
    HORACE E. MULLEN v. THE UNITED STATES.
    [23 C. Cls. R., 34; 140 U. S. R., 240.]
    
      On the claimant’s Appeal.
    
    An officer of the Navy, in command of the Ashuelot, attached to the squadron on the Asiatic station, is tried and convicted by a court-martial consisting of 7 members, 5 being junior to him. In the order convening the court it is declared that “no other officers than those named can he assembled without manifest injury to the service.”
    
    The court below decides :
    (1) The Revised Statutes ($ 1624) direct how a court-martial shall he composed, but authorize a departure from that general direction when it can not be followed without injury to the service.
    (2) The limitation with reference both to the numbers and rank of the members of a general court-martial is discretionary with the appointing
    power.
    The decision of the court below is affirmed upon the same ground, and upon the further ground that the President has power, by and with the advice and consent of the Senate, to displace an officer in the Army or Navy by the appointment of another person in his place. But the right of the officer to pay until the appointment of his successor does not seem to have been considered in connection with the second ground.
   Mr. Justice Harlan

delivered the opinion of the Supreme Court May 11, 1891.  