108 F.2d 481 | D.C. Cir. | 1939
In May, 1938, petitioner-appellee filed in the District Court his petition for a writ of mandamus
The facts are not in dispute. Petitioner was an officer of the regular army on active duty from 1908 to 1920, at which time he held the rank of Captain of Ordnance. On November 30, 1920, having been found physically disqualified by reason of disability incident to the service, he was retired from active service, under the provi
The former section provides that no “officer of the United States,” or person holding any place of trust or profit under the government, shall act as an agent or attorney in prosecuting any claim against the United States.
This brings us, then, to consider the provisions of the other section, which makes it unlawful for any “Senator, Member of or Delegate to Congress, * * * head of a department, or other officer or clerk in the employ of the United States, * * * directly or indirectly [to] receive, or agree to receive, any compensation * * * in relation to any proceeding * * * or other matter or thing in which the United States is a party or directly or indirectly interested, before any department.” etc.
The Court of Claims has sometimes held a retired army officer to be an “officer”
In at least two well-considered state court cases petitioner’s position finds strong support. In Reed v. Schon, 2 Cal. App. 55, 83 P. 77, 79,
“It is true that a retired officer may be detailed to perform- the duties of the several offices or employments specified in the statutory provisions that have been cited, such as an officer at a soldiers’ home, or as a professor, or in connection with the militia of the state, or in the military service in time of war; but these are mere offices or employments to which he may be appointed; and until they happen no service can be required of him. Nor can the mere fact that he is subject to the remote contingency of being thus employed be regarded as such a duty as is contemplated in the definition. All this is apparently implied in the expression ‘retired officer,’ which may be regarded as fairly synonymous with the words ‘ex-officer,’ or ‘cidevant officer,’ and implies that he is no longer an officer in the proper sense of the term.”
The other case (People v. Duane, 121 N.Y. 367, 24 N.E. 845) arose in similar circumstances. Duane had held the ’office of brigadier-general and chief of engineers in the United States Army. He was retired from active service by operation of law and took up residence in New York City, and in the same year was appointed commissioner of the aqueduct and entered upon the discharge of the duties of the office. The laws of New York provided for the appointment of commissioners, with the limitation that they should hold no other office, federal, state, or municipal. The case involved Duane’s right- to hold the office to which he had been appointed. Judge O’Brien, after an examination of the federal statutes in relation to retired officers of the army, their duties, and functions, reached the conclusion that none of these duties conferred upon Duane the character of a public officer, and likewise that none of the rights and privileges which he enjoyed under the retirement acts brought the case within the policy of the disqualifying clause of the New York statute.
Attorney General Mitchell took substantially the same view on the eligibility of a retired army officer to appointment as one of the commissioners of the District
“While a retired Army officer is subject to being recalled into military service in time of war, he is not subject tó military service in time of peace without his consent. Unless brought back into the military service he is as much in civil life as any other person. There are, throughout the United States, large numbers of retired officers actually engaged in private business and participating to the fullest extent in the civil life of the communities' in which they live, and it would be contrary to .the ordinary understanding of words to say that they are in military life rather than in civil life.”
On the strength of this, he advised that retired officers who have ceased to engage in military service are in civil life within the meaning of the District statute and therefore eligible for the position.
As against this line of reasoning, appellants principally rely upon the opinion of the Supreme Court in United States v. Tyler,
“It is impossible to hold that men who are by statute declared to be a part of the army, who may wear its uniform, whose names shall be borne upon its register, who may be assigned by their superior officers to specified duties by detail as other officers are, who are subject to the rules and articles of war, and may be tried, not by a jury, as other citizens are, but by a military court-martial, for any breach of those rules, and who may finally be dismissed on such trial from the service in disgrace, are still not in the military service.”
A few years later the Supreme Court in Wood v. United States, 107 U.S. 414, 417, 2 S.Ct. 551, 27 L.Ed. 542, held in so many words that a retired officer of the army is an officer of the United States, and in Badeau v. United States, 130 U.S. 439, 9 S.Ct. 579, 32 L.Ed. 997, construing a statute providing that “any officer of the army or navy of the United States who shall * * * accept or hold any appointment in the diplomatic or consular service of the government, shall be considered as having resigned his said office,” 15 Stat. 58, § 2, the Court held that a retired officer is an officer within the spirit of this statute.
In Kahn v. Anderson, 255 U.S. 1, 41 S. Ct. 224, 225, 65 L.Ed. 469, the contention was that by the fourth article of war only an officer in the military service of the United States was competent to sit on a court-martial and that, as retired officers were not within that requirement, the constitution of the court, including such an officer, was void. The Supreme Court rejected this contention “because it is not open to question, ‘in view of the ruling in United States v. Tyler, 105 U.S. 244, 26 L.Ed.” 985, that such officers are officers in the military service of the United States.”
In White v. Treibly, 57 App.D.C. 238, 19 F.2d 712, we were called on to decide "the question whether a retired officer of the navy is still so subject to the jurisdiction of the Secretary of the Navy as to authorize the latter to commit him to a hospital because of insanity. We answered the question in the affirmative.
In 1912 the identical question we have here, under circumstances in all respects similar to this case, was answered adversely to petitioner’s position by Attorney General Wickersham.
Much, we think, may be said in reason and common sense in favor of petitioner’s application. To us it seems a far cry to attribute to a former captain in the
“Members of the Officers’ Reserve Corps, while not on active duty, shall not, by reason solely of their appointments, oaths, commissions, or status as such, or any duties or functions performed or pay or allowances received as such, be held or deemed to be officers or employees of the United States, or persons holding any office of trust or profit or discharging any official function under or in connection with any department of the Government of the United States.”
No similar exemption is allowed to retired officers. We must hold, therefore, that petitioner is an officer in the employ of the United States within the spirit and intent of the statute and is, therefore, subject to the disabilities imposed on persons in such a position.
Reversed.
The petition was filed before the effective date of the new Rules of Civil Procedure for District Courts. 28 U.S.C.A. following section 723c. Although the writ of mandamus has been abolished, similar relief is made available under the new practice. Rule 81(b); Allison & Co. v. I. C. C., 70 App.D.C. 375, 107 F.2d 180; Levine v. Farley, 70 App.D.C. 381, 107 F. 2d 186.
26 Stat. 562, 10 U.S.C.A. § 932.
18 U.S.C.A. §§ 198, 203.
“Whoever, being an officer of the United States, or a person holding any place of trust or profit, or discharging any official function under, or in connection with, any executive department of the Government of the- United States, or under the' Senate or House of Representatives of the United States, shall act as an agent or attorney for prosecuting any claim against the United States, or in any manner, or by any means, otherwise than in discharge of his proper official duties, shall aid or assist in the prosecution or support of any such claim, or receive any gratuity, or any share of or interest in any claim from any claimant against the United States, with intent to aid or assist, or in consideration of having aided or assisted, in the prosecution of such claim, shall be fined not more than $5,-000, or imprisoned not more than one year, or both. Members of the National Guard of the District of Columbia who receive compensation for their services as such shall not be held or construed to be officers of the United States, or persons holding any place of trust or profit, or discharging any official function under or in connection with any executive department of the Government of the United States within the provision of this section. (R.S. § 5498; Mar. 1, 1901, c. 670, § 1, 31 Stat. 844; Mar. 4, 1909, c. 321, § 109, 35 Stat. 1107.)” 18 U.S.C.A. § 198.
This reference is to former officers or clerks in the civil departments of Government who are prohibited by statute from prosecuting any claim against the United States within two years after they have ceased to hold office.
“Sec. 113. Whoever, being elected or appointed a Senator, Member of or Delegate to Congress, or a Resident Commissioner, shall, after his election or appointment and either before or after he has qualified, and during his continuance in office, or being the head of a department, or other officer or clerk in the employ of the United States, shall, directly or indirectly, receive, or agree to receive,- any compensation whatever for any services rendered or to be rendered to any person, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter or thing in which the United States is a party or directly or indirectly
In re Tyler, 18 Ct.Cl. 25; Franklin v. United States, 29 Ct.Cl. 6; In re Winthrop, 31 Ct.Cl. 35.
Collins v. United States, 15 Ct.Cl. 22, 40; Geddes v. United States, 38 Ct.Cl. 428; Calhoun v. United States, 66 Ct.Cl. 545.
Review by the Supreme Court of California was denied. 2 Cal.App. 59, 83 P. 77.
36 Op. Atty. Gen., 389, 399.
105 U.S. 244, 246, 26 L.Ed. 985.
29 Op. Atty. Gen. 397.
10 U.S.C.A. § 369.
10 U.S.C.A. § 372.