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decided: March 6, 1893.




Author: Fuller

[ 148 U.S. Page 87]

 MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the Court

The claimant's suit was for arrears of pay claimed to be due him as a retired officer of the army of the United States, accruing from December 1, 1883, to November 30, 1890, at the rate of two thousand one hundred dollars per annum, and amounting to the sum of fourteen thousand seven hundred dollars. This claim was met by a finding and sentence of a court-martial, held on the 10th of July, 1872, in the city of Philadelphia, whereby Fletcher was found guilty of "conduct unbecoming an officer and a gentleman," and sentenced to be dismissed the service.

By Article 65 of the act of April 10, 1802, 2 Stat. 359, 367, c. 20, establishing rules and regulations for the government of the armies of the United States, it was provided that "no sentence of a court-martial shall be carried into execution until after the whole proceedings shall have been laid before

[ 148 U.S. Page 88]

     the officer ordering the same, or the officer commanding the troops for the time being; neither shall any sentence of a general court-martial, in time of peace, extending to the loss of life, or the dismission of a commissioned officer, or which shall, either in time of peace or war, respect a general officer, be carried into execution until after the whole proceedings shall have been transmitted to the Secretary of War, to be laid before the President of the United States for his confirmation or disapproval, and orders, in the case." And Article 83 read thus: "Any commissioned officer convicted before a general court-martial of conduct unbecoming an officer and a gentleman, shall be dismissed the service."

These articles, and the provisions of the act of May 29, 1830, 4 Stat. 417, c. 179, amending the 65th Article, were carried forward into Articles 72 and 106 of section 1342 of the Revised Statutes.

Upon the record of the proceedings, findings and sentence of the court-martial which tried Captain Fletcher, the Secretary of War endorsed that: "In conformity with the 65th of the Rules and Articles of War, the proceedings of the general court-martial in the foregoing case have been forwarded to the Secretary of War for the action of the President. The proceedings, findings and sentence are approved, and the sentence will be duly executed."

Was this order void on the ground that it does not appear that the President personally approved the proceedings and directed the execution of the sentence?

By the first section of the act of August 7, 1789, 1 Stat. 49, establishing an Executive Department to be denominated the Department of War, now in substance section 216 of the Revised Statutes, the Secretary of War is to perform and execute such duties as shall be enjoined on, or entrusted to him by the President, relative to the land or naval forces or to such other matters respecting military or naval affairs as the President shall assign to the department, and to conduct the business of the department in such manner as the President shall from time to time order or instruct. And we have held that while the action required of the President in respect

[ 148 U.S. Page 89]

     of the proceedings and sentences of courts-martial is judicial, yet that such action need not be evidenced under his own hand.

Under Article 65, the proceedings of this court-martial were not forwarded to the Secretary of War for individual action by him, but to enable him to lay them before the President, so that the latter might take action as prescribed. There is nothing to indicate that the Secretary of War assumed to confirm or disapprove, or issue orders in the case, and as his endorsement showed that he was proceeding under that article, and that he had received the record for the purpose of being acted on by the President, the approval and the direction for the execution of the sentence were manifestly the acts of the President. The presumption is that the Secretary and the President performed the duties devolved upon them respectively, and it would be unreasonable to construe the Secretary's endorsement as meaning that he had received the proceedings for the action of the President in conformity with Article 65, and had approved them himself and ordered execution of the sentence in contravention of the article.

[ 13 S. Ct. Page ]

     As we said in United States v. Page, 137 U.S. 673, 678, 680: "Undoubtedly the action required of the President under this article is judicial action. He decides personally, and the judgment is his own personal judgment, and not an official act, presumptively his. But that judgment need not be attested by his sign manual in order to be effectual." There the endorsement read that the proceedings had been forwarded to the Secretary of War, and by him submitted to the President; and we inquired: "By what process of reasoning can the conclusion be justified that, although these proceedings were laid before the President for his confirmation or disapproval, yet the findings and sentence were approved by some one else, who had no authority to act in the premises?" While in the case in hand it is not said that the proceedings were submitted to the President, it is stated that they had been forwarded to the Secretary of War for the action of the President, and as that is followed by an approval and the direction of the execution of the sentence, which approval and sentence could only emanate

[ 148 U.S. Page 90]

     from the President, the conclusion follows that the action taken was the action of the President.

The views of the Judge Advocate Goneral, and the action of the Secretary in 1888 upon a reference of the subject in answer to the petition of Captain Fletcher, presented to the President, March 27 of that year, were induced by the case of Runkle v. United States, 122 U.S. 543, and the present decision of the Court of Claims was based upon it. Reference to the report of that case shows that the circumstances were so exceptional as to render it hardly a safe precedent in any other.

It appeared therein that the proceedings, findings and sentence of the court-martial were transmitted to the Secretary of War, who, on January 16, 1873, wrote upon the record an order approving the proceedings, with certain exceptions, and the findings and sentence, together with the further statement that in view of the unanimous recommendation by the members of the court that the accused should receive executive clemency, and other facts, the President was pleased to remit all of the sentence except so much as directed cashiering; and that, thereupon, the Secretary issued a general order announcing the sentence, a thus modified. It further appeared that thereafter, and on the same day, Major Runkle presented to President Grant a petition insisting that the proceedings had not been approved by him as required by law; that the conviction was unjust; that the record was insufficient to warrant the issuing of the order, and asking its revocation and annulment; whereupon, in pursuance of the petition, the record of the official action theretofore had was, by direction of the President, referred to the Judge Advocate General for review and report; that this report was subsequently made, and with the petition was found by President Hayes awaiting further and final action thereon, and being taken up by him as unfinished business, the conviction and sentence were disapproved, and the order of January 16, 1873, revoked.

This court was of opinion that the order was capable of division into two separate parts, one relating to the approval of the proceedings and sentence, and the other to the executive

[ 148 U.S. Page 91]

     clemency which was invoked and exercised, and that under the circumstances, which are recapitulated, it could not be said that it positively and distinctly appeared that the proceedings had ever, in fact, been approved or confirmed by the President as required by the articles of war.

The facts that there was no reference to Article 65 in the Secretary's endorsement; that the objection that President Grant had not personally examined and approved of the proceedings, was taken and urged upon President Grant himself immediately upon the promulgation of the sentence; and that he entertained the objection, thereby recognizing the contention, seemed to make it a matter of argument whether he had personally acted in the premises.

If it had been affirmatively stated that the proceedings were submitted, perhaps the action of President Grant in the matter of the application might have been ascribed to some other ground than doubt as to his examination of the proceedings; but as the record stood, this court apparently thought that the presumptions conflicted, and, therefore, felt constrained to the conclusion announced.

We regard the certificate of the Secretary in this case, in 1872, as a sufficient authentication of the judgment of the President, and perceive no ground upon which the order of that date can be treated as null and void for want of the required approval.

It is insisted, however, on behalf of the claimant that the court-martial had no jurisdiction to try and convict Captain Fletcher, because the charge and specifications stated no offence whatever "within any Rules and Articles of War, or known to the military law and custom of the United States." We do not feel called upon to set forth the specifications on which the court-martial acted. They related to the incurring by the accused of certain indebtedness and the non-payment thereof, and while it is argued that the non-payment of debts does not justify conviction of conduct unbecoming an officer and a gentleman, we think that the specifications went farther than that, and contained the element that the circumstances under which the debts were contracted and not

[ 148 U.S. Page 92]

     paid were such as to render the claimant amenable to the charge. The evidence is not before us in any form, nor are there findings of fact in respect to the conduct and behavior forming the subject of inquiry. The specifications were not objected to for insufficiency, and cannot properly be held to be, on their face, incapable of sustaining the charge. As the court-martial had jurisdiction, errors in its exercise, if any, cannot be reviewed in this proceeding. Dynes v. Hoover, 20 How. 65; Keyes v. United States, 109 U.S. 336; Smith v. Whitney, 116 U.S. 167.

The judgment is reversed, and the cause remanded, with a direction to dismiss the petition.


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