The prohibition in the 77th Article of War against officers of
the regular army serving on courts-martial to try soldiers and
officers of other forces is peremptory, and, notwithstanding the
contrary construction of former articles on the same subject, an
officer of the regular army, although on indefinite leave of
absence, to enable him to accept a volunteer commission, is not
competent to sit on a court-martial to try a volunteer officer, and
if without him there would have been an insufficient number, there
is no court, and the sentence of dismissal is void, and in this
case an officer so
Page 206 U. S. 241
sentenced and dismissed was entitled to his pay until the
organization to which he belonged was mustered out. The refusal to
grant an officer so discharged an honorable discharge did not,
under the circumstances, amount to his active retention in the
service and entitle him to pay after the organization to which he
belonged had been discharged.
The facts are stated in the opinion.
Page 206 U. S. 243
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a claim for pay as first lieutenant of United States
Volunteers after February 17, 1899, on which date, by the sentence
of a court-martial, the claimant was dismissed from the service.
The court-martial consisted of five members, the minimum number by
the 75th and 79th Articles of War, Rev.Stat. § 1342, and the
president of the court was an officer in the Regular Army. By
Article 77 "officers of the Regular Army shall not be competent to
sit on courts-martial to try the officers of soldiers of other
forces, except as provided in Article 78." (Article 78 has no
bearing on the case.) On this ground, it is contended that the
proceedings were void. Even if the presence of an incompetent
person as a member would not have made the proceedings invalid in
any event, in this case, without him, there would have been no
court. It has been decided that a sentence against a volunteer
officer by a court composed wholly of regular officers is void, and
this principle is thought to govern the present case.
McClaughry v. Deming, 186 U. S. 49. On
this ground, the Court of Claims decided that the claimant was
entitled to recover up to the time of the final muster out of his
regiment on May 25, 1899, including two months' extra pay under the
Act of January 12, 1899, c. 46, 30 Stat. 784. 41 Ct.Cl. 275, 515.
There are cross-appeals to this Court.
The answer of the United States to the foregoing argument
Page 206 U. S. 244
is that the regular officer had been granted an indefinite leave
of absence from the Regular Army in order to enable him to accept a
commission as lieutenant colonel, Second United States Volunteer
Infantry, and that he was serving in the letter capacity when he
sat upon the court. It is argued that it always has been understood
that, under such circumstances, the position in the volunteer
service alone is to be regarded, that much harm will be done if a
contrary construction should be adopted now, and that the leave
given to appoint regular officers to the volunteer service should
be construed to carry with an appointment the same consequences
that would attach to a commission if held by anyone else. Act of
April 22, 1898, c. 187, § 13, 30 Stat. 363; Act of May 28,
1898, c. 367, § 2, 30 Stat. 421.
This argument would have great force when it was required, as
formerly, only that courts-martial for the trial of militia
officers "should be composed entirely of militia officers." Act of
April 10, 1806, c. 20, art. 97, 2 Stat. 359, 371. If there was a
settled practice of treating these words as satisfied if the
members of the court were militia officers, whether they also held
commissions in the Regular Army or not, we well might hesitate to
overthrow it. But when the express prohibition contained in Article
77 was adopted by the Revised Statutes, it made the former
construction no longer possible. The words of the statute are
peremptory, and must be obeyed. We do not apprehend any serious
consequences, in view of the date of the change. But, whatever the
consequences, we must accept the plain meaning of plain words. It
follows that the proceedings of the court were void, and that it is
not necessary to mention or consider other objections that were
urged.
We are of opinion that the Court of Claims was right also in the
allowances made to the claimant. In 1900, the claimant applied for
an honorable discharge as of May 25, 1899, the date when his
regiment was mustered out, but was refused. Of course, the refusal
of a certificate of honorable discharge on the ground that the
applicant already has been dishonorably discharged
Page 206 U. S. 245
is not an active retention of the officer in the service. The
Act of March 2, 1899, c. 352, § 15, 30 Stat. 977, 981,
provided that the officers and men of the Volunteer Army should be
mustered out, and, under the Act of January 12, 1899, c. 46, 30
Stat. 784, "as far as practicable," the discharge of officers and
men was to take effect at the muster out of the organization to
which they belonged. It would be monstrous to hold that it had been
determined not to be practical to discharge the claimant when his
regiment was mustered out, or that the circumstances of his case,
notwithstanding his technical success, afford a ground for a later
claim. The claimant was allowed two months' extra pay for service
outside the United States. He was not entitled to one month's extra
pay for service within the United States.
See Act of May
26, 1900, c. 586, 31 Stat. 205, 217. Of course, the claim for
travel under the same act, 31 Stat. 210, must fail. The claimant
was discharged before that act was passed.
Judgment affirmed.
MR. JUSTICE MOODY did not sit and took no part in the
decision.