US SUPREME COURT DECISIONS

The President has the power to supersede or remove an officer of the army by appointing another in his place by and with the advice and consent of the Senate.

Such power was not withdrawn by the provision in § 5 of the Act of July 13th, 1866, c. 176, 14 Stat. 92, now embodied in § 1229 of the Revised Statutes, that

"No officer in the military or naval service shall, in time of peace, be dismissed from service, except upon and in pursuance of the sentence of a court-martial to that effect or in commutation thereof."

Where a court-martial has cognizance of the charges made and has jurisdiction of the person of the accused, its sentence is valid when questioned collaterally although irregularities or errors are alleged to have occurred in its proceedings in that the prosecutor was a member of the court and a witness on the trial.

No opinion is expressed as to the propriety of such proceedings. chanrobles.com-redchanrobles.com-red

Page 109 U. S. 337

The appellant brought a suit against the United States in the Court of Claims on the 2d of February, 1880, claiming to recover the sum of $4,236.36 for his pay as a second lieutenant in the 5th regiment of cavalry in the army of the United States from the 28th of April, 1877. That court dismissed his petition, on the following facts found by it:

In February, 1877, the appellant was tried on four charges and specifications before a general court-martial composed of ten officers. One of them, Col. Merritt, was the colonel of the 5th cavalry. They were all present. The appellant being before the court, and the order appointing it being read, he was asked if he had any objection to any member of the court present, named in the order, to which he replied in the negative. The oaths were then administered to the members of the court in the presence of the appellant. The first three of the charges and specifications were preferred by the lieutenant colonel of the fifth cavalry and the fourth by Col. Merritt. The appellant was represented by counsel of his own selection. He pleaded not guilty. Col. Merritt was sworn as a witness on the part of the government, and gave testimony in support of the charge and specifications preferred by him, but gave no testimony in regard to the other charges and specifications. The day after the appellant pleaded not guilty, he withdrew, by leave of the court, his plea of not guilty of the second charge and its specifications, and entered a plea of guilty thereto. Col. Merritt continued to sit as a member of the court throughout the trial, and participated in rendering the final judgment. At the close of the evidence, the appellant submitted, in writing, a statement of his defense, which was read to the court. It contained no objection or reference to the participation of Col. Merritt in the trial as a member of the court or to his having been so sworn and examined as a witness on behalf of the government. The court found the appellant guilty of all the charges and specifications and sentenced him to be dismissed from the service. The proceedings, findings, and sentence of the court were approved by the President of the United States, who ordered that the sentence should take effect on the 28th of April, 1877. On the 27th of June, 1877, the Senate not being in session, chanrobles.com-redchanrobles.com-red

Page 109 U. S. 338

the President appointed Henry J. Goldman to be a second lieutenant in the 5th regiment of cavalry, and on the 15th of October, 1877, he nominated Goldman to the Senate for appointment as second lieutenant in said regiment in the place of the appellant, dismissed, to date from June 15, 1877. The Senate advised and consented to the appointment of Goldman, and he was accordingly commissioned and still holds the office of such second lieutenant. chanrobles.com-redchanrobles.com-red

Page 109 U. S. 339