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Under Articles 19 and 20 of the act of July 17, 1862, 12 Stat. 605, the rear
admiral convening the court martial was not obliged to confirm the sen
tence of dismissal. The approval by the President sufficiently appears where the record shows
that the sentence was submitted to the President and his approval appears at the foot of a brief in the case and the Secretary of the Navy writes to the accused that the President has approved the sentence.
This is a petition for pay as a Lieutenant Commander from February 8, 1868, when defendant was dismissed from the naval service pursuant to the sentence of a general courtmartial, until March 9, 1871, when he was reinstated by special act of Congress. The Court of Claims made a finding of facts, the material parts of which are incorporated in the opinion, and dismissed the petition. 38 C. CI. 473.
Mr. Irwin W. Schultz for appellant:
The alleged court-martial had no jurisdiction over appellant as he had already been punished for the alleged offense by his arrest and suspension from duty on May 31, 1867. Par. 1205, Nav. Reg. 1865; and see also pars. 455, 1122, 1202, 1210, 1212; Art. 38, laws regulating the Navy, act of 1800, 2 Stat. 50.
The judgment of a court-martial may be collaterally attacked. Ex parte Watkins, 3 Pet. 270.
The court-martial was illegally constituted. Art. II, act of 1862, 12 Stat. 603. As to convening courts-martial see Mills v. Martin, 19 Johns. (N. Y.) 29; Runkle v. United States, 122 U. S. 543; Brown v. Keene, 8 Pet. 115; Nav. Reg. 1900, par. 1837. Statutory provisions as to constitution of the court must be observed, otherwise it is fatal. Wells on Jurisdiction, 1880, 88 15–17, 40–42, 47; Keyes v. United States, 109 U. S. 136; Fry v. Warden, 100 N. Y. 26. It is doubtful whether the accused could have waived an objection to the jurisdiction of the court. Brook v. Davis, 17 Pick. 148; S. C., 22 Pick. 498.
The sentence is void because not affirmed by the rear admiral and the President. Arts. 19, 20, act of 1862, 12 Stat. 600; par. 1239, Nav. Reg. 1865; Re Sands and Rinker,
2 Am. St. Papers, War Affairs, 539; 2 Op. Atty. Gen. 19; 1 Winthrop's Mil. Law, 639; 13 Op. Atty. Gen. 459; cases
Mr. Assistant Attorney General Pradt and Mr. Assistant Attorney Felix Brannigan for the United States, submitted.
MR. JUSTICE Brown, after making the foregoing statement, delivered the opinion of the court.
This case depends upon the validity of the findings and sentence of the court-martial, and is brought under an act of Congress approved June 6, 1900, 31 Stat. 1612, nearly thirty years after petitioner was recommissioned as a Lieutenant Commander, which enacted "that the claim of Joshua Bishop for alleged items of pay, due and unpaid to him for services as a Lieutenant Commander
be, and the same is hereby referred to the Court of Claims. Jurisdiction is hereby conferred on said court to try said cause, and the statute of limitations shall not apply thereto, and to render final judgment therein, and subject to the right of appeal by either party.” Claimant insisted in the court below that this statute was not a mere waiver of limitations, but a recognition that claimant was a Lieutenant Commander during the time referred to in the act, but as this point is not made in the briefs filed in this court, it may be considered as abandoned.
The action of the court-martial in dismissing the petitioner from the service is attacked upon the following grounds:
1. That the court had no jurisdiction over him, because he had already been punished for the offenses charged against him, viz., drunkenness and neglect of duty.
It appears from the findings that Bishop was a Lieutenant Commander in the naval service, attached to the steamer Wyoming, then lying in the harbor of Nagasaki, Japan; that he was ordered by his commanding officer to have his ship ready for sea by daylight on the morning of the thirty-first
of May, 1867, but that he went ashore and did not return until after daylight. On May 31 the following entries appear on
“From 4 to 8 A. M.
“Lieutenant Commander Joshua Bishop was suspended from duty by order of Lt. Commander C. C. Carpenter.
“GEORGE B. GLIDDEN, Master." “From 6 to 8 P. M.
“At 6.40 Lt. Comdr. Joshua Bishop was restored to duty by order of Rear Admiral H. H. Bell.
“GEORGE B. GLIDDEN, Master."
Upon being placed on trial before the court-martial Bishop pleaded that he was placed under arrest for the offenses specified (drunkenness and neglect of duty), but was ordered released from arrest by Rear Admiral Bell; and in this connection refers the court to paragraph 1205, Navy Regulations of 1865, then in force, as follows:
“An offense committed at any one time, for which a person in the Navy shall have been placed under arrest, suspension or confinement, and subsequently entirely discharged therefrom by competent authority, or for which he shall have been otherwise fully punished, is to be regarded as expiated, and no further martial proceedings against him for the offense itself are ever afterwards to take place," etc.
Conceding that the petitioner was within the letter of the regulations, inasmuch as he was suspended from duty in the morning of May 31 and restored to duty on the evening of the same day, we do not think the case is within its real meaning, which looks to a punishment of the offense by such suspension. As it appears that Bishop was intoxicated during the preceding day, and went ashore and failed to report at daylight on the next morning, it would naturally be inferred that his suspension from duty was not intended as a punishment, but as a reasonable precaution for the maintenance of good order and discipline aboard.
That this was the understanding of the Rear Admiral is evidenced from the following letter restoring him to duty:
“U. S. FLAGSHIP HARTFORD,
“NAGASAKI, JAPAN, May 31, 1867. “Lieut. Comm’d'r C. C. CARPENTER,
“Comm’d'g U. S. S. Wyoming, Nagasaki. “SIR: Your communication of this date, reporting Lieutenant Commander Bishop to me, is received.
“You will restore Lieutenant Commander Bishop to duty to await an opportunity for time to investigate the case. "I am, sir, very respectfully,
"H. H. BELL “Rear Admiral, Commanding U.S. Asiatic Squadron.” It is quite evident that the words “arrest, suspension or confinement," in paragraph 1205, contemplate an action in the nature of a punishment, upon the infliction of which the offense is to be regarded as expiated; but as the order restoring Bishop to duty was on its face merely to give "time to investigate the case," we do not think the order of suspension could have been intended as a punishment in itself, or as an expiation of the previous offense, nor did the order of Admiral Bell "entirely discharge” the accused within the meaning of g 1205 of the Navy Regulations.
2. No further proceedings appear to have been taken until June 21, 1867, when charges and specifications were preferred by Rear Admiral Bell, and on September 5, 1867, the following entry appears upon the log: “From 4 to 8 A. M.
“Lt. Comdr. Joshua Bishop placed under arrest to await trial by court-martial, and served with copy of charges, by order of Rear Admiral H. H. Bell, comdg. U. S. Asiatic squadron.
"E. F. CRAWFORD, Mate."
The petitioner cites in this connection Article 38 of the laws regulating the Navy, approved April 23, 1800, 2 Stat. 45, 50, 51, providing that “all charges, on which an application
for a general court-martial is founded, shall be exhibited in writing to the proper officer, and the person demanding the court shall take care that the person accused be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest," and insists in this connection that he should have been served with a copy of the charges and specifications on May 31, 1867, when he was suspended. The objection is unfounded.
As already indicated, the first arrest was a temporary precaution for the preservation of good order and for further investigation. There was no opportunity for the preparation of charges and specifications, and evidently this was not the arrest contemplated by the above act.
It is true that paragraph 1202 of the Naval Regulations of 1865 provides that offenders shall be brought to trial within thirty days after notice to the proper authority, empowered to convene such court, or shall be released from arrest and returned to duty, and so remain until a court-martial can be convened to try him, “when he shall be again arrested on the day before the court is convened, so as to undergo his trial before it.” As petitioner had been “released from arrest and returned to duty” on May 31, and so remained until September 5, when he was “again arrested" on the day before the court-martial was ordered to convene; and as he was served with a copy of the charges and specifications on the day he was arrested, we see nothing in these proceedings of which he is entitled to complain. The point is completely covered by Johnson v. Sayre, 158 U. S. 109, 117.
3. Petitioner's contention that the court-martial was illegally constituted rests upon article 11 of the act of July 17, 1862 (12 Stat. 600, 603), providing that “no general court-martial shall consist of more than thirteen nor less than five conmissioned officers as members; and as many officers shall be zummoned on every such court as can be convened without njury to the service, so as not to exceed thirteen; and the senior officer shall always preside, the others taking place