United States v. Lewis Brown No 283 Lewis Brown v. United States No 284

• Decision Date: 13 May 1907
• Docket Number: 284,Nos. 283,s. 283
• Citation: 206 U.S. 240,51 L.Ed. 1046,27 S.Ct. 620
• Parties: UNITED STATES, Appt., v. LEWIS E. BROWN. NO 283. LEWIS E. BROWN, Appt., v. UNITED STATES. NO 284
• Court: U.S. Supreme Court

206 U.S. 240

27 S.Ct. 620

51 L.Ed. 1046

UNITED STATES, Appt.,

v LEWIS E. BROWN.

NO 283.

LEWIS E. BROWN, Appt.,

v. UNITED STATES.

NO 284.

Nos. 283, 284.

Submitted April 25, 1907.

Decided May 13, 1907.

Assistant Attorney General Van Orsdel and Messrs. George B. Davis and Franklyn W. Collins for the United States.

[Argument of Counsel from page 241 intentionally omitted] Messrs. Lorenzo A. Bailey, W. W. Dudley, and L. T. Michener for Brown.

[Argument of Counsel from page 242 intentionally omitted] 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. Stat. § 1342, U. S. Comp. Stat. 1901, pp. 959, 960), 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 of 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, 46 L. ed. 1049, 22 Sup. Ct. Rep. 786. 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, chap. 46 (30 Stat. at L. 784). 41 Ct. Cl. 275, 515. 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 letter 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, chap. 187, § 13, 30 Stat. at L. 363; act of May 28, 1898, chap. 367, § 2, 30 Stat. at L. 421, U. S. Comp. Stat. 1901, p. 881.

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, chap. 20, art. 97, 2 Stat. at L. 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 (U. S. Comp. Stat. 1901, p. 959), 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...