UNITED STATES v. BROWN

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Docket Number

Nos. 283, 284.

Attorney(S)

Mr. Assistant Attorney General Van Orsdel and Mr. Franklin W. Collins, for the United States, submitted: In the case at bar the officer, having been duly commissioned as an officer of a regiment of United States Volunteers, is prima facie a volunteer officer, and as such is eligible to sit at the trial of an officer or enlisted man of the volunteer forces. The language used in the statute is clear, and that used in the permissive enactments of 1861 and 1898, authorizing officers of the Army to accept appointments in the volunteer forces, is equally clear. It must be assumed that Congress was familiar with the long-established administrative practice of the War Department in the execution of the 97th article of the code of 1806 and in the similar execution which was given to the 64th, 77th and 78th articles of the code of 1878. In the absence of restrictive language, the language used in the permissive act of May 28, 1898, should be given its ordinary meaning and the officers serving in volunteer regiments should be regarded as having the same rights and privileges and as being charged with the same duties and obligations as other officers of the volunteer forces raised by Congress for the prosecution of the war with Spain. In this case the officer who sat as a member of the court-martial held a volunteer commission, and therefore conformed to the requirements of the statute in that regard. In this case there has been long-continued departmental construction of the statute in question, and under it the rights of a large number of officers who have been tried by courts-martial similarly constituted have been determined, and the construction placed upon this statute by the War Department, continuing as it has for a period of nearly half a century, has acquired the force of law, and this construction should not be lightly overturned by the court unless the strongest and most cogent reasons are shown therefor. Rogers v. Goodwin, 2 Mass. 476; Brown v. United States, 113 U.S. 568, 571; Edwards v. Darby, 12 Wheat. 206; United States v. Hill, 120 U.S. 169, 182; United States v. Philbrick, 120 U.S. 52-59; United States v. Johnson, 124 U.S. 237; Robertson v. Downing, 127 U.S. 607-613. If the decision of the Court of Claims is permitted to stand, it will invalidate a vast number of sentences imposed by courts-martial similarly constituted, during both the Civil War and the war with Spain, thus involving the unsettling of matters of the most far-reaching importance, which up to this time have been regarded by the Government and all parties concerned as fully and finally adjudicated and settled. It will be productive of unspeakable confusion and chaos, and serve no good purpose. Mr. Lorenzo A. Bailey, Mr. W.W. Dudley and Mr. L.T. Michener, for Lewis E. Brown, submitted: Under the 77th Article of War the court-martial was wholly without jurisdiction to try the claimant, and its sentence, and all its proceedings in his case, are utterly null and void. The failure of the claimant to object to Colonel Grubbs was not a waiver of the right to object nor was it an implied consent. Consent will not be implied as against one who is ignorant of the facts, and, furthermore, consent will not give validity to what is contrary to law. In McClaughry v. Deming, 186 U.S. 49, the dismissal was held void under Article 77, although the accused expressly stated to the court-martial that he had no objection to being tried by any member thereof, he well knowing at that time that each member of the court was a regular army officer, and he thereafter pleaded guilty to the charges against him. Article 77 is prohibitive. The prohibition cannot be evaded by means of volunteer commissions carried by those who are thus in most positive terms declared to be incompetent to sit on a court for the trial of volunteers. A conclusive argument for the application of Article 77 to the present case and against the Government's contention is found in the reason for the enactment of Article 77, as stated in McClaughry v. Deming, 186 U.S. 49; S.C., 113 Fed.Rep. 639.

Judges

Oliver Wendell Holmes

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Smart Summary

Factual and Procedural Background

This case is a claim for pay by Lewis E. Brown for service as first lieutenant of United States Volunteers after February 17, 1899. On that date the claimant was sentenced by a court-martial to be dismissed from the service. The court-martial consisted of five members (the minimum number required by Articles 75 and 79 of the Articles of War, Rev. Stats. § 1342), and its president was an officer of the Regular Army. The Court of Claims held that, because of Article 77 of the Articles of War (which declares that "officers of the Regular Army shall not be competent to sit on courts-martial to try the officers or soldiers of other forces, except as provided in Article 78"), the proceedings were void and awarded the claimant pay through the final muster out of his regiment on May 25, 1899, including two months' extra pay under the Act of January 12, 1899. The United States appealed, and the present opinion is the Supreme Court's disposition of the cross appeals.

Legal Issues Presented

Whether the presence of a Regular Army officer as president of a court-martial trying a volunteer officer rendered the court's proceedings void under Article 77 of the Articles of War.
Whether an officer of the Regular Army who had been granted indefinite leave of absence to accept a volunteer commission should be treated as a volunteer officer for purposes of competency to sit on a court-martial.
Whether, given a void sentence of dismissal, the claimant was entitled to pay through the muster out of his regiment and to statutory extra pay (including two months' extra pay for service outside the United States), and whether a refusal to grant an honorable discharge after the fact amounted to active retention in the service entitling him to additional pay.

Arguments of the Parties

United States' Arguments

The officer who sat as a member and president of the court-martial had been duly commissioned as an officer of a regiment of United States Volunteers and was prima facie a volunteer officer, and therefore eligible to sit on the trial of a volunteer officer.
The language of the permissive acts of 1861 and 1898 (authorizing Regular Army officers to accept volunteer appointments) and the administrative practice of the War Department support treating an officer on indefinite leave with a volunteer commission as a volunteer officer for such purposes.
There was a long-continued departmental construction and administrative practice under earlier articles of war (and similar execution of the code provisions) which senior departmental construction and precedent should uphold; overturning that practice would unsettle many court-martial sentences imposed under similar compositions of courts.
The government cited a number of decisions (e.g., Rogers v. Goodwin; Brown v. United States; Edwards v. Darby; United States v. Hill; United States v. Philbrick; United States v. Johnson; Robertson v. Downing) in support of deference to the departmental construction and long-established practice.

Claimant (Lewis E. Brown)'s Arguments

Under Article 77 of War, the court-martial was wholly without jurisdiction to try the claimant because an officer of the Regular Army was not competent to sit on a court for the trial of volunteers, so the sentence and all proceedings were null and void.
The claimant's failure to object at trial to Colonel Grubbs' presence did not constitute a waiver or implied consent, particularly where ignorance of the facts prevents imputation of consent, and consent cannot validate acts contrary to law.
McClaughry v. Deming was relied on to support the proposition that Article 77 makes such sentences void even when the accused expressly stated he had no objection to being tried by members who were Regular Army officers.
Article 77 is prohibitory and cannot be evaded by the device of volunteer commissions carried by Regular Army officers.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McClaughry v. Deming, 186 U.S. 49	Cited for the principle that a sentence against a volunteer officer by a court composed wholly of Regular Army officers is void under Article 77.	The Court relied on McClaughry as the governing precedent establishing that such a court's sentence is void, and applied that principle to conclude the proceedings in the present case were void because, without the Regular Army president, there would have been no court.
Rogers v. Goodwin, 2 Mass. 476	Cited in the government's brief as part of authorities supporting deference to long-continued administrative construction.	The government invoked this case as part of a group of authorities to argue for upholding the War Department's longstanding practice; the Court did not accept that practice as overriding the plain statutory prohibition of Article 77.
Brown v. United States, 113 U.S. 568	Cited in the government's brief in support of deference to departmental construction and established practice.	Used by the government to argue against disturbing long-continued practice; the Court nonetheless held that Article 77's plain words control and rejected the argument that prior administrative practice could validate the court's composition.
Edwards v. Darby, 12 Wheat. 206	Cited by the government as one of the authorities supporting deference to departmental construction.	The government relied on it for deference; the Court adhered to the statutory text of Article 77 and did not allow the prior construction to overcome the express prohibition.
United States v. Hill, 120 U.S. 169	Cited by the government as authority relevant to the force of departmental construction.	The Court noted the government's citation but applied Article 77 strictly, not allowing the cited authorities to change the statutory command.
United States v. Philbrick, 120 U.S. 52	Cited by the government for the general proposition that long-continued departmental construction can have weight.	The Court acknowledged the citation but held that the explicit statutory prohibition in Article 77 made such prior constructions inapplicable to validate the court-martial's composition here.
United States v. Johnson, 124 U.S. 237	Cited by the government in support of deference to administrative practice.	The Court did not accept that reliance as sufficient to avoid the clear command of Article 77 and therefore did not apply it to uphold the proceedings.
Robertson v. Downing, 127 U.S. 607	Cited by the government as part of authorities supporting deference to longstanding departmental construction.	The Court rejected the argument that such authorities could override the plain prohibition of Article 77 and held the court-martial proceedings to be void.

Court's Reasoning and Analysis

The Court framed the dispute as a statutory-interpretation question turning on Article 77 of the Articles of War, which provides that "officers of the Regular Army shall not be competent to sit on courts-martial to try the officers or soldiers of other forces, except as provided in Article 78." The key factual point was that the court-martial that sentenced the claimant had five members (the statutory minimum) and its president was an officer of the Regular Army.

The Court proceeded in the following analytical steps, basing its reasoning solely on the text and the precedents it deemed controlling:

It identified McClaughry v. Deming as a controlling precedent establishing that a sentence against a volunteer officer by a court composed wholly of Regular Army officers is void. That precedent was applied here because, with the Regular Army president excluded as incompetent under Article 77, the court would not have had the required minimum membership — meaning there was effectively no valid court.
The government argued that the Regular Army officer had indefinite leave to accept a volunteer commission and was therefore a volunteer officer for purposes of sitting on the court, and it urged deference to a long-standing War Department practice and to permissive acts of Congress (Acts of April 22, 1898 and May 28, 1898). The Court acknowledged that such an argument might have weight under earlier and less explicit statutory formulations (for example, when earlier statutes required courts "should be composed entirely of militia officers"), but found the present statutory language (Article 77 as adopted in the Revised Statutes) to be an express, peremptory prohibition.
Because Article 77's words are plain and peremptory, the Court concluded they must be obeyed; a prior administrative practice cannot overcome an explicit statutory restriction. The Court therefore found the proceedings void for lack of a competent court.
Turning to remedies and statutory entitlements, the Court agreed with the Court of Claims that the claimant was entitled to recover pay up to the date his regiment was mustered out (May 25, 1899) and to the two months' extra pay for service outside the United States under the Act of January 12, 1899. The Court explained that a refusal to grant an honorable discharge on the ground that the applicant had already been dishonorably discharged does not amount to active retention in the service that would extend pay beyond muster out.
The Court denied the claimant one month's extra pay for service within the United States and denied the claim for travel under the Act of May 26, 1900, because the claimant had been discharged before that act was passed.

Holding and Implications

Core Ruling: The Court held that Article 77's prohibition is peremptory and that an officer of the Regular Army, even if on indefinite leave to accept a volunteer commission, is not competent to sit on a court-martial to try a volunteer officer; because the court in question lacked a sufficient number of competent members, its proceedings were void. The Court affirmed the judgment of the Court of Claims.

Implications:

Direct effect on the parties: The claimant was entitled to recover pay through the muster out of his regiment on May 25, 1899, and to two months' extra pay for service outside the United States, but not to one month's extra pay for service within the United States nor to travel allowances under an act passed after his discharge. The sentence of dismissal was void.
Broader legal implication: The decision enforces a strict textual application of Article 77 and rejects the argument that long-continued departmental construction or administrative practice can validate court-martial proceedings that are expressly prohibited by statute. The opinion notes the Court's unwillingness to allow prior administrative practice to override an explicit statutory prohibition.
No new precedent beyond applying Article 77 was created; the Court relied on existing precedent (McClaughry v. Deming) and the plain words of the statute to reach its result.

Disposition: Judgment affirmed.

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UNITED STATES v. BROWN. BROWN

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 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.

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. Stats. § 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 or 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 C. Cl. 275; ibid. 575. There are cross appeals to this court.

The answer of the United States to the foregoing argument 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 latter 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 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 practicable 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.