
    JOSEPH A. SMITH v. THE UNITED STATES.
    [No. 16712.
    Decided January 19, 1891.]
    
      On the Proofs.
    
    The Paymaster-General of the Navy, being Chief ofthe Bureau of Pro visions and Clothing, is tried by court-martial and sentenced to be dismissed from the position of chief, and to be suspended from rank and duty as pay inspector, he being a paymaster with the grade of inspector.
    I.The Paymaster-General of the Navy must be at the time of his appointment an officer in the Navy. By the appointment, he merely secures higher rank, title, and pay. Revised Statutes, §§ 425, 471, 1473, 1565.
    II.Rank, title, pay, and retirement from service are the judicia of military office.
    III.A naval court-martial has jurisdiction to try the Paymaster-General of the Navy. Though chief of a bureau in the Navy Department, he is not a civil officer.
    
      The Reporters’ statements of tbe case:
    Tbe following are tbe facts of this case as found by tbe court:
    I. The claimant entered into tbe naval service of tbe United States on tbe 8tb of October, 1861; was commissioned pay inspector on tbe 15th of May, 1879; and on tbe 27th day of June, 1882, was appointed by tbe President and confirmed by tbe Senate “ Chief of tbe Bureau of Provisions and Clothing, and Paymaster-General in tbe Department of tbe Navy, with tbe relative rank of commodore.”
    II. At a general court-martial, convened by order of tbe Secretary of the Navy, at navy-yard, Washington, D. C., on the8th of July, 1885, of which Commodore Semmes, U.S. Navy, was president, was arraigned and tried Paymaster-General Joseph A. Smith, Chief of tbe Bureau of Provisions and Clothing in tbe Department of tbe Navy on tbe following charges:
    “ Charge 1. ‘ Scandalous conduct, tending to the destruction of good morals.’ ”
    
      “ Charge 2. Culpable inefficiency in tbe discharge of duty.”
    
      He was found by the court-martial guilty of both charges, and sentenced as follows:
    “To be dismissed from the position of Chief of the Bureau of Provisions and Clothing in the Department of the Navy; to be suspended from rank and duty as pay inspector, on furlough . pay, for one year, and to retain his present number in his grade during that period.”
    The sentence was approved by the Secretary of the Navy, upon the recommendation of the Judge-Advocate-G-eneral of the Navy, and, January 7, 1880, confirmed by the President,
    III. There was no nomination by the President to the Senate of a successor to the said Smith in the office of Paymaster-General until after the 27th day of June, 1886.
    IY. January 29, 1886, the claimant was duly notified of the confirmation, and thereafter was paid at the rate of $1,500 a year.
    The four years’ term for which he had been appointed Paymaster-General expired June 27, 1886. If he had served out his term he would have been entitled to $ 1,438.36, in addition to the amount received.
    Hr. George 8. Boutwell for the claimant:
    1. At the time when the sentence of the court-martial was rendered Smith was a pay inspector in the Navy and an officer of the Navy, and as such officer he was responsible for all his acts, whether the acts were done in his capacity as such officer or whether they were acts done in his capacity as a citizen or when he was engaged in official duties outside of the Navy; but it is contended by the claimant that the jurisdiction of the court in the sentence that it might render lawfully, was limited to the deprivation of some right, privilege, immunity, or commission arising from or appertaining to his office in the Navy. {Smith v. Whitney and others, 116, U. S. R., 167; ex parte Seed, 100, 13, Rev. Stab., § 1624; articles for the government of the Navy, 35 to 54.)
    2. In the chapter on the organization of the Navy (Rev. Stat., § 1376) the office of Paymaster-General is nob mentioned.
    3. By the Constitution the President is made Commauder-in-Chief of the Army and the Navy, and the Department of the Navy is an agency by which the President executes his authority over the Navy. (Stat. L., 1, 553.)
    
      4. The most recent act for the organization of the Navy Department was passed July 5, 1862 (Stat. L., 12, 510). That act provided for a “ Chief of the Bureau of Provisions and Clothing, who shall be selected from the list of paymasters in the Navy of not less than ten years’ standing.” His appointment was to be made by and with the advice and consent of the Senate, and he was to hold his office for the term of four years. (Stat. L., 1.) These provisions reappear in the Revised Statutes (Title X, p. 70).
    The claimant relies upon these authorities in support of the position that the office of Paymaster General is an office in the Department of the Navy as an executive department of the Government; that it was not within the jurisdiction of the court-martial; that so much of the sentence of the court-martial as related to that office was void; that the confirmation by the President gave no validity to that part of the sentence, and consequently that Smith was entitled to the office of Paymaster-General and to the emoluments of the office until the expiration of the term for which he had been appointed, namely, until the 27th day of June, 1886.
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney - General Cotton) for the defendants:
    The pay of the chief of bureau is that of a naval officer; it may exceed but it can not be less than that of commodore. In the present case a pay inspector holding the relative rank of a commodore received the pay of a commodore. His position asPaymaster-General did not exonerate him from trial by court-martial for offenses committed as Paymaster-General (Smith v. Whitney, 116 U. S. R., 177), and the court-martial had the power to forfeit pay due or to become due (Williams's Case, 24 C. Cls. R., 315). In this view it is of no importance iu the case at bar as to whether the sentence of the court-martial would in effect deprive the plaintiff of the position of Paymaster-General or not. He was suspended from rank and duty on furlough pay for one year. This fixes the amount of fine as clearly as if definitely and specially stated, and is clearly within the authority of the court-martial.. It was within the power of a court-martial to dismiss plaintiff from the service, and this for an offense committed in his capacity as Paymaster-General and Chief of the Bureau of Clothing and Provisions. He held the position of Paymaster-General by virtue of the fact that he was on the list of paymasters of 10 years’ standing.
    Having under the unquestioned powers of the court-martial been “suspended from rank or duty as a pay inspector,” he was no longer eligible for the position of Paymaster-General.,
    But the greater includes the less. If a court-martial had the power to punish claimant in his position as pay inspector by dismissing him from the service, it had the power to inflict the less punishment of dismissing him from the position of Paymaster-General. The proceedings of the court-martial must be held valid when questioned in a collateral way. (Keyes vs. U. 8., U. S. R., 340).
    The approval by the President of the proceedings of the court-martial was in effect his removal by the President from his position as chief of bureau.
   Scofield, J.,

delivered the opinion of the court:

Has a Navy court-martial jurisdiction to try the Paymaster-General of the Navy ? That question involves another. Is the Paymaster-General a military or civil officer? If the former, the court-martial, undoubtedly, has this jurisdiction; if the latter, it has not. The answer to these questions settles this case.

The suit grows out of the following facts:

June 27, 1882, the claimant was nominated by the President and confirmed by the Senate Chief of the Bureau of Provision and Clothing, and Paymaster-General in the Department of the Navy with the relative rank of commodore. At that time he was a paymaster in the Navy with the grade of pay inspector.

June 25,1885, a court-martial was convened by the Secretary of the Navy for “ the trial of Paymaster General Joseph A. Smith, United States Navy.”

The court-martial convened July 8, 1885, and after a trial, sentenced the claimant “to be dismissed from the position of Chief of the Bureau of Provisions and Clothing in the Department of the Navy, and to be suspended from rank and duty as pay inspector, on furlough pay, for one year, and to retain his present number in his grade during that period.”

January 7, 188G, the sentence was confirmed by the President, and January 29,1886, the claimant was so notified, and thereafter he was paid at the rate of $1,500 a year.

If so much of the sentence as undertakes to dismiss the claimant from his office of Paymaster-General is void, for want of jurisdiction, there would now be due him, for salary withheld, $1,438.36.

The character of this office must bedetermined by the statutes.

The Eevised Statutes provide as follows:

“Sec. 425. That he shall be appointed from the list of paymasters of the Navy of not less than ten years’ standing.
“Sec. 471. That he shall havethe relative rank of commodore while holding said position * * * and the title of Paymaster-General.
“ Sec. 1565. The pay of chiefs of bureau in the Navy Department shall be the highest pay of the grade to which they belong, but not below that of commodore.
“Sec. 1473. That officers who have been,or shall be, retired from the position of chiefs of the Bureau of Medicine and Surgery, of Provisions and Clothing, etc., shall have the relative rank of commodore.”

From these references it appears that the Paymaster-General must have been an experienced officer in the Navy at the time of his appointment to the higher position.

That by the new appointment he secures a higher rank in the Navy, ahigher,Navy title, and higher Navy pay.

That if he arrives to the age of 62 (the compulsory retiring age of Navy officers) before the expiration of his term as Paymaster-General, he is placed upon the retired list, with the rank and pay of his office.

Rank, title, pay, and retirement are the indicia of military, not civil, office.

On the other hand, we find no statute that directly or indirectly classes these bureau chiefs as civilians, and it does not appear that they have ever been so regarded in the Department. On the contrary, a military uniform corresponding to the rank of commodore has been prescribed for them by Navy Regulations and in all respects they have received the consideration due to their high military or naval rank.

Giving them a dual character (civil and military) might not only lead to confusion and inconvenience in the Department, but deprive tbe chiefs themselves of some advantages secured to them by the opposite practice.

It would have been quite satisfactory to the court to have so shaped its judgments that the case might be heard in the Supreme Court, but understanding that that tribunal does not favor pro forma judgments, we act upon our own conviction and dismiss the case.  