United States French v. Weeks

• Decision Date: 29 May 1922
• Docket Number: No. 724,724
• Citation: 259 U.S. 326,42 S.Ct. 505,66 L.Ed. 965
• Parties: UNITED STATES ex rel. FRENCH v. WEEKS, Secretary of War
• Court: U.S. Supreme Court

259 U.S. 326

42 S.Ct. 505

66 L.Ed. 965

UNITED STATES ex rel. FRENCH

v WEEKS, Secretary of War.

No. 724.

Argued April 20, 1922.

Decided May 29, 1922.

Messrs. S. T. Ansell, of Washington, D. C., and Charles Pope Caldwell, of New York City, for plaintiff in error.

Messrs. Solicitor General Beck, of Washington, D. C., and Frederick M. Brown, of New York City, for defendant in error.

Mr. Justice CLARKE delivered the opinion of the Court.

In the petition in this case a writ of mandamus is prayed for, commanding the Secretary of War to annual an order by him, purporting to have been made by direction and authority of the President, approving the action of a final classification board and retiring the relator, Col. John W. French, from active service in the Army, under the provisions of section 24b of the Army Reorganization Act, approved June 4, 1920 (41 Stat. 759, 773), and to restore him to the status of a colonel of infantry which he had before the order. The Secretary of War filed an answer, and, a demurrer thereto being sustained, the writ was allowed by the Supreme Court of the District of Columbia, as prayed for. This judgment was reversed by the Court of Appeals of the District of Columbia, and the case is here on writ of error for construction of the statute, and on the question of the jurisdiction of the court of issue a writ of mandamus in such a case.

The Army Reorganization Act is intended to provide for a reduction of the Army of the United States to a peace basis while maintaining a standard of high efficiency. To contribute to this purpose, Congress made elaborate provision in the act for retaining in the service officers who had proved their capacity and fitness for command and for retiring or discharging those who, for any reason, were found to be unfit. Every step of this process is committed to military tribunals, made up of officers who, by experience and training, should be the best qualified men in the country for such a duty, but with their action all subject, as we shall see, to the supervisory control of the President of the United States.

Not being in any sense a penal statute, the act should be liberally construed to promote its purpose, and it is of first importance that that purpose shall not be frustrated by unnecessarily placing technical limitations upon the agencies which are to carry it into effect. Street v. United States, 133 U. S. 299, 10 Sup. Ct. 309, 33 L. Ed. 631.

Section 24b deals only with the 'Classification of Officers,' and is printed in the margin.¹ The process provided by the section for classifying and reducing the number of officers, is as follows:

First. The President shall convene a board of not less than five general officers, which shall arrange all officers in two classes, viz.:

'Class A, consisting of officers who should be retained in the service, and class B, of officers who should not be retained in the service.'

This classification is tentative and since it is intended simply to furnish a basis for further action the board will be referred to he has been placed in class B by the Preliminary herein as the 'Preliminary Classification manner in which this board was convened or as to its composition.

Section. If, when an officer is notificed that he has been placed in class B by the Preliminary Classification Board, he shall request, as Col. French did, an opportunity to appear before a Court of Inquiry, then——

'he shall be furnished with a full copy of the official records upon which the proposed classification is based and shall be given an apportunity to present testimony in his own behalf.'

The powers and procedure of such a Court of Inquiry are not defined in the section, but their definition is found in chapter 2 of the act, being Articles of War 97 to 103, inclusive (41 Stat. 807), in which it is provided, that such a Court of Inquiry 'shall consist of three or more officers' (article 98), that it 'shall not give an opinion on the merits of the case inquired into unless specially ordered to do so' (article 102), and that it 'shall keep a record of its proceedings, which shall * * * be forwarded to the convening authority' (article 103). In this case, however, section 24b provides that the record of the Court of Inquiry shall be forwarded to the Final Classification Board.

Third. After a hearing has been had by a Court of Inquiry the section requires that its record shall be forwarded to the Final Classification Board for reconsideration of the case——

'and after such consideration the finding of said classification board shall be final and not subject to further revision except upon the order of the President.'

No objection is made in this court to the manner of the convening nor to the membership of this board.

Fourth. After the Final Classification Board has made a finding, if the President does not order further revision, and the officer who has demanded the Court of Inquiry is continued in class B, then the section provides that another 'board of not less than three officers shall be convened to determine whether such classification is due to his neglect, misconduct or avoidable habits. If the finding is affirmative, he shall be discharged from the Army; if negative, he shall be placed on the unlimited retired list with pay,' as provided in the section.

This board will be hereinafter referred to as the 'Honest and Faithful Board,' a name by which it is commonly and widely designated. The action of this board is not and could not be complained of, for it was favorable to the relator.

It is to be observed that there is no requirement in the section, that the officer whose case is under consideration shall either be notified of the hearing or that he shall be heard, by any of the tribunals thus provided for, except the Court of Inquiry.

The facts essential to the decision of the case, derived from the allegations of the petition not denied in the answer and from the allegations of the answer admitted by the demurrer, are as follows: When the relator was notified that he had been tentatively placed in class B as an officer not to be retained in the Army, he requested a Court of Inquiry, which was thereupon convened. He appeared before that court, was represented by counsel, and was given an opportunity to present testimony of himself and others in his behalf of which he availed himself.

The record of the Court of Inquiry was forwarded to the Final Classification Board for reconsideration of the case, but the classification of relator in class B was adhered to by that board, and was approved by the Secretary of War, under authority from the President, which, it is averred and admitted by the demurrer, was given to him prior to any determination in the relator's case. Prior to the submission of the record of the Final Classification Board to the Honest and and Faithful Board for the purpose of having determined the cause of the relator's classification, the Secretary of War, 'acting on behalf of and by the authority of the President,' signed at the foot of that record the notation: 'Approved: Baker, Secretary of War.' After the Honest and Faithful Board has determined that relator's classification was not due to his own neglect, misconduct, or avoidable habits, he was retired from service by the following order:

'Washington, D. C., December 24, 1920.

'The action of the Classification Board in finally classifying Col. John W. French, Infantry, in class B, is approved by the President, and, by his direction, a board of officers having determined that such classification is not due to the officer's neglect, misconduct or avoidable habits, Col. French is retired from active service, after twenty-two years of commissioned service, under the provision of section 24b of the act of Congress approved June 4, 1920.

'Newton D. Baker, Secretary of War.'

Newton D. Baker having been succeeded by John W. Weeks as Secretary of War, Secretary by John W. Weeks as Secretary of War, Secretary Weeks was substituted as defendant

While there are allegations in the petition that various formalities in the procedure prescribed by section 24b were not complied with, reliance is not placed upon any of these; in the assignments of error in this court and in argument the relator presses only one question upon our attention for decision, viz.:

It is contended that section 24b imposes a personal, nondelegable, judicial duty upon the President, to review the record of the Board of Final Classification in each case after it has made a finding, and by his order to approve or disapprove it, and that because the approval in this case was not made by the President personally, but by the Secretary of War, acting under delegated general direction and authority from the President, it is void and must be so treated.

The construction of the section thus contended for obviously would place such a burdensome, if not impossible, personal duty upon the President during the process of reducing the army from a war to a peace basis that, if Congress had intended to attempt such a thing, we may be sure its purpose would have been clearly expressed, and not left to doubtful implication.

The argument for the relator is bottomed entirely upon the use of the words 'except upon the order of the President,' for there is nothing else in the section suggesting participation by the President after the convening of the Preliminary Classification Board, and we are thus brought to consider the construction which should be placed upon these seven words.

To give the effect claimed for the words by the...