The proceedings, findings and sentence of a military
court-martial being transmitted to the Secretary of War, that
officer wrote upon the record the following order, dating it from
the "War Department" and signing it with his name as "Secretary of
War:"
"In conformity with the 65th of the Rules and Articles of War,
the proceedings of the general court-martial in the foregoing case
have been forwarded to the Secretary of War for the action of the
President. The proceedings, findings and sentence are approved, and
the sentence will be duly executed."
Held that this was a sufficient authentication of the
judgment of the President and that there was no ground for treating
the order as null and void for want of the requisite approval.
When a court-martial has jurisdiction, errors in its exercise
cannot be reviewed in an action against the United States by the
officer court-martialed to recover salary.
Runkle v. United States, 122 U.
S. 543, questioned upon the ground that the report of
that case shows that the circumstances were so exceptional as to
render it hardly a safe precedent in any other.
Page 148 U. S. 85
The claimant filed an amended petition in the Court of Claims
December 16, 1890, as a substitute for his original petition filed
December 11, 1889, seeking to recover from the United States a
certain amount of money as arrears of pay alleged to be due him as
captain on the retired list of the army, to which the government
filed a general traverse December 22, 1890. Thereupon due
proceedings were had, and the court on June 8, 1891, found, in
substance, the following facts:
Bird L. Fletcher, the claimant, was on December 27, 1859,
enlisted as a private in the general mounted service of the United
States army. After successive promotions, by which he became
corporal and second lieutenant, he was brevetted first lieutenant
on May 10, 1863, for gallant and meritorious service in the cavalry
action at Franklin, Tennessee. He was made first lieutenant on
October 12, 1864, in which rank he served until August 25, 1867,
when he was promoted captain. On June 19, 1868, he was placed on
the retired list of the army by order of General Grant upon the
finding of a board of examination that he was incapacitated for
active service and that his incapacity was the result of sickness
and exposure incident to the service. The order retiring him
directed that his name be placed upon the list of retired officers
of the class provided for by the Act of Congress of August 3, 1861,
in which the disability results from long and faithful service, or
from some injury incident thereto.
A court-martial was held in Philadelphia, Pennsylvania, July 10,
1872, before which Fletcher was brought for trial upon a charge of
conduct unbecoming an officer and a gentleman, and upon this
charge, which was supported by the averments of six specifications,
he was tried. He was not represented by counsel on the trial, but
conducted his case in person, and to the charge and all the
specifications pleaded not guilty.
The specifications related to the incurring and nonpayment of
certain indebtedness, and Fletcher was found guilty of all of them,
some parts of the first, second, and fifth excepted, and guilty of
the charge, and sentenced to be dismissed the service.
Page 148 U. S. 86
The proceedings, findings, and sentence of the court-martial
were transmitted to the Secretary of War, who wrote upon the record
the following order:
"War Department, July 24th, 1872"
"In conformity with the 65th of the Rules and Articles of War,
the proceedings of the general court-martial in the foregoing case
have been forwarded to the Secretary of War for the action of the
President."
"The proceedings, findings, and sentence are approved, and the
sentence will be duly executed."
"Wm. W. Belknap"
"
Secretary of War"
From the date of this order, July 24, 1872, Fletcher received no
pay as an officer of the army.
He did not dispute at the War Department the validity of the
dismissal, in pursuance of the sentence of the court-martial, for
the period of nearly sixteen years, but did promptly petition
Congress for redress, and urge his restoration to the retired list,
and he made application for pay to the accounting officers of the
Treasury after March 1, 1888. His complaint stated that March 27,
1888, he addressed a petition to the President of the United
States, and this resulted in a report of the Judge Advocate General
to the Secretary of War, April 17, 1888, that, in accordance with
Runkle v. United States, 122 U. S. 543,
there was no evidence that the proceedings in Fletcher's case had
been laid before or approved by the President, and that the case
was still subject to the President's action. The Secretary of War
then transmitted the report and the original record to the
President, stating that the proceedings of the court-martial
awaited his action, as it appeared from the facts in the report
that Fletcher was still undoubtedly an officer of the army, and
recommending that the sentence be approved. On July 5, 1888, the
President made an order approving the proceedings, findings, and
sentence of the court-martial.
In his amended petition in the Court of Claims, the claimant
alleged that the proceedings, findings, and sentence of the
Page 148 U. S. 87
court-martial and the orders approving the same were void for
the reason that the charge and specifications upon which he was
tried and sentenced stated no offense within any of the articles of
war, and because the order of the Secretary of War in 1872 was not
the act of the President.
The Court of Claims held that the said charge and specifications
stated an offense within the articles of war, but that the sentence
of the court-martial did not take effect until acted upon by the
President on July 5, 1888. The court therefore allowed the claimant
all pay claimed by him, except such as was barred by the statute of
limitations, up to the date of the last order approving the
sentence of the court-martial, and gave judgment for the claimant
for $9,654. 26 Ct.Cl. 541.
From this judgment both parties appealed.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
The claimant's suit was for arrears of pay claimed to be due him
as a retired officer of the army of the United States, accruing
from December 1, 1883, to November 30, 1890 at the rate of $2,100
per annum, and amounting to the sum of $14,700. This claim was met
by a finding and sentence of a court-martial, held on the 10th of
July, 1872, in the City of Philadelphia, whereby Fletcher was found
guilty of "conduct unbecoming an officer and a gentleman," and
sentenced to be dismissed the service.
By Article 65 of the Act of April 10, 1806, 2 Stat. 359, 367,
establishing rules and regulations for the government of the armies
of the United States, it was provided that
"no sentence of a court-martial shall be carried into execution
until after the whole proceedings shall have been laid before
Page 148 U. S. 88
the officer ordering the same or the officer commanding the
troops for the time being; neither shall any sentence of a general
court-martial, in time of peace, extending to the loss of life, or
the dismissal of a commissioned officer, or which shall, either in
time of peace or war, respect a general officer, be carried into
execution until after the whole proceedings shall have been
transmitted to the Secretary of War to be laid before the President
of the United States for his confirmation or disapproval and orders
in the case."
And Article 83 reads thus:
"Any commissioned officer convicted before a general
court-martial of conduct unbecoming an officer and a gentleman
shall be dismissed the service."
These articles and the provisions of the Act of May 29, 1830, 4
Stat. 417, amending the sixty-fifth article, were carried forward
into Articles 72 and 106 of section 1342 of the Revised
Statutes.
Upon the record of the proceedings, findings, and sentence of
the court-martial which tried Captain Fletcher, the Secretary of
War endorsed that:
"In conformity with the 65th of the Rules and Articles of War,
the proceedings of the general court-martial in the foregoing case
have been forwarded to the Secretary of War for the action of the
President. The proceedings, findings and sentence are approved, and
the sentence will be duly executed."
Was this order void on the ground that it does not appear that
the President personally approved the proceedings and directed the
execution of the sentence?
By the first sentence of the Act of August 7, 1789, 1 Stat. 49,
establishing an Executive Department, to be denominated the
"Department of War," now in substance section 216 of the Revised
Statutes, the Secretary of War is to perform and execute such
duties as shall be enjoined on, or entrusted to, him by the
President relative to the land or naval forces or to such other
matters respecting military or naval affairs as the President shall
assign to the department, and to conduct the business of the
department is such manner as the President shall from time to time
order or instruct. And we have held that while the action required
of the President in respect
Page 148 U. S. 89
of the proceedings and sentences of courts martial is judicial,
yet that such action need not be evidenced under his own hand.
Under article 65, the proceedings of this Court martial were not
forwarded to the Secretary of War for individual action by him, but
to enable him to lay them before the President, so that the latter
might take action as prescribed. There is nothing to indicate that
the Secretary of War assumed to confirm or disapprove, or issue
orders in the case, and as his endorsement showed that he was
proceeding under that article, and that he had received the record
for the purpose of being acted on by the President, the approval
and the direction for the execution of the sentence were manifestly
the acts of the President. The presumption is that the Secretary
and the President performed the duties devolved upon them
respectively, and it would be unreasonable to construe the
Secretary's endorsement as meaning that he had received the
proceedings for the action of the President in conformity with
Article 65, and had approved them himself and ordered execution of
the sentence in contravention of the article.
As we said in
United States v. Page, 137 U.
S. 673,
137 U. S.
678-680:
"Undoubtedly the action required of the President under this
article is judicial action. He decides personally, and the judgment
is his own personal judgment, and not an official act presumptively
his. But that judgment need not be attested by his sign manual in
order to be effectual."
There, the endorsement read that the proceedings had been
forwarded to the Secretary of War, and by him submitted to the
President, and we inquired:
"By what process of reasoning can the conclusion be justified
that, although these proceedings were laid before the President for
his confirmation or disapproval, yet the findings and sentence were
approved by someone else, who had no authority to act in the
premises?"
While in the case in hand it is not said that the proceedings
were submitted to the President, it is stated that they had been
forwarded to the Secretary of War for the action of the President,
and as that is followed by an approval and the direction of the
execution of the sentence, which approval and sentence could only
emanate
Page 148 U. S. 90
from the President, the conclusion follows that the action taken
was the action of the President.
The views of the Judge Advocate General, and the action of the
Secretary in 1888 upon a reference of the subject in answer to the
petition of Captain Fletcher, presented to the President, March 27
of that year, were induced by the case of
Runkle v. United
States, 122 U. S. 543, and
the present decision of the Court of Claims was based upon it.
Reference to the report of that case shows that the circumstances
were so exceptional as to render it hardly a safe precedent in any
other.
It appeared therein that the proceedings, findings, and sentence
of the court-martial were transmitted to the Secretary of War, who
on January 16, 1873, wrote upon the record an order approving the
proceedings, with certain exceptions, and the findings and
sentence, together with the further statement that, in view of the
unanimous recommendation by the members of the court that the
accused should receive executive clemency, and other facts, the
President was pleased to remit all of the sentence except so much
as directed cashiering, and that thereupon the Secretary issued a
general order announcing the sentence, as thus modified. It further
appeared that thereafter, and on the same day, Major Runkle
presented to President Grant a petition insisting that the
proceedings had not been approved by him as required by law; that
the conviction was unjust; that the record was insufficient to
warrant the issuing of the order, and asking its revocation and
annulment; whereupon, in pursuance of the petition, the record of
the official action theretofore had was, by direction of the
President, referred to the Judge Advocate General for review and
report; that this report was subsequently made, and with the
petition was found by President Hayes awaiting further and final
action thereon, and, being taken up by him as unfinished business,
the conviction and sentence were disapproved, and the order of
January 16, 1873, revoked.
This Court was of opinion that the order was capable of division
into two separate parts, one relating to the approval of the
proceedings and sentence and the other to the executive
Page 148 U. S. 91
clemency which was invoked and exercised, and that under the
circumstances, which are recapitulated, it could not be said that
it positively and distinctly appeared that the proceedings had ever
in fact been approved or confirmed by the President as required by
the articles of war.
The facts that there was no reference to Article 65 in the
Secretary's endorsement; that the objection that President Grant
had not personally examined and approved of the proceedings was
taken and urged upon President Grant himself immediately upon the
promulgation of the sentence, and that he entertained the
objection, thereby recognizing the contention, seemed to make it a
matter of argument whether he had personally acted in the
premises.
If it had been affirmatively stated that the proceedings were
submitted, perhaps the action of President Grant in the matter of
the application might have been ascribed to some other ground than
doubt as to his examination of the proceedings; but as the record
stood, this Court apparently thought that the presumptions
conflicted, and therefore felt constrained to the conclusion
announced.
We regard the certificate of the Secretary in this case, in
1872, as a sufficient authentication of the judgment of the
President, and perceive no ground upon which the order of that date
can be treated as null and void for want of the required
approval.
It is insisted, however, on behalf of the claimant that the
court-martial had no jurisdiction to try and convict Capt.
Fletcher, because the charge and specifications stated no offense
whatever "within any rules and articles of war, or known to the
military law and custom of the United States." We do not feel
called upon to set forth the specifications on which the
court-martial acted. They related to the incurring by the accused
of certain indebtedness and the nonpayment thereof, and while it is
argued that the nonpayment of debts does not justify conviction of
conduct unbecoming an officer and a gentleman, we think that the
specifications went further than that, and contained the element
that the circumstances under which the debts were contracted and
not
Page 148 U. S. 92
paid were such as to render the claimant amenable to the charge.
The evidence is not before us in any form, nor are there findings
of fact in respect to the conduct and behavior forming the subject
of inquiry. The specifications were not objected to for
insufficiency, and cannot properly be held to be, on their face,
incapable of sustaining the charge. As the court-martial had
jurisdiction, errors in its exercise, if any, cannot be reviewed in
this proceeding.
Dynes v.
Hoover, 20 How. 65;
Keyes v. United
States, 109 U. S. 336;
Smith v. Whitney, 116 U. S. 167.
The judgment is reversed, and the cause remanded, with a
direction to dismiss the petition.
