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county in 1886. In March, 1896, it was de- | L. ed. 644, 648; Upton v. Tribilcock, 91 U. cided by this court that the territory known S. 45, 23 L. ed. 203; Snell v. Atlantic F. &
as Greer county belonged to the United States, and not to the state of Texas. United States v. Texas, 162 U. S. 1, 40 L. ed. 867, 16 Sup. Ct. Rep. 725. Thereupon, by act of Congress of May 4, 1896, chap. 155, the same territory was organized as Greer county, Oklahoma,-the present defendant, plaintiff in error. 29 Stat. at L. 113, chap. 155. On April 13, 1897, Texas passed a law purporting to set aside the land in controversy for the support of schools in Texas, and directing proceedings to recover the land against all adverse claims. Gen. Laws, 1897, chap. 72. Then this suit was brought. The defendant, among other things, set up that the state was attempting to impair the obligation of its grant.
The case was heard on agreed facts, and the state district court decided in favor of the state, on the ground that the general laws of Texas authorized patents to be issued to the counties of Texas only, and that therefore the patents were void. Another suit was brought against a purchaser from the de facto Texas county of a part of the land, in which the supreme court of the state decided that the purchaser got a good title, holding that the action of the state legislature still was conclusive on the court, notwithstanding the decision in United States v. Texas. Cameron v. State, 95 Tex. 545, 68 S. W. 508. The present cause was taken to the court of civil appeals, which distinguished Cameron v. State, and affirmed the judgment on the different ground that the grant was for public school purposes within the state of Texas; and, as the defendant could not and would not use the land for such purposes, the state was entitled to have the patents canceled and to recover the land. 31 Tex. Civ. App. 223, 72 S. W. 104. Then a writ of error was obtained from this court to enforce the constitutional right alleged by the defendant, as stated above.
M. Ins. Co. 98 U. S. 85, 90-92, 25 L. ed. 52, 55; Griswold v. Hazard, 141 U. S. 260, 284, 35 L. ed. 678, 11 Sup. Ct. Rep. 972, 999; Hirschfield v. London, B. & S. C. R. Co. L. R. 2 Q. B. Div. 1. There is the further consideration whether the gift created a public charity, as contended by the plaintiff in error, and if so, or, whatever the nature of the trust, whether there is such a failure of the donee as to invalidate the gift and to destroy the legal title of the defendant, if otherwise good. See Stratton v. PhysioMedical College, 149 Mass. 505, 508, 5 L. R. A. 33, 14 Am. St. Rep. 442, 21 N. E. 874, and cases cited.
We shall consider none of these questions, because we are of opinion that the plaintiff in error must fail on the short ground that it is a stranger to the gift. The plaintiff in error treats the change brought about by the decision in 162 U. S. 1, 40 L. ed. 867, 16 Sup. Ct. Rep. 725, as if it had been a cession of territory, or mere transfer of sovereignty by that or other means. It was nothing of the sort. It was a discovery that the state of Texas never had had a title to the land known as Greer county. The United States found itself at liberty to do what it chose with that land. It could have done nothing. It could have subdivided it at will. It could have made it part of some existing county. The land and its inhabitants retained no legal personality, least of all that personality with which Texas had purported to endow them. The United States, it is true, very properly did what it could to preserve the former condition of things. By § 1 of the act of May, 1896 (29 Stat. at L. 113, chap. 155), it provided that "all public buildings and property of every description heretofore belonging to Greer county, Texas, or used in the administration of the public business thereof, is hereby declared to be the property of said Greer county, Oklahoma;" and otherwise it did all in its power to keep up the legal continuity of the county with the supposed old one. things were not within its power, and one thing which it could not do was to make an artificial creation of its own successor to the title to lands in Texas, supposing that title to have been parted with, by its independent fiat. Without the consent of Texas no corporation created by another sovereignty could succeed to Texas lands.
The decision below and in Cameron v. Texas suggest interesting questions, which it is not necessary to answer. It may be doubted how far any court can be bound by legislation after this court has declared such legislation beyond the power of the state, any more than it would be if the law had been held unconstitutional. It would be curious to consider whether the mutual mistake in a matter which, on the face of the Greer county, Oklahoma, being a corporatransaction, obviously went to the root of tion created by a different sovereignty from the gift, was of such a nature as to war- that which purported to create Greer counrant an avoidance when the mistake was ty, Texas, is technically a different person. discovered, including the question whether It can claim the legal title, which Texas the mistake was one of law or fact. See purported to convey to a creation of its Bispham v. Price, 15 How. 162, 170, 171, 14' own, only by succession, or that feigned
identity familiar in the cases of executor | the state took whatever title that county and heir. See Day v. Worcester, N. & R. R. had. See Meriwether v. Garrett, 102 U. S. Co. 151 Mass. 302, 307, 308, 23 N. E. 824; 472, 26 L. ed. 197. The legal title is what 2 Co. Litt. § 337; North v. Butts, 2 Dyer, is in question before us, and the actual 1396, 140a; Oates v. Frith, Hobart, 130a. continuity of the inhabitants of the county But succession to land is governed wholly could be recognized only by way of trust. by the law of the place where the land lies. But it would be wrong to encourage the noDe Vaughn v. Hutchinson, 165 U. S. 566, tion that the title still may be charged with 570, 41 L. ed. 827, 829, 17 Sup. Ct. Rep. 461. a trust in favor of schools in Greer county. The land in controversy was no part of The aim of the statute, under which the Greer county, but lies in Texas; and Texas, patents were made out, was the support of so far from having assented to the succession Texas schools. That was its dominant purof the defendant, has assumed to deal with pose. We think it unlikely that any court the land as its own, by legislation, and has of equity would deem it equitable to direct directed this suit to be brought to recover the fund to any other trust. it. The legal title of the state is clear; for, Judgment affirmed. on the disappearance of the de facto county,
(197 U. S. 334)
JOSHUA BISHOP, Appt.,
the sentence of a court-martial and his reinstatement by Congress. Affirmed.
See same case below, 38 Ct. Cl. 473.
Court-martial—prior punishment for offense
1. The suspension of a naval officer charged
2. The copy of charges against a naval officer, which, together with the specifications, must be served, under the Navy regulation act of April 23, 1800, art. 38 (2 Stat. at L. 50, 51, chap. 33), on a person sought to be courtmartialed, "at the time he is put under arrest," need not be served when he is placed under arrest as a temporary precaution for the preservation of good order and for further investigation, but the service is in time, where he has been released from such arrest and returned to duty, conformably to the Navy Regulations of 1865, ¶ 1202, when made on the day of his rearrest.
The expressed satisfaction of the accused with the court-martial as constituted precludes collateral attack on its judgment on the ground that as many officers as could be convened without injury to the service were not summoned, as the act of July 17, 1862, art. 11 (12 Stat. at L. 603, chap. 204),
4. Confirmation of the sentence of a court martial by the officer convening it was not required by the act of July 17, 1862, arts. 19, 20 (12 Stat. at L. 605, chap. 204), where the sentence extended to dismissal from the
service, since under the first of such articles such a sentence must be approved by the
5. The confirmation by the President of the sentence of a court-martial sufficiently appears from the statement to that effect in a letter from the Secretary of the Navy notifying the accused that he was dismissed from the service, and the President's signed approval of the brief of the findings of the court-martial submitted to him by the Navy Department for his action.
Statement by Mr. Justice Brown: commander from February 8, 1868, when This is a petition for pay as a lieutenant defendant was dismissed from the naval service pursuant to the sentence of a general court-martial, until March 9, 1871, when he was reinstated by special act of Congress. The court of claims made a finding of facts, the material parts of which are incorporated in the opinion, and dismissed the petition. 38 Ct. Cl. 473.
Mr. Irvin W. Schultz for appellant. Assistant Attorney General Pradt and Felix Brannigan for appellee.
of the court:
This case depends upon the validity of the findings and sentence of the court-martial, and is brought under an act of Congress approved June 6, 1900 (31 Stat. at L. 1612, chap. 839), nearly thirty years after petitioner was recommissioned as a lieutenant commander, which enacted "that the claim of Joshua Bishop for alleged items of pay, due and unpaid to him for services as a lieutenant commander be, and the same is hereby, referred to the court of claims. Jurisdiction is hereby conferred on said court to try said cause, the statute of limitations shall not apply thereto,—and to render final judgment therein, subject to the right of appeal by either party." Claimant insisted in the court below that this statute was not a mere waiver of limi-. tations, but a recognition that claimant was a lieutenant commander during the time referred to in the act; but as this point is not made in the briefs filed in this court, it may be considered as abandoned.
The action of the court-martial in dismissing the petitioner from the service is attacked upon the following grounds:
1. That the court had no jurisdiction over him, because he had already been punished for the offenses charged against him, viz., drunkenness and neglect of duty.
It appears from the findings that Bishop was a lieutenant commander in the naval
Argued and submitted March 2, 3, 1905. service, attached to the steamer Wyoming,
Decided April 3, 1905.
PPEAL from the Court of Claims to review the dismissal of a petition for pay as an officer in the Navy between the date of his dismissal from the service pursuant to
then lying in the harbor of Nagasaki, Japan; that he was ordered by his commanding officer to have his ship ready for sea by daylight on the morning of the 31st of May, 1867, but that he went ashore and did not return until after daylight. On
May 31 the following entries appear on the Bishop to duty to await an opportunity for log:
From 4 to 8 A. M.
Lieutenant Commander Joshua Bishop was suspended from duty by order of Lt. Commander C. C. Carpenter.
George B. Glidden, Master.
From 6 to 8 P. M.
time to investigate the case.
I am, sir, very respectfully,
Rear Admiral, Commanding
It is quite evident that the words "arrest, suspension, or confinement," in 1205, contemplate an action in the nature of a punishment, upon the infliction of which the
At 6.40 Lt. Comdr. Joshua Bishop was re-offense is to be regarded as expiated; but as stored to duty by order of Rear Admiral H. H. Bell.
George B. Glidden, Master.
Upon being placed on trial before the court-martial Bishop pleaded that he was placed under arrest for the offenses specified (drunkenness and neglect of duty), but was ordered released from arrest by Rear Admiral Bell; and in this connection refers the court to 1205, Navy Regulations of 1865,
then in force, as follows:
"An offense committed at any one time, for which a person in the Navy shall have
been placed under arrest, suspension, or confinement, and subsequently entirely discharged therefrom by competent authority, or for which he shall have been otherwise fully punished, is to be regarded as expiated, and no further martial proceedings against him for the offense itself are ever afterwards to take place." etc.
the order restoring Bishop to duty was on its face merely to give "time to investigate the case," we do not think the order of suspension could have been intended as a punishment in itself, or as an expiation of the previous offense, nor did the order of Adwithin the meaning of ¶ 1205 of the Navy miral Bell "entirely discharge" the accused Regulations.
been taken until June 21, 1867, when 2. No further proceedings appear to have charges and specifications were preferred by Rear Admiral Bell, and on September 5,
1867, the following entry appears upon the
From 4 to 8 A. M.
Lt. Comdr. Joshua Bishop placed under arrest to await trial by court-martial, and served with copy of charges, by order of Rear Admiral H. H. Bell, comdg. U. S. Asiatic Squadron.
E. F. Crawford, Mate.
The petitioner cites in this connection article 38 of the laws regulating the Navy, approved April 23, 1800 (2 Stat. at L. 50, 51, chap. 33), providing that "all charges on which an application for a general courtmartial is founded shall be exhibited in writing to the proper officer, and the person demanding the court shall take care that the person accused be furnished with
Conceding that the petitioner was within the letter of the regulations, inasmuch as he was suspended from duty in the morning of May 31 and restored to duty on the evening of the same day, we do not think the case is within its real meaning, which looks to a punishment of the offense by such suspension. As it appears that Bishop was intoxicated during the preceding day, and went ashore and failed to report at daylight on the next morning, it would naturally be in-a true copy of the charges, with the speciferred that his suspension from duty was not intended as a punishment, but as a reasonable precaution for the maintenance of good order and discipline aboard.
That this was the understanding of the rear admiral is evidenced from the following letter restoring him to duty:
U. S. Flagship Hartford, Nagasaki, Japan, May 31, 1867. Lieut. Comm'd'r C. C. Carpenter,
Comm'd'g U. S. S. Wyoming, Nagasaki.
fications, at the time he is put under arrest," and insists in this connection that he should have been served with a copy of the charges and specifications on May 31, 1867, when he was suspended. The objection is unfounded.
As already indicated, the first arrest was a temporary precaution for the preservation of good order and for further investigation. There was no opportunity for the preparation of charges and specifications, and evidently this was not the arrest contemplated by the above act.
Sir:It is true that ¶ 1202 of the Navy ReguYour communication of this date, re-lations of 1865 provides that offenders shall porting Lieutenant Commander Bishop to be brought to trial within thirty days after me, is received. notice to the proper authority, empowered You will restore Lieutenant Commander' to convene such court, or shall be released
from arrest and returned to duty, and so remain until a court-martial can be convened to try him, "when he shall be again arrested on the day before the court is convened, so as to undergo his trial before it." As petitioner had been "released from arrest and returned to duty" on May 31, and so remained until September 5, when he was "again arrested" on the day before the courtmartial was ordered to convene; and as he was served with a copy of the charges and specifications on the day he was arrested,we see nothing in these proceedings of which he is entitled to complain. The point is completely covered by Johnson v. Sayre, 158 U. S. 109, 117, 39 L. ed. 914, 917, 15 Sup. Ct. Rep. 773.
3. Petitioner's contention that the courtmartial was illegally constituted rests upon article 11 of the act of July 17, 1862 (12 Stat. at L. 603, chap. 204), providing that "no general court-martial shall consist of more than thirteen nor less than five commissioned officers as members; and as many officers shall be summoned on every such court as can be convened without injury to the service, so as not to exceed thirteen; and the senior officer shall always preside, the others taking place according to their rank; and in no case, where it can be avoided without injury to the service, shall more than one half the members, exclusive of the president, be junior to the officer to be tried."
The argument is that, as the court-martial consisted of only seven officers, it had not power or authority to try and sentence petitioner without showing affirmatively that no more could be convened without injury to the service. As the court-martial consisted of more than five commissioned officers, viz., seven, all of whom were of equal or superior rank to the petitioner, it was a question for the officer convening the court to determine whether more could be convened without injury to the service; and we do not think his action or nonaction in this particular can be collaterally attacked. The regulations have been recently amended in that particular. As the accused when arraigned said he had no objection to any member of the court, and knew of no reason why the court should not proceed with his trial, it is manifestly too late to raise the objection, in view of our decision in Mullan v. United States, 140 U. S. 240, 35 L. ed. 489, 11 Sup. Ct. Rep. 788, in which we held that when the commander-in-chief of a squadron not in the waters of the United States convenes court-martial, more than one half of whose members are juniors in rank to the accused, the courts of the United States will assume, when his action is attacked collaterally, that he properly exercised his discretion, and the trial
of the accused by such a court could not be avoided without inconvenience to the service. The rank and number of the members of a court-martial must necessarily be, and is, left somewhat to the discretion of the officer convening the court. There is nothing in this case to indicate an abuse of discretion, or that a larger number of officers might have been convened without injury to the service, although if the accused had taken prompt advantage of the defect it might have been necessary to show that a larger number could not have been obtained. His expressed satisfaction with the court as constituted was a clear waiver of any objection to its personnel.
4. The objection that the court-martial proceedings are void because its sentence was not approved or confirmed by Rear Admiral Bell, who convened the court, is answered by articles 19 and 20 of the act of July 17, 1862, for the better government of the Navy. 12 Stat. at L. 605, chap. 204. The first of these articles provides that "all sentences of courts-martial which shall extend to the loss of life shall require the concurrence of two thirds of the members present," as well as confirmation by the President. "All other sentences may be determined by a majority of votes, and carried into execution, on confirmation of the commander of the fleet, or officer ordering the court, except such as go to the dismission of a commissioned or warrant officer, which are first to be approved by the President of the United States." As the sentence in this case extended to a dismissal from the service, no confirmation was necessary by Admiral Bell, whose duty was discharged by forwarding the papers to the President.
Petitioner relies upon article 20 of the same act, which declares that "every officer who is by this act authorized to convene courts-martial shall have power, on revisal of its proceedings, to remit or mitigate, but not to commute, the sentence of any such court, which he is authorized to approve and confirm." Obviously, this article extends only to such sentences as the convening officer is authorized to approve and confirm, and has no application where the punishment of dismissal is imposed.
5. The last point made is that the courtmartial proceedings are void because the sentence was never confirmed by the President of the United States. The record shows that the proceedings of the court-martial were forwarded and submitted to the Secretary of the Navy for the action of the President, under article 19, above quoted; that the papers were submitted to some officer connected with the Navy Department, who made a statement, termed a "brief," of the