
    THE UNITED STATES v. LEWIS E. BROWN. LEWIS E. BROWN v. THE UNITED STATES.
    [41 C. Cls. R., 275; 206 U. S. R., 240.]
    
      On both parties' Appeals.
    
    An officer on duty in Cuba during the Spanish war is court-martialed upon the charge of conduct unbecoming an officer and a gentleman and found not guilty. The commanding officer remands the record for further consideration. The court immediately reverses its former action and, without additional evidence of any kind, -finds the officer guilty and sentences him to be dishonorably dismissed. The court is composed of five members (the minimum number), one of whom is an officer in the Regular Army, though serving as lieutenant-colonel of volunteers, and the officer on trial is in the volunteer service.
    The court below decides:
    1. The Articles of War (77) provide that “officers of the Regular Army shall not he competent to sit on courts-martial to try the officers or soldiers of other forces.’’ The language is too imperative to admit of evasion. Such an officer is incompetent notwithstanding he may be serving temporarily as an officer in the volunteer service.
    2. Where the court is of the minimum number, the incompeteney of one member renders the proceedings void ah initio.
    
    S. Where an officer of volunteers was illegally dismissed from the Army on the sentence of a court-martial which was absolutely void, he was not legally removed from his office and can recover his pay, including two months’ extra pay on muster out of his regiment. But if the office was that of lieutenant in a volunteer regiment, it did not exist after the muster out of the regiment.
    The decision of the court below is affirmed on the same grounds.
    May 13, 1907.
   Mr. Justice Holmes

delivered the opinion of the Supreme Court  