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Message to the House of Representatives Returning Without Approval the Joint Resolution Declaring the Retirement of Captain Charles B. Stivers Legal and Valid

September 30, 1890

To the House of Representatives:

I return herewith without my approval the joint resolution (H. Res. No. 39) declaring the retirement of Captain Charles B. Stivers, of the United States Army, legal and valid, and that he is entitled as such officer to his pay.

Captain Stivers was dismissed the service summarily by order of the President on July 15, 1863. A subsequent examination into the causes leading to this action seems to have satisfied the President that an injustice had been done to the officer, and on the 11th day of August, 1863, an order was issued revoking the order of dismissal and restoring Captain Stivers to duty as an officer of the Army. On December 30, 1864, by a proper order from the War Department, after examination, Captain Stivers was placed upon the retired list of the Army.

The Supreme Court has decided in the case of The United States vs. Cotson (114 U. S. Reports, 619):

First. That at the time of the issuance of the order of dismissal the President had authority under the law to summarily dismiss an officer, and that the effect of such an order was absolutely to separate the officer from the service.

Second. That having been thus separated from the service he could not be restored except by nomination to the Senate and its advice and consent to the appointment.

Mr. Garland, as Attorney-General, gave an opinion to the Secretary of War in the case of Captain Stivers, based upon the decision of the Supreme Court to which I have referred, holding that Captain Stivers was not an officer on the retired list of the Army. The present Attorney-General, with whom I have conferred, takes the same view of the law. Indeed, the decision of the Supreme Court to which I have referred is so exactly in point that there can be no doubt as to the law of the case. It is undoubtedly competent for Congress by act or joint resolution to authorize the President, by and with the advice of the Senate, to appoint Captain Stivers to be a captain in the Army of the United States and to place him upon the retired list. It is also perfectly competent by suitable legislation for Congress to give to this officer the pay of his grade during the interval of time when he was improperly carried upon the army lists. But the joint resolution which I herewith return does not attempt to deal with the case in that way. It undertakes to declare that the retirement of Captain Stivers was legal and valid and that he always has been and is entitled to his pay as such officer. I do not think this is a competent method of giving the relief intended. The retirement under the law as it then existed was not legal and valid, as the highest judicial tribunal under the Constitution has declared, for the reason that Captain Stivers was not then an officer on the active list. That being so, it follows, of course, that he was not entitled to draw the pay of an office he did not hold.

The relief should have taken the form usual in such cases, which is to authorize the appointment of the officer to a place made for him on the retired list.

BENJ. HARRISON

APP Note: Title devised by Gerhard Peters

Benjamin Harrison, Message to the House of Representatives Returning Without Approval the Joint Resolution Declaring the Retirement of Captain Charles B. Stivers Legal and Valid Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/205194

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