6. Held that it could not affect the operation of an order summarily dismissing an officer as "second lieutenant," that, before its being communicated to him by being promulgated to the regiment, he had become by promotion a first lieutenant. VI, 558.

7. A dismissal of an officer by executive order does not operate to disqualify him for reappointment to military office, or for appointment to civil office under the United States. XXXVI, 330.

8. There can be no revocation of a duly executed order of dismissal, however unmerited or injudicious the original act may be deemed to have been. For distinct as dismissal by order is, in its nature, from dismissal by sentence, (see § 1 supra,) the effect of the proceeding in divesting the office is the same in each case. An officer dismissed by an order, though his dismissal may have involved no disgrace, is assimilated to an officer dismissed by sentence, (see DISMISSAL, I § 6,) in so far that he is completely relegated to a civil status, having in law no nearer or other relation to the military service than has any civilian who has never been in the army. Thus an order assuming to revoke a legal order of dismissal is as unauthorized as it is ineffectual. The original dismissal is an act done which cannot be undone, and the order, which is the evidence of it, is therefore incapable of revocation or recall. Nor can that be affected indirectly which cannot legally be done. directly. An officer dismissed by executive order cannot be relieved by being allowed to resign or be retired, or by being granted an honorable discharge. For, in order to be discharged, &c., from the army, he must first be in the army, and there is but one mode by which 'an officer once legally separated from the army can be put into it, viz: by a new appointment according to the Constitution. XXXI, 504;

1

See IV Opins. of Attys. Gen. 124; XII Id. 424-8; XIV Id. 520; XV Id. -, (Opinion of February 12, 1878.) A contrary view expressed by the Court of Claims, in its earlier period, in a series of cases,-see Smith v. United States, 2 Ct. Cl. 206; Winters v. United States, 3 Id. 136; Barnes v. United States, 4 Id. 216; Montgomery v. United States, 5 Id. 93,-was finally practically abandoned in McElrath v. United States, 12 Id. 201.

2See VIII Opins. of Attys. Gen. 235; XII Id. 421; XIII Id. 5; McElrath v. United States, 12 Ct. Cl. 202.

XXXV, 392, 466; XXXVI, 216, 330; XXXVII, 451; XXXVIII, 61, 159; XXXIX, 248, 474; XLI, 153, 611; XLII, 73. [Compare DISMISSAL, I § 6. But, in connection with the general rule here stated, see DISMISSAL, III.]

DISMISSAL, III-BY ORDER: TRIAL IN CASE OF. [Act of March 3, 1865, c. 79, s. 121-now Sec. 1230, Rev. Sts.]

1. Held that the provision on this subject of the Act of 1865-referring as it does to officers "hereafter dismissed"— was not retroactive in its operation, and did not embrace cases of officers dismissed by order before the date of its passage. XV, 150: XVI, 631; XX, 518. And similarly held as to the provision now incorporated in Sec. 1230, Rev. Sts.; the same, though somewhat differently worded from the original statute, being construed as not intended to enlarge the application of the latter. XXXVII, 618; XXXVIII, 160.

2. The statute does not indicate within what period after the dismissal the application for a trial should be made. It can only be said that, in preferring it, due diligence should be exercised-that it should be presented within a reasonable time. XXI, 169. Held that a party who, (without any sufficient excuse,) delayed for nine years to apply for a trial under the statute might well be regarded as having waived his right thereto. It could scarcely have been contemplated by Congress that a dismissed officer should be at liberty to defer his application for a trial till the evidence on which he was dismissed, or a material part of the same, had ceased to exist, and his restoration would thus be made certain. XLII, 446.

3. Though it may be sufficient that the application made under the statute should state simply that the applicant has

This statute was held by the Attorney General, (XII Opins. 4,) not to be unconstitutional, in that it was not "obnoxious to the objection that it invades or frustrates the power of the President to dismiss an officer." More serious objections to its constitutionality are believed to be: 1, that it authorizes the subjecting to military trial of a civilian: 2, that in restoring an officer to the army it substitutes the action of a court martial for the appointing power of the President. See, to a similar effect, the opinion of the Solicitor General of May 29, 1878, (XVI Opins. —.)

2

3

Compare IV Opins. of Attys. Gen. 170; V Id. 384.

been "wrongfully" dismissed, the preferable form would be for the applicant to set forth in what the alleged wrong consisted. XVI 513.

4. Where a trial of a volunteer officer under this statute resulted in an acquittal, and his original dismissal thus became "void," but meanwhile his regiment had been mustered out of service, held that he was properly entitled to an honorable discharge as of the date of the muster out of the regiment, with full pay and allowances up to that time. XII, 659.

5. Whatever might be the effect, under existing law, upon the status of a volunteer officer, acquitted or not dismissed by a court martial upon a trial under this statute, of the fact that the vacancy created by his original dismissal had been meanwhile filled,-held that the effect in a similar case of an officer of the regular army would be to add him to the army as an extra officer in his previous grade. XVI, 169; XX, 188.

6. Under the statute of 1865 there were but few trials; this legislation having been followed in the next year by the provision of the Act of July 13, 1866, (now incorporated in the second clause of Sec. 1229, Rev. Sts., and the new 99th Article of War,) prohibiting executive dismissals of officers of the army and navy in time of peace. Since the date of this Act there have been no trials under the Act of 1865: the later statute indeed would appear to have deprived the earlier one of all present application and effect. Thus held, (December, 1879,) that an officer dropped for desertion under the first clause of Sec. 1229, Rev. Sts., was not entitled, upon application therefor, to a trial under Sec. 1230; that the provision of the former section making such an officer ineligible for re-appointment in the army was incompatible with his restoration by the action of a court martial under the latter section; and that the latter section applied only to officers dismissed by order of the President, under the general power to remove public officers appointed by him and frequently exercised in cases of army officers during the late war, (see DISMISSAL, II § 1,) but which, as to its exercise in time of peace, had been divested by Congress by the Act of July 13, 1866. XLII, 446.

7. Although the Act provides that if the sentence of the court be not one of death or dismissal, the party tried shall be restored to his office, yet held, in a case in which the court

acquitted the accused, that the President possessed the authority, vested in reviewing 'officers in all other cases tried by court martial, of returning the proceedings to the court for revision, (see REVISION,) and was therefore empowered to re-assemble the court for a reconsideration of the testimony, on the ground that the same did not, in his opinion, justify the acquittal. XIX, 191.

DISOBEDIENCE OF ORDERS.

SEE TWENTY FIRST ARTICLE § 5-10.

DISQUALIFICATION.

Disqualification, or incapacity to hold office under the United States, is a punishment certainly sanctioned by precedent in the military service. It is indeed specifically authorized in two Articles of war, Nos. 6 and 14, (providing for the punishment of false muster and like offences,) but is here apparently intended not as an independent punishment but as a penal consequence incident upon conviction and sentence of dismissal. As a distinctive punishment, however, it has been imposed in many cases,' and has apparently been

1Instances of sentences, including, (generally with dismissal,) the punishment of disqualification, are to be found in the following Orders of the War Department (or Hdqrs. of Army,) published before the late war, the instances being none of them cases of conviction of false muster:-G. O. of April 2, 1818; do. of Sept. 25, 1819; do. 71 of 1829; do. 15 of 1860. [The infrequency of this punishment in the early Orders may perhaps be owing in part to the fact that it was considered that "cashiering"-a sentence often adjudgedinvolved disqualification. See CASHIERING.] Similar instances of the same punishment occur in the following Orders issued from the War Department during and since the late war: G. O. 18, 94, 159, 184, 242, 249, 332, 389, of 1863; do. 36, 51, 69, of 1864; G. C. M. O. 175, 251, 277, 369, 395, 404, of 1864; do. 6, 46, 85, 125, 201, 205, 219, 232, 238, 260, 270, 315, 365, 397, 432, 541, 565, 584, 602, 649, of 1865; do. 22, 68, 82, 89, 111, 161, 181, of 1866; do. 21, 52, 56, 62, 89, 91, 98, of 1867; do. 2, 58, of 1868; do. 44 of 1869; do. 14, 15, of 1870. Instances of this punishment have also been noted in the following Orders issued from the military Departments, Armies, &c.: G. O. 60, 64, 76, 86, 89, 99, 106, of 1863; do. 2, 4, 20, 24,

regarded as a particularly suitable penalty in cases of embezzlement of public funds or other fraud upon the government. In some instances the disqualification, as adjudged, has extended to the holding of public office in general; in others it has been confined to the holding of military office. Disqualification, being a continuing punishment, may of course be removed by a remission of the same, by the pardoning power, at any time during the life of the party. But, while the disqualification for military office is less objectionable than the more general form, it may well be doubted whether this species of punishment, inasmuch as it assumes in effect to inhibit the exercise by the Executive of the appointing power, is 28, 30, 32, 51, of 1864; do. 9, 12, of 1865-Army of the Potomac: do. 18, 81, of 1864; do. 11, of 1865-Dept. of the East: do. 81 of 1864-Dept. of Pennsylvania: do. 96 of 1864; do. 23, 27, of 1865-Middle Department: do. 22 of 1865-Middle Military Division: do. 15 of 1863; do. 30 of 1865-Dept. of West Virginia: do. 34, 113, 175, of 1864; do. 49, 82, of 1865-Dept. of Virginia and North Carolina: do. 32, 33, of 1864-Dept. of the Ohio: do. 19 of 1865-Dept. of Kentucky: do. 17, 21, 33, of 1863-Dept. of the Tennessee: do. 3 of 1863; do. 6, 22, of 1864-Dept. and Army of the Tennessee: do. 14 of 1865; do. 5 of 1866-Dept. of Tennessee: do. 21 of 1863; do. 24 of 1864; do. 77, 112, of 1865-Dept. of the Missouri: do. 8 of 1866Dept. of Florida: do. 67 of 1863; do. 74. of 1865-Dept. of the Gulf: do. 55 of 1864-Mil. Div. of W. Mississippi: do. 87 of 1867-Second Mil. Dist. This punishment, however, has, since 1870, been discontinued in the practice of our courts martial, and this discontinuance is to be traced to the ruling of the Attorney General in an opinion addressed to the Secretary of the Navy in 1868, (XII Opins. 528,) to the effect that a sentence of a naval court martial by which a contractor for naval supplies was excluded from future dealings for such supplies with the government, was illegal; sentences of disability in general being further held to be "not in accordance with the custom of the service except where expressly authorized by law." This ruling was applied to a military case in G. C. M. O. 22, (as also in do. 57,) War. Dept., &c., of 1870, and the punishment of disqualification imposed upon an officer disapproved as unauthorized. But whatever may have been the usage of naval courts martial, the very numerous precedents of cases in which such punishment had been adjudged by military courts for a great variety of offences, were, it is considered, quite sufficient to have established that this penalty was sanctioned by custom in the army. That it is, however, subject, intrinsically, to serious legal objection, is indicated in the