Mills v. Martin,
supra; Duffield v. Smith, 3 Serg. & R. 590, 599. Such, also, is the effect of
the decision of this court in Wise v. Withers, 3 Cranch, 331, which, according
to the interpretation given it by Chief Justice MARSHALL in Ex parte Watkins, 3
Pet. 193, 207, ranked a court-martial as 'one of those inferior courts of
limited jurisdiction whose judgments may be questioned collaterally.' To give
effect to its sentences, it must appear affirmatively and unequivocally that the
court was legally constituted; that it had jurisdiction; that all the statutory
regulations governing its proceedings had been complied with; and that its
sentence was conformable to law. Dynes v. Hoover, 20 How. 65, 80; Mills v.
Martin, 19 Johns. 33. There are no presumptions in its favor so far as these
matters are concerned. As to them, the rule announced by Chief Justice MARSHALL
in Brown v. Keen, 8 Pet. 112, 115, in respect to averments of jurisdiction in
the courts of the United States, applies. His language is: 'The decisions of
this court require that averment of jurisdiction shall be positive; that the
declaration shall state expressly the facts on which jurisdiction depends. It is
not sufficient that jurisdiction may be inferred argumentatively from its
averments.' All this is equally true of the proceedings of courts-martial. Their
authority is statutory, and the statute under which they proceed must be
followed throughout. The facts necessary to show their jurisdiction, and that
their sentences were conformable to law, must be stated positively; and it is
not enough that they may be inferred argumentatively.

As the sentence now under consideration involved the dismissal of Runkle from
the army, it could not become operative until approved by the president, after
the whole proceedings of the court-martial had been laid before him. The
important question is therefore whether that approval has been positively shown.

The court of claims has found as a fact in the case that the 'proceedings,
findings, and sentence of said court-martial were transmitted to the secretary
of war,' but it has not [122 U.S. 543, 557]   found that they were laid before
the president, or acted on by him, otherwise than may be inferred
argumentatively from the orders of the secretary of war, and the subsequent
action of President Grant andPresident Hayes. There can be no doubt that the
president, in the exercise of his executive power under the constitution, may
act through the head of the appropriate executive department. The heads of
departments are his authorized assistants in the performance of his executive
duties, and their official acts, promulgated in the regular course of business,
are presumptively his acts. That has been many times decided by this court.
Wilcox v. Jackson, 13 Pet. 498, 513; U. S. v. Eliason, 16 Pet. 291, 302;
Confiscation Cases, 20 Wall. 92, 109; U. S. v. Farden, 99 U.S. 10 , 19; Wolsey
v. Chapman, 101 U.S. 755 , 769.

Here, however, the action required of the president is judicial in its
character, not administrative. As commander in chief of the army, he has been
made by law the person whose duty it is to review the proceedings of
courts-martial in cases of this kind. This implies that he is himself to
consider the proceedings laid before him, and decide personally whether they
ought to be carried into effect. Such a power he cannot delegate. His personal
judgment is required, as much so as it would have been in passing on the case if
he had been one of the members of the court-martial itself. He may call others
to his assistance in making his examinations, and in informing himself as to
what ought to be done, but his judgment, when pronounced, must be his own
judgment, and not that of another. Ad this because he is the person, and the
only person, to whom has been committed the important judicial power of finally
determining, upon an examination of the whole proceedings of a court-martial,
whether an officer holding a commission in the army of the United States shall
be dismissed from service as a punishment for an offense with which he has been
charged, and for which he has been tried.

In this connection the following remarks of Atty. Gen. Bates, in an opinion
furnished President Lincoln under date of March 12, 1864, (11 Op. Attys. Gen.
21,) are appropriate: [122 U.S. 543, 558]   'Undoubtedly the president, in
passing upon the sentence of a court- martial, and giving to it the approval
without which it cannot be executed, acts judicially. The whole proceeding, from
its inception, is judicial. The trial, finding, and sentence are the solemn acts
of a court organized and conducted under the authority of and according to the
prescribed forms of law. It sits to pass upon the most sacred questions of human
rights that are ever placed on trial in a court of justice,-rights which, in the
very nature of things, can neither be exposed to danger, nor subjected to the
uncontrolled will of any man, but which must be adjudged according to law. And
the act of the officer who reviews the proceedings of the court, whether he be
the commander of the fleet or the president, and without whose approval the
sentence cannot be executed, is as much a part of this judgment, according to
law, as is the trial or the sentence. When the president, then, performs this
duty of approving the sentence of a court- martial dismissing an officer, his
act has all the solemnity and significance of the judgment of a court of law.'
We go, then, to the record to see whether it shows positively and distinctly
that the sentence dismissing Runkle from the service was approved by President
Grant. It does appear affirmatively that it was disapproved by President Hayes;
and, if not approved by President Grant, Runkle was never legally out of the
service. It is true that, if it had been approved, the subsequent disapproval
would have been a nullity, and could not have the effect of restoring him to his
place; but, if not approved, he was never out, and the disapproval kept him in,
the same as if the court-martial had never been convened for his trial. In Blake
v. U. S., 103 U.S. 227 , followed in U. S. v. Tyler, 105 U.S. 244 , it was
decided that the president had power to supersede or remove an officer of the
army by the appointment, by and with the consent of the senate, of his
successor; but here there was nothing of that kind. Runkle was never removed
otherwise than by the sentence of the court-martial, and the order of the war
department purporting to give it effect.

Coming, then, to the order on which reliance is had to show [122 U.S. 543, 559] 
the approval of President Grant, we find it capable of division into two
separate parts,-one relating to the approval of the proceedings and sentence,
and the other to the executive clemency which was invoked and exercised. It is
signed by the secretary of war alone, and the personal action of the president
in the matter is nowhere mentioned, except in the remission of a part of the
sentence. There is nothing which can have the effect of an affirmative statement
that 'the whole proceedings' had been laid before him for action, or that he
personally approved the sentence. The facts found by the court of claims show
that the proceedings, findings, and sentence of the court-martial 'were
transmitted to the secretary of war, and that he wrote the order thereon,' but
there they stop. What he wrote is in the usual form of departmental orders, and,
so far as it relates to the approval of the sentence, indicates on its face
departmental action only.

What follows in the order does not, to say the least, clearly show the contrary.
It relates to the executive clemency which was exercised, and then, for the
first and only time, it appears, in express terms, that the president acted
personally in the matter. It is there said: 'The president is pleased to remit
all of the sentence, except so much thereof as directs cashiering.' If all the
rest of the order was the result of the personal action of the president, why
was it referred to here, and not elsewhere? Might it not fairly be argued from
this that the rest was deemed departmental business, and that part alone
personal which required the exercise of the personal power of the president,
under the constitution, of granting pardons? And besides, according to the order
as it stands, this action of the president was had, not on 'the whole
proceedings,' but 'in view of the unanimous recommendation of the members of the
court,' 'the former good character' of the accused, and 'in consideration of
evidence by affidavits presented to the war department since the trial,' and
'credible representations.' If 'the whole proceedings' had actually been laid
before him, as required by the articles of war, it was easy to say so.
Then, again, at the end of the order, are these words, 'which [122 U.S. 543,
560]   [the sentence] will be duly executed.' That which immediately preceded
related to the remission of a part of the sentence, and the secretary was
careful to say that this was done by the president in person. The omission of
any such language, or implication even, in the words which were added, leaves
the order open to the construction that the secretary was acting all the time on
the idea that the personal judgment of the president was required only in
reference to that part of the proceeding which involved the exercise of the
pardoning power, and that the rest belonged to the department.

Still further, it appears, from the order of President Hayes, they 'the record
of official action' showed that 'on the sixteenth of January, 1873, W. W.
Belknap, then secretary of war, approved the proceedings of said court,' and
thereupon issued the order from the war department announcing that Runkle was
cashiered; and that after this order was issued, but on the same day, Runkle
presented to President Grant a petition setting forth, among other things, 'that
the proceedings of said court had not been approved by the president of the
United States as required by law.' This petition was not only received by
President Grant, but it was by him referred to the judge advocate general for
'review and report.' Upon this reference the judge advocate general acted and
reported on the whole case. President Grant did nothing further in the premises,
and the matter remained open when President Hayes came into office. He then took
it up as unfinished business, and, acting as though the proceedings had never
been approved, entered an order of disapproval.

Under these circumstances, we cannot say it positively and distinctly appears
that the proceedings 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 required, before the sentence could be carried into execution.
Consequently, Major Runkle was never legally cashiered or dismissed from the
army, and he is entitled to his longevity pay, as well as that which he has
already received for his regular pay, both before the order of Secretary Belknap
was revoked and afterwards.

[122 U.S. 543, 561]   Such being our view of the case, it is unnecessary to
consider any of the other questions which were referred to the court of claims.
Neither do we decide what the precise form of an order of the president
approving the proceedings and sentence of a court-martial should be, nor that
his own signature must be affixed thereto. But we are clearly of opinion that it
will not be sufficient unless it is authenticated in a way to show otherwise
than argumentatively that it is the result of the judgment of the president
himself, and that it is not a mere departmental order which might or might not
have attracted his personal attention. The fact that the order was his own
should not be left to inference only.

The judgment of the court of claims is reversed, and the cause remanded for
further proceedings in conformity with this opinion.