
    HORACE E. MULLAN v. THE UNITED STATES.
    [No. 14603.
    Decided January 3, 1888.
    
      On the Proofs.
    
    An officer of tlie Navy, in command of the Ashuelot, attached to the squadron on the Asiatic station, is tried and convicted by a court-martial consisting of seven members, five being juijjor 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.”
    
    I. The Revised Statutes (§ 1624) direct how a court-martial shall be composed, but authorize a departure from that general direction when it can not be followed without injury to the service.
    II. The limitation with reference both to the numbers and rank of the members ol a general court-martial is discretionary with the appointing jiower.
    
      The Reporters’ statement-of the case:
    The following are the facts of the case as found by the court:
    I. February 8,1875, the claimant was commissioned a commander in the United States Navy, and served therein until July 6,1883.
    II. February 18, 1875, he was in command of the United States steamer Ashuelot, attached to the Asiatic squadron, under the command of Rear-Admiral Glitz. On the morning of that day the steamer ran upon a rock and was lost with eleven of the crew.
    
      III. March 16, 1883, the Navy Department received a message by cable from Eear-Admiral Clitz, sent from Hong-Kong, as follows:
    “ Inquiry finished; Mullan culpable; others exonerated; court-martial impossible; directions requested.”
    March 19,1883, in response to this telegram, orders were issued by the Navy Department to Captains William P. McCann and Joseph N. Miller and Master Samuel C. Lemly to proceed to Yokohama, Japan, and report to the commander-in-chief of the Asiatic station.; These orders were issued to enable the commander-in-chief to organize a court-martial for the trial of the claimant, because of the loss of the Ashuelot.
    IY. April 30, 1883, Rear-Admiral Pierce Crosby, who had assumed command of the United States squadron on the Asiatic station, ordered a general court-martial to convene on board the flag-ship Richmond at Hong-Kong, at 10 o’clock a m., May 2-, 1883, for the trial of the claimant. Said court was composed of the following officers, any five of whom were empowered to act: Capt. William P. McCann, Capt. J. N. Miller, Lieut. Commander G-. B. D. Glidden, Lieut. Commander B. S. Houston, Lieut. J. J. Hunker,- Lieut. S. M. Ackley, and Lieut. B. Noyes. In the order convening the court, Rear-Admiral Crosby stated that “ no other officers than those named can be assembled without manifest injury to the service.”
    V. When the court convened the claimant filed a protest as follows:
    “ I object to and protest against the organization of the court as a whole, and for the following reasons : In case of an officer to be tried by a court-martial, article 39 of the articles for the government of the United States Navy provides that in no case where-it can be avoided without injury to the service shall more than one-half, exclusive of the president, be junior to the officer to be tried. In time of war it might frequently occur that officers, particularly those of the higher grades, could not be detached from duty and ordered as members of a court without great injury to the service; but- in time of peace, when large numbers of officers are either off duty or performing such duty as for the necessary time might bo done by a subordinate, no such an emergency can possibly arise. It can not be claimed by any one that a sufficient number of officers senior to myself could not have been ordered upon this court without injury to the service. I have no desire to re-fleet on any individual member of this court; but since my professional reputation, my personal character, and the prosperity and happiness of my family are at stake, I must emphatically protest against being tried by a court five of whose seven members are junior to myself.”
    VI. At the time of the organization, of the said court there were twelve naval officers superior in rank to the claimant on waiting orders in the city of Washington, D. G. Medical Inspector Stephen D. Kennedy, of the Navy, was tried in November, 1883, on board the Hartford, at Panama, by a court, composed of two commodores, two captains, one medical director, one medical inspector, and one commander. All these officers were detailed for that special duty by the Navy Department, and were directed to proceed from New York to Panama; this detail being deemed necessary by the Department in view of the fact, of which it wras informed by Rear-Admiral Hughes, that there were not in the squadron under his command the requisite number of officers of sufficient rank to organize a court-martial for the trial of Medical Inspector Kennedy.
    Found, at request of the claimant.
    VII. Upon the trial claimant was charged with — (1) Drunkenness on duty. (2) Improperly hazarding the vessel under his command, in consequence of which she was run upon a rock and lost. (3)- Neglect of duty. The claimant was found guilty and sentenced to dismissal from the service. J uly 6, 1883, the sentence was approved and confirmed by the President.
    VIII. December, 1883, the President nominated to the Senate Lieut. Commander Francis M. Green to be a commander in the Navy from the 7th of July, 1883, vice Commanders T. H. Eastman, retired, and HoraceE. Mullan, dismissed. January 18, 1884, the Senate' advised and consented to the appointment of Lieut. Francis M. Green to be a commander in the Navy from the 7th of July, 1883, vice Commander T.,11. Eastman, retired, and Horace E. Mullan, dismissed, and on the 23d of January, 1884, the President commissioned the said Lieut. Commander Francis M. Green to be a commander in the Navy from the 7th of July, 1883.
    
      Mr. John Goode and Mr. Eppa Ilunton for the claimant :
    If the court was so organized as to be illegal, it did not acquire jurisdiction of the person of the accused or the subject-matter. There must be jurisdiction to hear and determine the cause and to pronounce sentence. Every act of a court beyond its jurisdiction is null and void. {Exparte Alvin E. Beed, S. C., 10th Otto, and cases there cited.)
    The record in this case shows that the claimant was tried by a court consisting of seven members, five of whom were his juniors in rank. It shows that a legal court consisting of not less than five commissioned officers, more than one-half of whom, exclusive of the presideut, were senior to the accused, could have been convened without injury to the service, and the illegal court which was convened could have been avoided without injury to the service.
    We insist that the statutory conditions as to the constitution of the court have not been, observed in this case, and that the said court was not authorized by law to pronounce its judgment.
    In the second place, we submit that the defects in the composition of the court which have been pointed out have not been cured by the action of the President in approving’ its sentence of dismissal. If the court was illegal, and all its acts were legal nullities, the mere act of approval by the President •of the record in such a case fails to clothe the court mine pro tunc with jurisdiction, or to stamp its findings with legality. (Dynes v. Hoover, 20 How., 65.)
    In the third place, we submit that the appointment of Francis M. Green, with the advice and consent of the Senate, to fill the office held by the claimant did not operate in law to supersede the latter, and that the claimant, by virtue of the appointment of the said Green, did not cease to be an officer in the Navy from and after the date of such appointment. We maintain that the President had no power to dismiss the claimant from the service by appointing another in his place, with the advice and consent of the Senate. Under the Constitution and laws the power of appointment to office is one thing; the power of removal from office is quite another thing. The Constitution is silent with respect to the power of removal from office where the tenure is not fixed. (Ex parte Hen-nen, 13 Peters, 257; Lyman O. Perkins v. The United States, 20 ■O. Gis. B., 428.
    It being settled that the Senate can not participate in the removal of officers appointed with the advice and consent of the Senate, aucl that the power of removal is vested in the President alone in the absence of constitutional provision or statutory regulation, Congress thought proper on the 13th of July, 1866, to adopt a statutory regulation curtailing the power of the President and providing that no officer in the military or naval service shall in time of peace be dismissed from the service except upon and in pursuance of the sentence of a court-martial to that effect or in commutation thereof. No doubt could be entertained, we think, as to the soundness of our position but for the decision of the Supreme Court in the case of Charles M. Blalce v. The United States (103 D. S., 462.) But the court will observe that the Supreme Court entertained doubts as to the correctness of this decision. They say that the “ question is not free from difficulty.” They admit that the fifth section of the act of July 13, 1866, is susceptible of the construction for for which we contend.
    The record shows that the proceedings of the court reached the Secretary of the Navy on the 5th day of July, 1883; that on the 6th day of July, 1883, the same were laid before the President for his action, and that Mullan was officially notified on the 6th day of July, 1883, of the President’s approval of the sentence of the court-martial dismissing him from the Navy. It thus appears that Mullan was dismissed from the Navy, not by the nomination of another and his appointment with the advice and consent of the Senate, but by the action of the President approving the sentence of an illegal court-martial. That was the initial wrong. But for that wrong the name of Mr. Green would not have been sent to the Senate. The subsequent action of the President and the Senate was based upon the action of the President in approving the sentence of the illegal court-martial. If that action was illegal, the subsequent action based upon it was illegal also.
    
      Mr. Leiois Cochran (with whom was Mr. Assistant Alto'niey-General Howard) for the defendants:
    Title cannot be determined in action for salary or fees. State to use of Bradshaw v. Sherwood et al., 42 Mo., 179; Hunton v. Chandler, 45 Mo., 452.)
    It is insisted that Rear-Admiral Crosby, having had authority to convene the court-martial and select its members, and having determined and stated, under sectiou 142 of the Orders, Begulations, and Instructions for the Administration of Law and Justice in the United States Navy, in the order convening said court-martial, that no other officers than those named could be assembled without manifest injury to the service, the said court-martial proceedings were in all respects regular and in strict accordance with law.
    The power to convene the court and select its members carries with it the determination of thepersonnel of the court. The appointing power is clearly charged with the duty of determining the necessities of the service. Such determination having been made, and as many .officers senior in rank to the officer to be tried having been selected, as in the judgment of the appointing power could be assembled without manifest injury to the service, such determination and selection is final and not reviewable.
   Scofield, J.,

delivered the opinion of the court:

The claimant was an officer of the Navy with the rank of commander.

February 18, 1883, he was in command of the United States steamer Ashuelot, attached to the squadron on the Asiatic station. On that day the steamer was run upon a rock and lost with eleven of the crew. The disaster was attributed to the misconduct of the claimant.

A court-martial was convened by the commander-in-chief at the station, before which the claimant was arraigned, tried, convicted, and sentenced to dismissal from the service. July 6,1883, the sentence was confirmed by the President.

The court-martial consisted of seven members, five of whom were junior in rank to the claimant. In the order convening the court-martial, it is declared that “ no other officers than those named can be assembled without manifest injury to the service.” At the trial a protest against the organization of the court with a majority of the members junior to the claimant was filed by him.

For this reason the claimant now alleges that the organization of the court-martial was illegal and all its proceedings void; that, therefore, he is still a commander in the Navy, and entitled to pay from July 6, 1883.

The court-martial was convened under the provisions of section 1624 of the Revised Statutes, which are as follows:

“Abt. 38. G-eneral courts-martial may be convened by the President, the Secretary of the Navy, or the commander-in-chic f of a fleet or squadron. * * *
“Am1. 39. A general court-martial shall consist of not more than thirteen nor less than five commissioned officers as members ; and as many officers, not exceeding thirteen, as can be convened without injury to the service, shall be summoned on every such court. But in no case, where it can be avoided without injury to the service, shall more than one-half, exclusive of the president, be junior to the officer to be tried. The senior officer shall always preside and the others shall take place according to their rank.”

This statute directs how a court-martial shall be composed, but authorizes a departure from that general direction when it can not be followed without injury to the service.

It is not denied that the question of possible injury to the service, by a different composition of the court, was considered and passed upon by the officer authorized so to do; but it is contended that he erred in his conclusion, and that this court has power to correct the error by setting aside all the proceedings thereunder as null and void.

Section 143 of the Orders, Regulations, and Instructions for the Administration of Law and Justice in the United States Navy, is as follows:

“It is to be understood, however, that the limitation with reference both to the number and rank of the members of a general court-martial is discretionary with the appointing power, and that his decision thereupon is conclusive.”

This regulation, in the opinion of the court, has given to the statute the proper construction, and is in harmony with the decision of the Supreme Court in Martin v. Mott (12 Wheaton, 19).

In this case the act of Congress of February 28, 1797, had provided that “ whenever the United States shall be * * * in imminent danger of invasion * * * it shall be lawful for the President,” etc. This act does not in terms provide that the contingency shall be decided by the President, nor that his decision shall be conclusive of the fact; but the Supreme Court held that “ the authority to decide whether the exigency had arisen belonged exclusively tq the President, and that bis decision was conclusive upon all other persons.” In the same case, the court lays down the following general rule:

u Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts.”

This court has repeatedly held that under the Act July 4, 1864 (13 Stat. L., 394), which authorizes u the commanding officer of an army or detachment” to purchase supplies without advertisement when an emergency exists, that such officer became the sole judge of when the emergency existed.” (Baker & Folsom’s Case, 3 C. Cls. R., 343; Emory’s Case, 4 id., 386; Cobb’s Case, 18 id., 514.)

Other questions were raised by the defendants and elaborately discussed by counsel on both sides, but as the court holds that the court-martial was lawfully organized and the claimant legally dismissed from the service it is unnecessary to consider them.

The petition of the claimant will be dismissed.  