No. 5556 | 8th Cir. | May 14, 1921
delivered the opinion of the Court.
Headquarters Eastern Department.
Governors Island, New York.
Spcc-ial Orders No. 304. November 27, 1917.
3. A general Court-Martial is appointed to meet Wednesday the 28th day of November, 1917. at 11 o’clock, A. M. or as soon thereafter as practicable at Governors Island, N. Y., and thereafter at such other stations in the vicinity oí' New York City, for the trial of such persons as may be properly brought before it.
Detail for the Court.
1. Col. William S. Patten, retired.
2. Col. George H. G. Gale, retired.
3. Col. Edwin P. Brewer, retired.
4. Col. Tredwell W. Moore, retired.
5. Lieut. Col. Edward E. Hardin, retired.
6. Lieut. Col. Edward It. Morris, retired.
7. Lieut. Col. James A. Goodin, retired.
8. Maj. Charles G. Dwyer, retired.
9. Capt. William H. Wheeler, retired.
10. Oapt. Otto. A. Nesmith, retired.
Maj. Jackson A. Dykman, J. A. O. It. C., Judge Advocate.
First Lieut. John G. Livingston, retired, Assistant Judge Advocate.
The employment of a stenographic report is authorized.
*110 The journeys required in complying with this order are necessary in the military service (250.42 J. A.)
By Command of Brigadier General Hoyle,
W. A. Simpson, Adjutant General,
Adjutant.
The appellant, who was commandant of the barracks, attached to his return and made a part of it the 151st paragraph of Special Orders 165, as follows:
War Department
Standard Form No. 13.3-1826
Special Orders
No. 165.
War Department,
Washington, July 18, 1917.
Extract.
**.•**•*«*
151. By direction of the President, the following-named retired officers are placed on active military duty under the provisions of the next to the last proviso of Section 24, act of Congress approved June 3,1916:
Col'. William S. Patten.
Col. Treadwell W. Moore.
Col. George H. Gale.
Col. Edwin P. Brewer.
Lieut. Col. James A. Goodin.
Lieut. Col. Edwin E. Hardin.
Lieut. Col. Edward It. Morris.
Maj. John Bigelow.
Maj. Charles G. Dwyer.
Capt. Otto A. Nesmith.
Capt. William H. Wheeler.
First Lieut. John G. Livingston.
The officers named will report in person to the commanding general, Eastern Department, Governors Island, N. Y., for assignment to duty. The travel directed is necessary in the military service.
**********
By order of the Secretary of War: Tasker H. Bliss,
Major General, Acting Chief of Staff.
Official:
H. P. McCain,
The Adjutant General.
Brigadier General. Hoyle, as commanding officer of the Eastern Department, had the right and authority under the 8th article of war (Comp. St. § 2308a) to select the retired officers named in the order as members of the court and to order them to serve as such, provided they had been assigned by the Secretary of War to active duty, with ‘their consent. 33 Stat. 264 (Comp. St. § 2078) ; U. S. v. Tyler, 105 U.S. 244" court="SCOTUS" date_filed="1882-03-13" href="https://app.midpage.ai/document/united-states-v-tyler-90566?utm_source=webapp" opinion_id="90566">105 U. S. 244, 26 L. Ed. 985. They were also competent to serve as members of the court and subject to call and orders to discharge that duty, provided the President in his discretion, and in time of war, directed that they be employed on active duty. 39 Stat. 183 (Comp. St. § 1920aa)\ The requirement appears to have been covered in both ways, so that no room for doubt might be left. But the petition for the writ alleges, “that the members constituting the general court-martial which attempted to try your petition were not qualified under the laws of the United States and the Articles of War to sit on a court-martial and that any judgment
•‘Precedent acts and conditions essential to the validity of the subsequent act in question are presumed to have been regularly and properly performed.” 9 Eneyc. of Evid. p. 948.
•‘It is not, in general, necessary to prove the written appointments of public officers; for this would be attended with general inconvenience; and a strong presumption arises from the exercise of a public office, that the appointment to it is valid. * * 15 In the case of justices of the peace, constables, &c., it is sufficient to prove that they acted in these characters without producing their appointments.” 1 Phillipps on Evidence, p. 489.
Mr. Justice Story, in delivering the opinion in Bank v. Dandridge, 12 Wheat. 64" court="SCOTUS" date_filed="1827-02-28" href="https://app.midpage.ai/document/bank-of-united-states-v-dandridge-85516?utm_source=webapp" opinion_id="85516">12 Wheat. 64, 6 L. Ed. 552, said:
The law “will presume that a man, acting in a public office, has been rightly appointed.”
“In saying that the appraisers had no right to act without the previous request of the collector, and that no such request appears in the evidence, nothing is stated beyond the truth. But, in the absence of testimony to the contrary, the legal presumption is, that the appraisers and collector both did their duty, -he requesting their action, as by law he might, and they complying.”
See also 2 Chamberlayne, Modern Law of Evidence, § 1199 et seq.; Nofire v. U. S., 164 U.S. 657" court="SCOTUS" date_filed="1897-01-04" href="https://app.midpage.ai/document/nofire-v-united-states-94577?utm_source=webapp" opinion_id="94577">164 U. S. 657, 17 Sup. Cff 212, 41 L. Ed. 588" court="SCOTUS" date_filed="1897-01-04" href="https://app.midpage.ai/document/nofire-v-united-states-94577?utm_source=webapp" opinion_id="94577">41 L. Ed. 588; Cofield v. McClelland, 16 Wall. 331" court="SCOTUS" date_filed="1873-03-17" href="https://app.midpage.ai/document/cofield-v-mcclelland-88684?utm_source=webapp" opinion_id="88684">16 Wall. 331, 21 L. Ed. 339.
' [2] Objections are also made to the order convening the court, that it does not appear to have been subscribed personally by Brigadier General Hoyle but by his staff officer, and also that the department of which he is in command should appear below his personal signature. The proposition is rested upon forms of such orders recommended in Winthrop’s Military Law. We regard the insistence, however,' as relating purely to a matter of form, and not substance. The order shows on its face that the court was convened and the detail fixed by command of the brigadier general, and the caption shows the ■ department of which he was commanding officer. In both respects we regard the objections as not well taken. We cannot draw the desired inference that, whereas the suggested form would show that the order received both the personal and official attention of the commanding officer, the one used would not.
“An officer or cadet wbo is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service.”
It exacts conduct becoming both an officer and a gentleman. We appreciate the high requirement añd purpose of the article and understand in a broad sense the offense, but confess, a lack of knowledge of its definite limitations, and also admit a superior capacity in the military court over the civil to deal with it. The same comments and admission go to tlie 96th article, though it is broader in scope than the 95th. As to persons, it includes every one subject to military law, as to the- offense, “all disorders and neglects to the prejudice of good order and military discipline, all conduct of a nature to bring discredit upon the military service” are covered, and as- to the punishment, that on conviction is left to the discretion of the court. An excerpt from Dynes v. Hoover, 20 How. 65" court="SCOTUS" date_filed="1858-02-18" href="https://app.midpage.ai/document/dynes-v-hoover-87129?utm_source=webapp" opinion_id="87129">20 How. 65, 82 (15 L. Ed. 838), is apt:
*113 “Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse; for what those crimes are, and how they are to be punished, is well known by practical men in the navy and army, and by those who have studied the law of courts-martial, and the offenses of which the different courts-martial have cognizance. With the sentences of courts-martial which have been convened regularly, and have proceeded legally, and by which punishments are directed, not forbidden by law, or which are according to the laws and customs of the sea, civil courts have nothing to do, nor are they in any way alterable by them. If it were otherwise, the civil courts would virtually administer the rules and articles oí war, irrespective of those to whom that duty and obligation has been confided by the laws of the United States.”
There was error in discharging appellee.
Reversed.