5. The Secretary of the Navy is under no obligation to order a member of the Naval Reserve Force before a retiring board because the Board of Medical Survey recom mended it. [For other cases, see Executive Departments, II. c, in Digest Sup. Ct. 1908.] Army and Navy duty of Secretary, Weeks, 259 U. S. 326, 66 L. ed. 965, 42 of Navy to act on recommendations Sup. Ct. Rep. 505; United States ex rel. of Board of Medical Survey. Creary v. Weeks, 259 U. S. 336, 66 1. ed. 973, 42 Sup. Ct. Rep. 509; Dynes v. Hoover, 20 How. 65, 82, 15 L. ed. 838, 844; Marbury v. Madison, 1 Cranch, 137, 166, 2 L. ed. 60, 70; United States v. Jones, 18 How. 92, 15 L. ed. 274; United States ex rel. Brown v. Root, 18 App. D. C. 239; Decatur v. Paulding, 14 Pet. 497, 10 L. ed. 559; Ex parte Reed, 100 U. S. 13, 22, 25 L. ed. 538, 539; Lochren v. United States, 6 App. D. C. 506; Hitchcock v. United States, 22 App. D. C. 275; Brown v. Spelman, 255 Fed. 863; Women's Catholic Order of Foresters v. People, 59 Ill. App. 390; Scammon v. American Gas Co. 98 Kan. 812, P.U.R. 1917A, 531, 160 Pac. 316. Mandamus to compel observance of instructions to Naval Retiring Board. 6. A rule with respect to the retirement of Naval officers which, by order of the President, was stricken from the Naval regulation and embodied in instructions to Naval retiring boards, has no binding effect upon the Secretary of the Navy so that nonobservance of it by him can be made the basis of a proceeding in mandamus to compel its observance. [For other cases, see Mandamus, II. d, in Digest Sup. Ct. 1908.] Courts supervision of discretion of President. 7. The right of a Naval officer, disabled in the line of duty, to retirement on pay; is, by statute, dependent on the judgment of the President of the United States, over which the courts have no control. [For other cases, see Courts, I. e, in Digest Sup. Ct. 1908.] [No. 47.] Argued October 5, 1923. ON ber 12, 1923. The order of the Secretary of the Navy did not operate to retire the defrom the Naval Reserve Force, and did fendant in error, or to discharge him not deprive him of any eligibility for retirement that he otherwise would have had. Miller v. United States, 19 Ct. Cl. 353; Emory v. United States, 19 Ct. Cl. 263. Mr. Daniel Thew Wright argued the Decided Novem- cause, and, with Mr Philip Ershler, filed a brief for defendant in error: N WRIT of Error to the Court of Appeals of the District of Columbia, to review a judgment affirming that part of a judgment of the Supreme Court which granted a writ of mandamus to compel the Secretary of the Navy to revoke an order directing the release of relator from active service in the Navy. Reversed. See same case below, 51 App. D. C. 335, 279 Fed. 317. The facts are stated in the opinion. Mr. George Ross Hull argued the cause, and Solicitor General Beck, Special Assistant to the Attorney General Rufus S. Day, and Mr. George Melling, filed a brief for plaintiff in error: An appeal to the President is the remedy of a naval officer who considers himself aggrieved by an order issued to him by the Secretary of the Navy. Where the officer does not avail himself of that remedy, but appeals to the courts for a writ of mandamus commanding the Secretary of the Navy to revoke and rescind a military order, the courts are without jurisdiction to grant such relief. Reaves v. Ainsworth, 219 U. S. 296, 306, 55 L. ed. 225, 229, 31 Sup. Ct. Rep. 230; United States ex rel. French v. The office of the Secretary of the Navy being without power or authority to discharge Berry without a hearing before a Retiring Board, the act of the incumbent of that office in undertaking so to do was not an act of the office, but was the personal interference by an official person with official records by intruding void and illegal orders in such wise as to deprive Berry of statutory rights so long as the unlawful orders stand. The mandamus awarded controls a purely ministerial act, concerning which the law withholds all discretion. United States ex rel. Parish v. Mac Veagh, 214 U. S. 124, 53 L. ed. 936, 29 Mr. Chief Justice Taft delivered the opinion of the court: This was a petition for mandamus filed ir the supreme court of the District of Columbia by a member and officer of the Naval Reserve Force, as relator, to com (Comp. Stat. § 2634, 6 Fed. Stat. Anno. 2d ed. p. 1121), be retired from active service or wholly retired without a full and fair hearing before a Navy retiring board if he should demand it, the Secre violation of law and that he could be compelled to revoke his action. This would reinstate him to the status of a Naval Reserve officer in the active service, with full pay as such from October 18, 1919. pel the Secretary of the Navy to revoke an order directing the release of the relator from active service in the Navy and to make an order sending him before a retiring board, with a view to his retirement by the President. [31] The su-tary had retired him from the service in preme court sustained a demurrer to the amended answer of the Secretary and, the latter electing not to plead further, the court issued a mandamus as prayed. The Secretary carried the case on appeal to the court of appeals of the DisThe Naval Reserve Force was estabtrict, which affirmed the part of the mandamus directing revocation of the lished by the Naval Appropriation Act order of release and reversed the part of August 29, 1916 (39 Stat. at L. pp. requiring that the Secretary send the 556, 587, chap. 417, Comp. Stat. § relator before a retiring board. The 2900a). By its provisions, the Naval Secretary brings this writ of error to Reserve Force was to be composed of the judgment of the court of appeals. citizens of the United States who, by The case involves the construction of the enrolment therein or transfer thereto, general statutes of the United States ap- should obligate themselves to serve in the plicable to the Naval Reserve Force and Navy in time of war or during an emerthe retirement of its officers. We, there-gency declared by the President. Enfore, have jurisdiction of the writ under rolment was to be for four years. A § 250, 6, of the Judicial Code. clothing gratuity was allowed and reThe relator, being an officer in the tainer pay of $12 a year or more, accordNaval Reserve Force, was ordered being to class, was to be paid to those who fore a naval board of medical survey kept the Secretary advised of their and on October 14, 1919, was found by whereabouts. The same grades and that board to be under permanent dis- ranks were provided up to the rank of ability which was incurred in line of Lieutenant Commander, as existed in the duty and was not the result of his own rank and file of the Navy. The Presimisconduct. The board recommended dent commissioned the commissioned that the relator be sent before a retiring officers. The Secretary issued warrants board. The Secretary of the Navy for- to the warrant officers. During peace or warded this recommendation to the when no national emergency existed, Bureau of Navigation, the executive bu- members might be discharged at their reau of the Navy, disapproved, and di- own request on return of the clothing rected that "this officer be ordered to gratuity. Members might be ordered inproceed to his home and be released from to active service in the Navy by the active duty." The Bureau of Naviga- President in time of war or when in his tion, on November 17, 1919, accordingly opinion a national emergency existed, issued to the relator this announcement: "You are hereby detached from such duty as may have been assigned you; you will proceed to your home and regard yourself honorably discharged from active service in the Navy." The relator wrote to the Secretary of the Navy requesting that his case be referred to a retiring board for consideration, to which the Secretary replied denying the plaintiff's right either to have his case so considered or to be placed on the retired list. The next day, November 18, 1919, this action was brought. [32] The court of appeals held that because the relator as Naval Reserve officer, if disabled in the line of duty, was eligible for retirement under the same conditions as provided for regular naval officers, and because no officer of the Navy could, under § 1455, Rev. Stat. and might be required to perform such It is quite evident from the foregoing that members of this force occupied two statuses, one that of inactive duty, and in which that term is used in § 1455, the other of active service. It is fur- Rev. Stat., which reads as follows: ther clear that it was within the power "No officer of the Navy shall be retired of the President and of the Secretary of from active service, or wholly retired the Navy acting for him, to change the from the service, without a full and fair members of the Reserve Force from one hearing before such Navy retiring status to the other. The power to call board, if he shall demand it, except in them from inactive duty to actual serv- cases where he may be retired by the ice was express. The power to order President at his own request, or on acthem from actual service to inactive count of age or length of service, or on duty was necessarily implied. How this account of his failure to be recomshould be done was within the discretion mended by an examining board for proof the President and his alter ego in motion." the Navy Department, the Secretary. United States v. Jones, 18 How. 92, 95, 15 L. ed. 274, 275. The vesting of the right to make regulations to carry out the act in the Secretary shows that he was to act for the President. As a matter of practice in the Department, the method of calling out the members of the Reserve Force, and of sending them back to inactive duty, was by order of the Secretary of the Navy (Gen. Order No. 237 of October 6, 1916) left to the Bureau of Navigation, and under that Bureau mobilization and demobilization of the Reserve Force were carried on un This section was adopted in 1861 (August 3, 1861, 12 Stat. at L. p. 291, chap. 42, Comp. Stat. § 2634, 6 Fed. Stat. Anno. 2d ed. p. 1121) and applied to regular officers in the Navy. The retirement from active service, and complete retirement provided in the section, are to be understood as they apply to such officers. Officers in the regular Navy who have become unfit for service before the retiring age are subject to three methods of retirement. One is when the disability is in the line of duty and their retirement pay is [35] three fourths of the pay of their rank on active duty. The other two are when the disability is not incurred in line of duty; and in one the retirement pay is furlough or one half of leave of absence pay of their rank in active service, and in the other there is full retirement to civilian life on a year's full of their rank. pay Rev. Stat. §§ 1453, 1454, Comp. Stat. §§ 2632, 2633, Section 1455 was enacted to prevent an 6 Fed. Stat. Anno. 2d ed. pp. 1120, 1121. abuse of the power of retirement by superior officers. Section 1455, Rev. Stat., has been made applicable to officers on active service in the Naval Reserve Force when disabled in line of duty, first by implication in a proviso of the Act of July 1, 1918 (40 Stat. at L. 704, 710, chap. 114), "that no member of the Naval Reserve Force shall be eligible for retirement other than for physical disability and then, incurred in line of duty; after this suit was brought, by direct provision in the Act of June 4, 1920 (41 Stat. at L. p. 834, chap. 228, Comp. Stat. § 2626a, Fed. Stat. Anno. Supp. 1920, P. 146), as follows: der special orders and circulars. Orders releasing individuals from active service and putting them on inactive duty were clearly within the power of the President and of the Secretary of the Navy acting for him in the administration of the [34] act. Nowhere is there found any limitation upon the discretion of the Executive in this regard. The orders in such cases were in the nature of military orders by the Commander in Chief in the assignment or withdrawal of available forces to or from duty for the good of the service. Such orders of withdrawal could not and did not make members of the Naval Reserve Force civilians. They did not release them from obligation under their enrolment to render active service again when ordered to do so by the proper authority. When the Bureau of Navigation detached relator from active duty and told him to go home and regard himself as honorably discharged from active service in the Navy, he was not ousted from the Naval Reserve Force or the Navy. The "That all officers of the Naval Reserve words "honorably discharged" were only who have heretofore incurred or may Force and temporary officers of the Navy to advise him and others that the change hereafter incur physical disability in line of his status from active to inactive duty of duty shall be eligible for retirement was not because of his fault or mis-under the same conditions as now proconduct. The court of appeals, however, construed this order to be an effort to retire the relator from the Navy in the sense vided by law for officers of the regular Navy who have incurred physical disability in line of duty." By act approved July 12, 1921 (42 Stat. af L. pp. 122, 140, chap. 44, Comp. |fore a retiring board because a board of Stat. § 2626a, Fed. Stat. Anno. Supp. medical survey recommended it. 1921, p. 249), the above was amended by adding a proviso as follows: "Provided, however, That application for such retirement shall be filed with the Secretary of the Navy not later than October 1st, 1921." The proviso shows reflexively that Congress had always intended to give one entitled to retirement the right to apply for it. Section 1448, Rev. Stat., provides that whenever an officer reports himself unable to perform his duties, or whenever in the opinion of the President he is incapacitated, the President may in his discretion direct the Secretary of the Navy to refer the case to a retiring board. By the followng sections, 1449 to 1454, the board is to report its finding as To be retired from active service under to the incapacity of the officer, and, the sections from 1448 to 1455, Rev. [37] if it exists, whether it was an inStat., Comp. Stat. §§ 2627-2634, 6 Fed.cident of the service. The record is to Stat. Anno. 2d ed. pp. 1119-1121, inclu- be transmitted to the Secretary and by sive, means retired with pay, and has had him laid before the President, whose this meaning for many years. Brown v. approval is necessary to the retirement. United States, 113 U. S. 568, 572, 28 L. The mode of dealing with cases of dised. 1079, 1080, 5 Sup. Ct. Rep. 648. To ability is covered by the regulations of be wholly retired means to be removed the Navy approved by the President, to from the service entirely, on [36] pay- which the statute gives the force of law. ment of a lump sum, and to become a Sec. 1547, Rev. Stat., Comp. Stat. § 2805, civilian. Miller v. United States, 19 Ct. 6 Fed. Stat. Anno. 2d ed. p. 1161, Naval Cl. 338, 353, 29 Ops. Atty. Gen. 401. No Regulation 361 of 1913, gave authority form of retirement is a removal by way to the commander in chief of a fleet, comof punishment. Indeed, § 1456, Rev. mandant of a station, or other commandStat., expressly forbids retirement be- ing officer, to order a medical survey of cause of misconduct on account of any person in his command. Under Regwhich an officer may be sent before a ulation 364 the board of survey of an court-martial. It is very clear, there- officer was authorized to recommend fore, that a mere change of status from treatment, or sick leave, but if the disactive service to inactive duty in the ability was deemed permanent, it might Naval Reserve Force is not a "retire- | recommend that the officer be ordered bement" in the meaning of § 1455, Rev. fore a retiring board. By regulation 365, Stat., the Act of July 1, 1918, or that when a person surveyed was within the of June 4, 1920. United States or the waters thereof, or in the Caribbean or adjacent waters, and was found unfit for duty, and the commanding officer approved the finding and recommendation of the board as to what should be done, this was to be carried out "except in cases involving discharge, travel, leave, or retirement, which shall be referred to the Department." There was no reason why, after the relator had been ordered to inactive duty in the Naval Reserve Force, he might not have applied for retirement under the provision of the Act of 1918, or later under the Act of June 4, 1920. But it is said that the Secretary di rected the release of the relator from active service and refused him a retiring board because he was of opinion that under the Act of July 1, 1918, and before the Act of June 4, 1920, Reserve Force officers were not entitled to be retired on pay, but that they must apply for the relief extended to persons disabled in the service by §§ 300 and 302 of the War Risk Insurance Act of October 6, 1917 (40 Stat. at L. 398, 405, 406, chap. 105, Comp. Stat. §§ 514qqq, 514r). Because the Secretary gave a wrong reason for his action is not a ground for requiring him by mandamus to revoke the order putting the relator on inactive duty, if he had discretion to do this, as we have found he did have. Regulation 331, subdivision 5, once provided: "When any officer on the active list form the duties of his office, and the becomes physically incapacitated to perprobable future duration of such incapacity is permanent or indefinite, he will immediately be ordered before a retiring board, and pending final action upon the question of his retirement will not be examined for promotion." Counsel for the relator has maintained ulation, is under a statutory duty to that the Secretary, by reason of this regorder a retiring board for an officer physically incapacitated, and that he has no discretion in the matter. Its history and the abuse it was intended to stop, as Nor was the Secretary of the Navy well as § 1448, would make such a conunder obligation to order the relator be-struction hard to sustain, but we need HARVEY MCCONAUGHEY, Appt., v. Canal, et al., Appellees. (See S. C. Reporter's ed. 39-49.) Appeal — jurisdiction Statutes construction Supreme Court ratification not go into this. It suffices to say that, [38] adopted in 1915, it has since lost its statutory force. By order of the J. J. MORROW, Governor of the Panama President, dated January 14, 1916, it was stricken from the Navy Regulations and was thereafter embodied in instructions to naval retiring boards. Naval Courts and Boards, 1917, § 679. Even if it could have been construed as claimed when it 1. The question whether or not the had the effect of law, it could not now United States district court for the Canal be made the basis of a proceeding in Zone could grant an equitable remedy mandamus against the Secretary. It against an officer of the canal as a repregoverns his subordinates only, and may is not one of jurisdiction which is appealsentative of the United States government be ignored by him. United States v.able directly to the Supreme Court of the Burns, 12 Wall. 246, 252, 20 L. ed. 388, United States, under § 238 of the Judicial 389; Re Smith, 24 Ct. Cl. 209. A board Code as amended in 1915. of medical survey is simply an executive instrumentality which the Secretary may use to obtain an expert opinion as to the physical capacity of an officer or man. Its recommendations involving retirement must always come to the Secretary for his approval. In the due course of business in the Navy Department applications for retirement dependent on disability must also come before the Secretary, who, acting for and in aid of the President, makes preliminary inquiry into the need of ordering a retiring board. The statute does not require the President to direct the Secretary of the Navy to refer a case to a retiring board. Submitted October 4, 1923. Decided NoIt expressly puts it in the discretion of the President to do so or not to do so. It would be a curious inconsistency in the procedure if the Secretary were compelled by law to order a retiring board to consider an officer's case, which the President is given discretion to grant or withhold. But it is argued that an officer disabled in the line of his duty is, by § 1455, entitled as of right to retirement on pay, and that the courts should secure him that right. The right is one dependent by statute on the judgment of the President and not on that of the courts. If, on the preliminary inquiry of the Secretary, he disapproves the application for a retiring board, the officer may appeal directly to the President for action on his petition. This opportunity was provided by § 5323, Naval Instructions 1913, and would exist without it. [39] For these reasons, we think that the demurrer to the answer should have been overruled. Judgment reversed and the cause remanded for further proceedings. 68 L. ed. of orders of Canal Commission effect. 2. The provision in § 2 of the Panama Canal Act of 1912 that all laws, orders, regulations, and ordinances adopted and promulgated in the Canal Zone by order of the President for the government and sanitation of the zone and the construction of the canal are ratified and confirmed as binding until Congress shall otherwise provide does not include a mere regulation fuel, electricity, and other service without that employees shall be furnished quarters, charge. [No. 48.] vember 12, 1923. APPEAL by complainant from a de cree of the United States Circuit Court of Appeals for the Fifth Circuit affirming a decree of the United States District Court for the Canal Zone, dismissing a bill filed to enjoin the execution of an order requiring complainant to pay for quarters, fuel, electricity, and services furnished him as a government employee. Affirmed. See same case below, 279 Fed. 617. Note. On direct review in Federal Supreme Court of judgments of district or circuit courts-see notes to Gwin v. On construction of statutes, generally, -see notes to Riggs v. Palmer, 5 L.R.A. 340; Maillard v. Lawrence, 14 L. ed. U. S. 925; United States v. Saunders, 22 L. ed. U. S. 736; and Blake v. National City Bank, 23 L. ed. U. S. 119. 153 |