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 M. Ins. Co. 98 U. S. 85, 90–92, 25 L. ed. 52, States, and not to the state of Texas. 55; Griswold v. Hazard, 141 U. S. 260, 284, United States v. Texas, 162 U. S. 1, 40 L. 35 L. ed. 678, 11 Sup. Ct. Rep. 972, 999; ed. 867, 16 Sup. Ct. Rep. 725. Thereupon, Hirschfield v. London, B. & 8. C. R. Co. L. by act of Congress of May 4, 1896, chap. R. 2 Q. B. Div. 1. There is the further con155, the same territory was organized as sideration whether the gift created a pubGreer county, Oklahoma,—the present de- lic charity, as contended by the plaintiff in fendant, plaintiff in error. 29 Stat. at L. error, and if so, or, whatever the nature of 113, chap. 155. On April 13, 1897, Texas the trust, whether there is such a failure of passed a law purporting to set aside the the donee as to invalidate the gift and to land in controversy for the support of destroy the legal title of the defendant, if schools in Texas, and directing proceedings otherwise good. See Stratton V. Physioto recover the land against all adverse Medical College, 149 Mass. 505, 508, 5 L. R. claims. Gen. Laws, 1897, chap. 72. Then A. 33, 14 Am. St. Rep. 442, 21 N. E. 874, this suit was brought.

brought. The defendant, and cases cited. among other things, set up that the state We shall consider none of these questions, was attempting to impair the obligation of because we are of opinion that the plaintiff its grant.

in error must fail on the short ground that The case was heard on agreed facts, and it is a stranger to the gift. The plaintiff in the state district court decided in favor of error treats the change brought about by the state, on the ground that the general the decision in 162 U. S. 1, 40 L. ed. 867, 16 laws of Texas authorized patents to be is. Sup. Ct. Rep. 725, as if it had been a cession sued to the counties of Texas only, and that of territory, or mere transfer of sovereignty therefore the patents were void. Another by that or other means. It was nothing of suit was brought against a purchaser from the sort. It was a discovery that the state the de facto Texas county of a part of the of Texas never had had a title to the land land, in which the supreme court of the known as Greer county. The United States state decided that the purchaser got a good found itself at liberty to do what it chose title, holding that the action of the state with that land. It could have done nothing. legislature still was conclusive on the court, It could have subdivided it at will. It notwithstanding the decision in United could have made it part of some existing States v. T'exas. Cameron v. State, 95 Tex. county. The land and its inhabitants re545, 68 S. W. 508. The present cause was tained no legal personality, least of all that taken to the court of civil appeals, which personality with which Texas had purported distinguished Cameron v. State, and affirmed to endow them. The United States, it is the judgment on the different ground that true, very properly did what it could to prethe grant was for public school purposes serve the former condition of things. By $ within the state of Texas; and, as the de- 1 of the act of May, 1896 (29 Stat. at L. fendant could not and would not use the 113, chap. 155), it provided that “all public land for such purposes, the state was en- buildings and property of every description titled to have the patents canceled and to heretofore belonging to Greer county, Texas, recover the land. 31 Tex. Civ. App. 223, 72 or used in the administration of the pubS. W. 104. Then a writ of error was ob- lic business thereof, is hereby declared to tained from this court to enforce the consti- be the property of said Greer county, Oklatutional right alleged by the defendant, as homa;" and otherwise it did all in its power stated above.

to keep up the legal continuity of the counThe decision below and in Cameron v. ty with the supposed old one.

But some Texas suggest interesting questions, which things were not within its power, and one it is not necessary to answer. It may be thing which it could not do was to make doubted how far any court can be bound by an artificial creation of its own successor legislation after this court has declared such to the title to lands in Texas, supposing legislation beyond the power of the state, that title to have been parted with, by its any more than it would be if the law had independent fiat. Without the consent of been held unconstitutional. It would be Texas no corporation created by another curious to consider whether the mutual mis- sovereignty could succeed to Texas lands. take 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; Outes 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 reinV.

statement by Congress. Affirmed. UNITED STATES.

See same case below, 38 Ct. Cl. 473.

Court-martial-prior punishment for offense Statement by Mr. Justice Brown: charged—notice of charges-objection to

This is a petition for pay as a lieutenant number of judges—waiver—confirmation commander from February 8, 1868, when

of sentence—by officer convening court- defendant

defendant was dismissed from the naval by President.

service pursuant to the sentence of a gen

eral court-martial, until March 9, 1871, 1. The suspension of a naval officer charged when he was reinstated by special act of

with drunkenness and neglect of duty, from morning until evening of the same day, when Congress. The court of claims made a findhe was restored to duty to give “time to in- ing of facts, the material parts of which are vestigate the case,” is not such a punishment incorporated in the opinion, and dismissed for the offense as precludes, under the Navy the petition. 38 Ct. Cl. 473. Regulations of 1865, 1 1205, further proceedings against him by court-martial, but must be deemed simply a temporary pre- Mr. Irvin W. Schultz for appellant. caution for the preservation of good order

Assistant Attorney General Pradt and and discipline.

Felix Brannigan for appellee. 2. The copy of charges against a naval officer,

which, together with the specifications, must be served, under the Navy regulation act of Mr. Justice Brown delivered the opinion April 23, 1800, art. 38 (2 Stat. at L. 50, 51, of the court: chap. 33), on a person sought to be court

This case depends upon the validity of the martialed, “at the time he is put under arrest,” need not be served when he is placed findings and sentence of the court-martial, under arrest as a temporary precaution for and is brought under an act of Congress apthe preservation of good order and for further investigation, but the service is in proved June 6, 1900 (31 Stat. at L. 1612, time, where he has been released from such chap. 839), nearly thirty years after pearrest and returned to duty, conformably to titioner was recommissioned as a lieutenant the Navy Regulations of 1865, [1202, when commander, which enacted that the claim made on the day of his rearrest.

of Joshua Bishop for alleged items of pay, 8. The expressed satisfaction of the accused due and unpaid to him for services as a with the court-martial as constituted pre

lieutenant commander cludes collateral attack on its judgment on

be, and the the ground that as many officers as could same is hereby, referred to the court of be convened without injury to the service claims. Jurisdiction is hereby conferred on were not summoned, as the act of July 17, said court to try said cause,—the statute 1862, art. 11 (12 Stat. at L. 603, chap. 204), of limitations shall not apply thereto,—and

requires. 4. Confirmation of the sentence of a court- to render final judgment therein, subject

martial by the officer convening it was not to the right of appeal by either party.” required by the act of July 17, 1862, arts. 19, Claimant insisted in the court below that 20 (12 Stat. at L. 605, chap. 204), where this statute was not a mere waiver of limi. the sentence extended to dismissal from the service, since under the first of such arti- tations, but a recognition that claimant was cles such a sentence must be approved by the a lieutenant commander during the time rePresident.

ferred to in the act; but as this point is not 5. The confirmation by the President of the made in the briefs filed in this court, it may

sentence of a court-martial sufficiently ap- be considered as abandoned. pears from the statement to that effect in a

The action of the court-martial in disletter from the Secretary of the Navy notifying the accused that he was dismissed from missing the petitioner from the service is atthe service, and the President's signed ap- tacked upon the following grounds: proval of the brief of the findings of the 1. That the court had no jurisdiction over court-martial submitted to him by the Navy him, because he had already been punished Department for his action.

for the offenses charged against him, viz.,

drunkenness and neglect of duty. [No. 92.]

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.

then lying in the harbor of Nagasaki,

Japan; that he was ordered by his comPPEAL from the Court of Claims to re- manding officer to have his ship ready for A

view the dismissal of a petition for pay sea by daylight on the morning of the 31st as an officer in the Navy between the date of of May, 1867, but that he went ashore and his dismissal from the service pursuant to 'did not return until after daylight. On

.

May 31 the following entries appear on the Bishop to duty to await an opportunity for
log:

time to investigate the case.
I am, sir, very respectfully,

H. H. Bell,
From 4 to 8 A. M.

Rear Admiral, Commanding
Lieutenant Commander Joshua Bishop

U. S. Asiatic Squadron. was suspended from duty by order of Lt. Commander C. C. Carpenter.

It is quite evident that the words “arrest, George B. Glidden, Master.

suspension, or confinement,” in | 1205, con

template an action in the nature of a punFrom 6 to 8 P. M.

ishment, 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. the order restoring Bishop to duty was on H. Bell.

its face merely to give “time to investigate George B. Glidden, Master. the case," we do not think the order of sus

pension could have been intended as a pun

ishment in itself, or as an expiation of the Upon being placed on trial before the court-martial Bishop pleaded that he was previous offense, nor did the order of Adplaced under arrest for the offenses specified within the meaning of | 1205 of the Navy

miral Bell “entirely discharge” the accused (drunkenness and neglect of duty), but was

Regulations. ordered released from arrest by Rear Admiral Bell; and in this connection refers the been taken until June 21, 1867, when

2. No further proceedings appear to have court to s 1205, Navy Regulations of 1865, charges and specifications were preferred by then in force, as follows:

Rear Admiral Bell, and on September 5,
“at ,
for which a person in the Navy shall have 1867, the following entry appears upon the

log:
been placed under arrest, suspension, or con-
finement, and subsequently entirely dis-From 4 to 8 A. M.
charged therefrom by competent authority,

Lt. Comdr. Joshua Bishop placed under
or for which he shall have been otherwise arrest to await trial by court-martial, and
fully punished, is to be regarded as expi- served with copy of charges, by order of
ated, and no further martial proceedings Rear Admiral H. H. Bell, comdg. U. S.
against him for the offense itself are ever Asiatic Squadron.
afterwards to take place.” etc.

E. F. Crawford, Mate. Conceding that the petitioner was within the letter of the regulations, inasmuch as he

The petitioner cites in this connection arwas suspended from duty in the morning of ticle 38 of the laws regulating the Navy, May 31 and restored to duty on the evening approved April 23, 1800 (2 Stat. at L. 50, of the same day, we do not think the case 51, chap. 33), providing that “all charges is within its real meaning, which looks to a

on which an application for a general courtpunishment of the offense by such suspen- martial is founded shall be exhibited in sion. As it appears that Bishop was intoxi- writing to the proper officer, and the percated during the preceding day, and went son demanding the court shall take care ashore and failed to report at daylight on that the person accused be furnished with the next morning, it would naturally be in a true copy of the charges, with the speciferred that his suspension from duty was fications, at the time he is put under arnot intended as a punishment, but as a rea- rest,” and insists in this connection that sonable precaution for the maintenance of he should have been served with a copy of good order and discipline aboard.

the charges and specifications on May 31, That this was the understanding of the 1867, when he was suspended. The objecrear admiral is evidenced from the follow- tion is unfounded. ing letter restoring him to duty:

As already indicated, the first arrest was a temporary precaution for the preserva

tion of good order and for further investiU. S. Flagship Hartford, gation. There was no opportunity for the

Nagasaki, Japan, May 31, 1867. preparation of charges and specifications, Lieut. Comm’d'r C. C. Carpenter,

and evidently this was not the arrest conComm’d'g U. S. S. Wyoming, Nagasaki. templated by the above act. Sir:

It is true that | 1202 of the Navy ReguYour communication of this date, relations 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 of the accused by such a court could not be remain until a court-martial can be con- avoided without inconvenience to the servvened to try him, "when he shall be again ice. The rank and number of the members arrested on the day before the court is con- of a court-martial must necessarily be, and vened, so as to undergo his trial before it.” is, left somewhat to the discretion of the As petitioner had been “released from ar- officer convening the court. There is nothrest and returned to duty" on May 31, and ing in this case to indicate an abuse of disso remained until September 5, when he was cretion, or that a larger number of officers "again arrested” on the day before the court might have been convened without injury to martial was ordered to convene; and as he the service, although if the accused had was served with a copy of the charges and

py of the charges and taken prompt advantage of the defect it specifications on the day he was arrested, — might have been necessary to show that a we see nothing in these proceedings of which larger number could not have been obtained. he is entitled to complain. The point is

The point is His expressed satisfaction with the court completely covered by Johnson v. Sayre, 158 as constituted was a clear waiver of any obU. S. 109, 117, 39 L. ed. 914, 917, 15 Sup. jection to its personnel. Ct. Rep. 773.

4. The objection that the court-martial 3. Petitioner's contention that the court proceedings are void because its sentence martial was illegally constituted rests upon was not approved or confirmed by Rear Adarticle 1l of the act of July 17, 1862 (12 miral Bell, who convened the court, is anStat. at L. 603, chap. 204), providing that swered by articles 19 and 20 of the act of "no general court-martial shall consist of July 17, 1862, for the better government of more than thirteen nor less than five com- the Navy. 12 Stat. at L. 605, chap. 204. missioned officers as members; and as many The first of these articles provides that “all officers shall be summoned on every such sentences of courts-martial which shall excourt as can be convened without injury to tend to the loss of life shall require the conthe service, so as not to exceed thirteen; and currence of two thirds of the members presthe senior officer shall always preside, the ent,” as well as confirmation by the Presiothers taking place according to their rank; dent.

dent. "All other sentences may be deterand in no case, where it can be avoided with mined by a majority of votes, and carried out injury to the service, shall more than into execution, on confirmation of the comone half the members, exclusive of the presi- mander of the fleet, or officer ordering the dent, be junior to the officer to be tried.” court, except such as go to the dismission of

The argument is that, as the court-martial a commissioned or warrant officer, which consisted of only seven officers, it had not are first to be approved by the President of power or authority to try and sentence pe- the United States.” As the sentence in titioner without showing affirmatively that this case extended to a dismissal from the no more could be convened without injury to service, no confirmation was necessary by the service. As the court-martial consist- Admiral Bell, whose duty was discharged ed of more than five commissioned officers, by forwarding the papers to the President. riz., seven, all of whom were of equal or Petitioner relies upon article 20 of the superior rank to the petitioner, it was a same act, which declares that "every offiquestion for the officer convening the court cer who is by this act authorized to conto determine whether more could be con- vene courts-martial shall have power, on vened without injury to the service; and we revisal of its proceedings, to remit or mitido not think his action or nonaction in gate, but not to commute, the sentence of this particular can be collaterally attacked. any such court, which . he is auThe regulations have been recently amend thorized to approve and confirm.” Obvioused in that particular. As the accused when ly, this article extends only to such senarraigned said he had no objection to any tences as the convening officer is authorized member of the court, and knew of no rea- to approve and confirm, and has no applison why the court should not proceed with cation where the punishment of dismissal his trial, it is manifestly too late to raise is imposed. the objection, in view of our decision in 5. The last point made is that the courtMullan v. United States, 140 U. S. 240, 35 martial proceedings are void because the L. ed. 489, 11 Sup. Ct. Rep. 788, in which sentence was never confirmed by the Presiwe held that when the commander-in-chief dent of the United States. The record shows of a squadron not in the waters of the that the proceedings of the court-martial United States convenes a court-martial, were forwarded and submitted to the Secremore than one half of whose members are tary of the Navy for the action of the Presijuniors in rank to the accused, the courts dent, under article 19, above quoted; that of the United States will assume, when his the papers were submitted to some officer action is attacked collaterally, that he prop- connected with the Navy Department, who erly exercised his discretion, and the trial 'made a statement, termed a "brief,” of the