Statement of the Case. the 2d cuniform bone, parts of the 1st and 3d cuniform, and the proximal end of the 2d metatarsal bone, on acc't of which resection he was sent to the rear at New Orleans. Respectfully, your ob't servant, EUGENE F. SANGER, Brevet Lt. Col. and late Brigade Surgeon, late Medical Director, 19th Army Corps, now Examining Sur geon Pension Bureau. The foregoing surgeon's certificate was duly referred to the Surgeon General of the army. The order of reference and the Surgeon General's report thereon were as follows: WAR DEPARTMENT, ADJUTANT GENERAL'S OFFICE, WASHINGTON, March 4, 1878. Respectfully referred to the Surgeon General, U. S. Army, for his opinion as to whether the disability of Captain Badeau, for which he was retired, can be regarded as bringing him within that class of officers specified in the proviso of § 2, act of March 3, 1875, (G. O. 16 of 1875,) who have "an arm or leg permanently disabled by reason of resection on account of wounds." The proceedings of the Retiring Board in Captain Badeau's case and other papers are enclosed herewith. By order of the Secretary of War. E. D. TOWNSEND, SURGEON GENERAL'S OFFICE, March 6, 1878. Respectfully returned to the Adjutant General of the army with opinion that the evidence submitted is sufficient to establish that Captain Badeau's case comes properly within that class of officers specified by § 2, act of March 3, 1875, as one in which an arm or leg is permanently disabled by reason of resection on account of wounds. J. W. BARNES, Surgeon General. Statement of the Case. Whereupon the Secretary of War, on the 3d July, 1878, made the following order, under which the claimant was borne on the retired list of the army up to the time of his bringing this action: WAR DEPARTMENT, July 3, 1878. Respectfully returned to the Adjutant General of the army. The former decision in Captain Badeau's case was correct, as the record then stood, but it now appearing that his case comes clearly within the provisions of the proviso to § 2, act of March 3, 1875, his name will be restored to the retired list. GEORGE W. MCCRARY, Secretary of War. V. From the 18th May, 1869, to the 6th December, 1869, the claimant received no pay as a military officer, nor has he received military pay at any time while holding a diplomatic or consular office. From the 6th December, 1869, to the 21st February, 1870, while assigned to duty in the city of Washington as a retired officer under the act 21st January, 1870, (16 Stat. 22,) the claimant was paid as a captain in active service the sum of $396.92, during which period he was rendering service as an officer. From the 21st of February, 1870, to the 31st October, 1882, the claimant was paid as an officer on the retired list, for periods when he was not holding a diplomatic or consular office, the sum of $2163.18. There has been withheld from the claimant while not holding a diplomatic or consular office his pay as a retired officer from November 1, 1882, to November 25, 1882, amounting to $ There has been withheld from the claimant while holding a diplomatic or consular office between the 19th May, 1869, and the 19th February, 1884, when this action was brought, his pay as a retired officer, amounting to the sum of $ VI. The claimant was beyond the seas at the times when the foregoing claims accrued, and his petition was filed in this court within three years after the disability had ceased. Opinion of the Court. CONCLUSIONS OF LAW. The court being equally divided upon the foregoing findings as to the claimant's right to recover, does, for the purposes of an appeal, frame the following conclusions of law: The petition of the claimant and the counter-claim of the defendants should both be dismissed. Thereupon judgment was entered dismissing the petition of the claimant and the counter-claim of the United States. Appeals were prosecuted by both parties to this court, and the records filed herein August 10 and October 5, 1887. On the 5th of October, 1888, a stipulation was filed, adding to the record certain conclusions and order of the Court of Claims and certain matters introduced in evidence, at a stage of the case prior to the final findings. Mr. Daniel P. Hays for Badeau. Mr. Assistant Attorney General Howard and Mr. F. P. Dewees for the United States. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. Section 2 of the act of March 30, 1868, entitled "An act making appropriations for the consular and diplomatic expenses of the government for the year ending thirtieth June, 1869, and for other purposes," (15 Stat. 56, 58,) is as follows: "That any officer of the Army or Navy of the United States. who shall, after the passage of this act, accept or hold any appointment in the diplomatic or consular service of the government, shall be considered as having resigned his said office, and the place held by him in the military or naval service shall be deemed and taken to be vacant, and shall be filled in the same manner as if the said officer had resigned the same." This was carried into the Revised Statutes (1874) as & 1223. By § 18, c. 42, act of August 3, 1861, (12 Stat. 290,) it was provided "that the officers partially retired shall be entitled to wear the uniform of their respective grades, shall continue Opinion of the Court. to be borne upon the Army Register or Navy Register, as the case may be, and shall be subject to the rules and articles of war, and to trial by general court-martial for any breach of the said articles." And this was re-enacted as § 1256 of the Revised Statutes. By 16 of the said act of August 3, 1861, it was provided "that there shall not be on the retired list at any one time more than seven per centum of the whole number of the officers of the Army as fixed by law," while by § 5 of the act of July 15, 1870 (16 Stat. 317), "the number of officers who may be retired in accordance with existing laws shall be in the discretion of the President: Provided, That the whole number on the retired list shall at no time exceed three hundred;" and this reappears as § 1258 of the Revised Statutes. By 23 of the act of July 15, 1870 (16 Stat. 320) "any retired officer may, on his own application, be detailed to serve as professor in any college," and such is § 1260 of the Revised Statutes. By the first section of "An act relating to retired officers of the Army," approved January 21, 1870, (16 Stat. 62,) it was provided "that no retired officer of the Army shall hereafter be assigned to duty of any kind, or be entitled to receive more than the pay and allowances provided by law for retired officers of his grade; and all such assignments heretofore made shall terminate within thirty days from the passage of this act;" but by resolution of April 6, 1870 (16 Stat. 372) the law of January 21st was limited so as not to apply "to officers selected by the Board of Commissioners of the Soldiers' Home, District of Columbia, for duty at that institution, such selection being approved by the Secretary of War," and this is re-enacted in § 1259 of the Revised Statutes. By 18 of the act of July 15, 1870, already referred to, (16 Stat. 319,) it was enacted "that it should not be lawful for any officer of the Army of the United States on the active list to hold any civil office, whether by election or appointment, and any such officer accepting or exercising the functions of a civil office shall at once cease to be an officer of the Army, and his commission shall be vacated thereby," and this is carried into the Revised Statutes as § 1222. Opinion of the Court. Thus in the acts of 1868 and 1870, and in §§ 1222 and 1223 of the Revised Statutes, Congress distinguished, and adhered to the distinction, between officers on both lists and officers on the active list only, and between ordinary civil appointments and appointments in the diplomatic or consular service. No officer, whether on the active or retired list, could accept appointment in the latter, and remain an officer, but that rule was not applied to retired officers in the matter of holding a civil office. The second section of the act of Congress of March 3, 1875, reads as follows: "That all officers of the army who have been heretofore retired by reason of disability arising from wounds received · in action shall be considered as retired upon the actual rank held by them, whether in the regular or volunteer service, at the time when such wound was received, and shall be borne on the retired list and receive pay hereafter accordingly; and this section shall be taken and construed to include those now borne on the retired list, placed upon it on account of wounds received in action: Provided, That no part of the foregoing act shall apply to those officers who had been in service as commissioned officers twenty-five years at the date of their retirement; nor to those retired officers who had lost an arm or leg, or has an arm or leg permanently disabled by reason of resection, on account of wounds, or both eyes by reason of wounds received in battle; and every such officer now borne on the retired list shall be continued thereon, notwithstanding the provisions of section two, chapter thirty-eight, act of March thirty, eighteen hundred and sixty-eight and be it also provided, That no retired officer shall be affected by this act who has been retired or may hereafter be retired on the rank held by him at the time of his retirement; and that all acts or parts of acts inconsistent herewith be, and are hereby, repealed." 18 Stat. 512, c. 178. By 32 of the act of July 28, 1866, (14 Stat. 337,) it was provided "that officers of the regular Army entitled to be retired on account of disability occasioned by wounds received in battle, may be retired upon the full rank of the command VOL. CXXX-29 |