1. The Army Reorganization Act of June 4, 1920, c. 227, § 24b,
41 Stat. 773, provides (1) for a preliminary classification of all
officers into two classes, A, those who should be, and B, those who
should not be, retained in the service; (2) for a hearing of those
placed in class B, before a Court of Inquiry, and (3) for a
reconsideration of each case so heard by a Final Classification
Board whose finding, it declares, "shall be final and not subject
to further revision except upon the order of the President."
(a) That review of a finding of the Final Classification Board
placing an officer in class B is discretionary with the President,
not a right of the officer, and that the finality of the Board's
action is not dependent on the President's approval, either
personal or delegated. P. 259 U. S.
(b) The power of the President to approve such findings may be
exercised, on his behalf and under his authority, by the Secretary
of War. P 259 U. S.
2. Proceedings of lawfully constituted military tribunals,
acting within the scope of their lawful authority, with
jurisdiction over the person and subject matter involved, cannot be
reviewed or set aside by the civil courts by mandamus or otherwise.
P. 259 U. S.
277 F. 600 affirmed.
Error to a judgment of the Court of Appeals of the District of
Columbia, which reversed a judgment of the Supreme Court of the
District granting the writ of mandamus against the present
defendant in error and dismissed the proceeding. See also
the next case, post, 259 U. S. 336
Page 259 U. S. 327
MR. JUSTICE CLARKE delivered the opinion of the court.
In the petition in this case, a writ of mandamus is prayed for,
commanding the Secretary of War to annul an order by him,
purporting to have been made by direction and authority of the
President, approving the action of a final classification board and
retiring the relator, Col. John W. French, from active service in
the Army under the provisions of § 24b of the Army Reorganization
Act, approved June 4, 1920, 41 Stat. 759, 773, and to restore him
to the status of a colonel of infantry which he had before the
order. The Secretary of War filed an answer, and, a demurrer
thereto being sustained, the writ was allowed by the Supreme Court
of the District of Columbia, as prayed for. This judgment was
reversed by the Court of Appeals of the District of Columbia, and
the case is here on writ of error for construction of the statute,
and on the question of the jurisdiction of the court of issue a
writ of mandamus in such a case.
The Army Reorganization Act is intended to provide for a
reduction of the Army of the United States to a peace basis while
maintaining a standard of high efficiency. To contribute to this
purpose, Congress made elaborate provision in the act for retaining
in the service officers who had proved their capacity and fitness
for command and for retiring or discharging those who, for any
reason, were found to be unfit. Every step of this process is
committed to military tribunals made up of officers who, by
experience and training, should be the best qualified men in the
country for such a duty, but with their action all subject, as we
shall see, to the supervisory control of the President of the
Page 259 U. S. 328
Not being in any sense a penal statute, the act should be
liberally construed to promote its purpose, and it is of first
importance that that purpose shall not be frustrated by
unnecessarily placing technical limitations upon the agencies which
are to carry it into effect. Street v. United States,
133 U. S. 299
Section 24b deals only with the "Classification of Officers,"
and is printed in the margin. *
provided by the section for classifying and reducing the number of
officers, is as follows:
First. The President shall convene a board of not less than five
general officers, which shall arrange all officers in two classes,
"Class A, consisting of officers who should be retained in the
service, and class B, of officers who should not be retained in the
This classification is tentative, and since it is intended
simply to furnish a basis for further action, the board will be
Page 259 U. S. 329
to herein as the "Preliminary Classification Board." No
esception is taken as to the manner in which this board was
convened or as to its composition.
Second. If, when an officer is notificed that he has been placed
in Class B by the Preliminary Classification Board, he shall
request, as Col. French did, an opportunity to appear before a
Court of Inquiry, then
"he shall be furnished with a full copy of the official records
upon which the proposed classification is based and shall be given
an apportunity to present testimony in his own behalf."
The powers and procedure of such a Court of Inquiry are not
defined in the section, but their definition is found in c. II of
the act, being Articles of War 97 to 103, inclusive (41 Stat. 807),
in which it is provided, that such a Court of Inquiry "shall
consist of three or more officers" (Art. 98), that it "shall not
give an opinion on the merits
Page 259 U. S. 330
of the case inquired into unless specially ordered to do so"
(Art. 102), and that it "shall keep a record of its proceedings,
which shall . . . be forwarded to the convening authority" (Art.
103). In this case, however, § 24b provides that the record of the
Court of Inquiry shall be forwarded to the Final Classification
Third. After a hearing has been had by a Court of Inquiry, the
section requires that its record shall be forwarded to the Final
Classification Board for reconsideration of the case,
"and after such consideration, the finding of said
classification board shall be final, and not subject to further
revision except upon the order of the President."
No objection is made in this Court to the manner of the
convening nor to the membership of this board.
Fourth. After the Final Classification Board has made a finding,
if the President does not order further revision, and the officer
who has demanded the Court of Inquiry is continued in Class B, then
the section provides that another
"board of not less than three officers shall be convened to
determine whether such classification is due to his neglect,
misconduct, or avoidable habits. If the finding is affirmative, he
shall be discharged from the Army; if negative, he shall be placed
on the unlimited retired list with pay,"
as provided in the section.
This board will be hereinafter referred to as the "Honest and
Faithful Board," a name by which it is commonly and widely
designated. The action of this board is not and could not be
complained of, for it was favorable to the relator.
It is to be observed that there is no requirement in the
section, that the officer whose case is under consideration shall
either be notified of the hearing or that he shall be heard by any
of the tribunals thus provided for except the Court of Inquiry.
The facts essential to the decision of the case, derived from
the allegations of the petition not denied in the
Page 259 U. S. 331
answer and from the allegations of the answer admitted by the
demurrer, are as follows: When the relator was notified that he had
been tentatively placed in Class B as an officer not to be retained
in the Army, he requested a Court of Inquiry, which was thereupon
convened. He appeared before that court, was represented by
counsel, and was given an opportunity to present testimony of
himself and others in his behalf of which he availed himself.
The record of the Court of Inquiry was forwarded to the Final
Classification Board for reconsideration of the case, but the
classification of relator in Class B was adhered to by that board,
and was approved by the Secretary of War, under authority from the
President, which, it is averred and admitted by the demurrer, was
given to him prior to any determination in the relator's case.
Prior to the submission of the record of the Final Classification
Board to the Honest and and Faithful Board for the purpose of
having determined the cause of the relator's classification, the
Secretary of War, "acting on behalf of and by the authority of the
President," signed at the foot of that record the notation:
"Approved: Baker, Secretary of War." After the Honest and Faithful
Board has determined that relator's classification was not due to
his own neglect, misconduct, or avoidable habits, he was retired
from service by the following order:
"Washington, D.C., December 24, 1920"
"The action of the Classification Board in finally classifying
Col. John W. French, Infantry, in Class B, is approved by the
President, and, by his direction, a board of officers having
determined that such classification is not due to the officer's
neglect, misconduct or avoidable habits, Col. French is retired
from active service, after twenty-two years of commissioned
service, under the provision of § 24b of the act of Congress
approved June 4, 1920."
"Newton D. Baker"
"Secretary of War
Page 259 U. S. 332
Newton D. Baker having been succeeded by John W. Weeks as
Secretary of War, Secretary Weeks was substituted as defendant
While there are allegations in the petition that various
formalities in the procedure prescribed by § 24b were not complied
with, reliance is not placed upon any of these; in the assignments
of error in this court and in argument, the relator presses only
one question upon our attention for decision, viz.:
It is contended that § 24b imposes a personal, nondelegable,
judicial duty upon the President to review the record of the Board
of Final Classification in each case after it has made a finding,
and by his order to approve or disapprove it, and that, because the
approval in this case was not made by the President personally, but
by the Secretary of War, acting under delegated general direction
and authority from the President, it is void, and must be so
The construction of the section thus contended for obviously
would place such a burdensome, if not impossible, personal duty
upon the President during the process of reducing the army from a
war to a peace basis that, if Congress had intended to attempt such
a thing, we may be sure its purpose would have been clearly
expressed, and not left to doubtful implication.
The argument for the relator is bottomed entirely upon the use
of the words "except upon the order of the President," for there is
nothing else in the section suggesting participation by the
President after the convening of the Preliminary Classification
Board, and we are thus brought to consider the construction which
should be placed upon these seven words.
To give the effect claimed for the words by the relator would
result in denying any meaning whatever to the clear and emphatic
declaration immediately preceding them that "the finding of said
Classification Board shall
Page 259 U. S. 333
be final, and not subject to further revision," for it would
render such finding ineffective in every case until approved by the
President, and then, of course, its effect and finality would be
derived from the President's approval, and not from the finding of
the board, which would be rendered, at most, merely advisory.
Familiar principles (United States v.
12 Wheat. 460; Peck v.
7 How. 612; Montclair v.
Ramsdell, 107 U. S. 147
forbid the acceptance of such a construction save under the
compulsion of a clear expression of congressional purpose such as
is not to be found in either the section or the act we are
But both the meaning and purpose of the entire expression seem
very clear. The declaration that the finding of the Final
Classification Board shall be "final and not subject to further
revision" could not be more emphatically worded, while the
exception "upon the order of the President" is in such general
terms that it plainly contemplates only discretionary action on his
part to be taken, on the suggestion of the Secretary of War in
special cases, on the application of officers involved or their
friends, or on his own "mere motion." The exception plainly enought
was inserted not for the purpose of imposing a very great burden
upon the President, but rather as a congressional recognition of
the right in him, as the Chief Executive and Commander-in-Chief of
the Army (a right which he probably would have had without it), to
interfere in such cases at his option, leaving the finding of the
board to become final should he elect not to take any action, and
perhaps, also, for the purpose of forestalling the chance of its
being successfully argued that the unusual finality -- "not subject
to further revision" -- given to the finding of the board was
intended to place such finding beyond the power of interposition in
any case by the President. This construction gives consistent
effect to each clause of the provision, and that contended for by
the relator must be denied.
Page 259 U. S. 334
In support of his contention, which has thus been rejected, the
relator relies upon Runkle v. United States, 122 U.
, United States v. Page, 137 U.
, and United States v. Fletcher,
148 U. S. 84
of these were court-martial cases, conducted under authority of the
then sixty-fifth Article of War (2 Stat. 367, c. 20) which
prescribed that the sentence of such a court in cases such as were
there under consideration should not 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
It was held, obviously enough, that the quoted language called
for personal review and action by the President, and that making
him, as it did, it effect, a member of the court, the required
review was judicial in character, and therefore nondelegable. The
difference between such a statute and the one we have here renders
these decisions too plainly inapplicable for discussion.
Under the construction of § 24b thus arrived at, neither
personal nor delegated approval by the President of the finding by
the Final Board of Classification was necessary before action by
the Honest and Faithful Board, and, if no action whatever had been
taken by him through the agency of the Secretary of War, that
finding, by force of the express words of the statute, would have
become "final and not subject to further review," and thereupon the
case would have been ripe for the further action prescribed by the
Since the section did not require personal action by the
President, the action on his behalf and by his authority, taken by
the Secretary of War, was in a legally sufficient form. Rev.Stats.
§ 216; Wilcox v.
13 Pet. 498, 38 U. S. 513
Williams v. United
1 How. 290, 42 U. S. 297
Chicago, Milwaukee & St. Paul Ry. Co. v. United
States, 244 U. S. 351
244 U. S.
Page 259 U. S. 335
But the Court of Appeals held that the action of the Secretary
of War which is assailed in the case was taken in the exercise of
duly delegated administrative power of the President, and was
really executive action by him which the courts may not control by
mandamus or otherwise, and that therefore the judgment of the
Supreme Court of the District of Columbia was without jurisdiction
As a colonel in the Army, the relator was subject to military
law, and the principles of that law, as provided by Congress,
constituted for him due process of law in a constitutional sense.
Reaves v. Ainsworth, 219 U. S. 296
219 U. S.
By the demurrer, it is admitted that the three boards and the
Court of Inquiry provided for by § 24b were lawfuly convened and
constituted. They obviously had jurisdiction over the relator and
over the subject matter involved, and there is no contention that
any of them exceeded the scope of its lawful powers. The only
infirmity claimed to exist in the entire proceeding is that the
review and approval of the findings of the Final Classification
Board and the ultimate order retiring relator from the Army were
made by the Secretary of War, "acting in the name of and by the
authority of the President," instead of by the President
personally. But we have found this contention unsound, and that the
action of the President by the Secretary was a legally sufficient
compliance with the act of Congress.
Thus, we have lawfully constituted military tribunals, with
jurisdiction over the person and subject matter involved
unquestioned and unquestionable, and action by them within the
scope of the power with which they are invested by law. It is
settled beyond controversy that, under such conditions, decisions
by military tribunals constituted by act of Congress cannot be
reviewed or set aside by civil courts in a mandamus proceeding or
otherwise. Johnson v. Sayre, 158 U.
, 158 U. S. 118
Page 259 U. S. 336
183 U. S. 365
183 U. S.
-381; Mullan v. United States, 212 U.
, 212 U. S. 520
Collins v. McDonald, 258 U. S. 416
"If it were otherwise, the civil courts would virtually
administer the rules and articles of war, irrespective of those to
whom that duty and obligation has been confided by the laws of the
United States, from whose decisions no appeal or jurisdiction of
any kind has been given to the civil magistrate or civil
20 How. 65, 61 U. S. 82
It results that, because the action of the President, given
effect by the order of the Secretary of War, was in full compliance
with the act of Congress, and also because the Supreme Court did
not have jurisdiction to order the writ of mandamus prayed for, the
judgment of the Court of Appeals reversing the judgment of that
court must be
"Sec. 24b. CLASSIFICATION OF OFFICERS. -- Immediately upon the
passage of this Act, and in September of 1921 and every year
thereafter, the President shall convene a board of not less than
five general officers, which shall arrange all officers in two
Classes, namely: Class A, consisting of officers who should be
retained in the service, and Class B, of officers who should not be
retained in the service. Until otherwise finally classified, all
officers shall be regarded as belonging to Class A, and shall be
promoted according to the provisions of this Act to fill any
vacanices which may occur prior to such final Classification. No
officer shall be finally classified in Class B until he shall have
been given an opportunity to appear before a court of inquiry. In
such court of inquiry, he shall be furnished with a full copy of
the official records upon which the proposed classification is
based, and shall be given an opportunity to present testimony in
his own behalf. The record of such court of inquiry shall be
forwarded to the final classification board for reconsideration of
the case, and after such consideration, the finding of said
classification board shall be final, and not subject to further
revision except upon the order of the President. Whenever an
officer is placed in Class B, a board of not less than three
officers shall be convened to determine whether such classification
is due to his neglect, misconduct or avoidable habits. If the
finding is affirmative, he shall be discharged from the Army; if
negative, he shall be placed on the unlimited retired list with pay
at the rate of 2 1/2 per centum of his active pay multiplied by the
number of complete years of commissioned service, or service which
under the provisions of this Act is counted as its equivalent,
unless his total commissioned service or equivalent service shall
be less than ten years, in which case he shall be honorably
discharged with one year's pay. The maximum retired pay of an
officer retired under the provisions of this § prior to January 1,
1924, shall be 74 per centum of active pay, and of one retired on
or after that date, 60 per centum. If an officer is thus retired
before the completion of thirty years' commissioned service, he may
be employed on such active duty as the Secretary of War considers
him capable of performing until he has completed thirty years'
commissioned service. The board convened upon the passage of this
Act shall also report the names of those second lieutenants of the
Quartermaster Corps who were commissioned under the provisions of §
9 of the Act of June 3, 1916, who are not qualified for further
promotion. The officers so reported shall continue in the grade of
second lieutenant for the remainder of their service and the others
shall be placed upon the promotion list according to their
commissioned service, as hereinbefore provide."