The proof requires but a few words. It is not denied that the defendants generate in their works near the Georgia line large quantities of sulphur dioxid which becomes sulphurous acid by its mixture with the air. It hardly is denied, and cannot be denied with success, that this gas often is carried by the wind great distances and over great tracts of Georgia land. On the evidence the pollution of the air and the magnitude of that pollution are not open to dispute. Without any attempt to go into details immaterial to the suit, it is proper to add that we are satisfied, by a preponderance of evidence, that the sulphurous fumes cause and threaten damage on so considerable a scale to the forests and vegetable life, if not to health, within the plaintiff state, as to make out a case within the requirements of Missouri v. Illinois, 200 U. S. 496, 50 L. ed. 572, 26 Sup. Ct. Rep. 268. Whether Georgia, by insisting upon this claim, is doing more harm than good to her own citizens, is for her to determine. The possible disaster to those outside the state must be accepted as a consequence of her standing upon her extreme rights.

It is argued that the state has been guilty of laches. We deem it unnecessary to consider how far such a defense would be available in a suit of this sort, since, in our opinion, due diligence has been shown. The conditions have been different until recent years. After the evil had grown greater in 1904 the state brought a bill in this court. The defendants, however, already were abandoning the old method of roasting ore in open heaps and it was hoped that the change would stop the trouble. They were ready to agree not to return to that method, and, upon such an agreement being made, the bill was dismissed without prejudice. But the plaintiff now finds, or thinks that it finds, that the tall chimneys in present use cause the poisonous gases to be carried to greater distances than ever before, and that the evil has not been helped.

If the state of Georgia adheres to its determination, there is no alternative to issuing an injunction, after allowing a reasonable time to the defendants to complete the structures that they now are building, and the efforts that they are making to stop the fumes. The plaintiff may submit a form of decree on the coming in of this court in October next. Injunction to issue.

Mr. Justice Harlan, concurring:

The state of Georgia is, in my opinion, entitled to the general relief sought by its bill, and, therefore, I concur in the result. With some things, however, contained in the opinfon, or to be implied from its language, I do

not concur. When the Constitution gave this court original jurisdiction in cases "in which a state shall be a party," it was not intended, I think, to authorize the court to apply in its behalf any principle or rule of equity that would not be applied, under the same facts, in suits wholly between private parties. If this were a suit between private parties, and if, under the evidence, a court of equity would not give the plaintiff an injunction, then it ought not to grant relief, under like circumstances, to the plaintiff, because it happens to be a state, possessing some powers of sovereignty. Georgia is entitled to the relief sought, not because it is a state, but because it is a party which has established its right to such relief by proof. The opinion, if I do not mistake its scope, proceeds largely upon the ground that this court, sitting in this case as a court of equity, owes some special duty to Georgia as a state, although it is a party, while, under the same facts, it would not owe any such duty to the plaintiff if an individual.

UNITED STATES, Appt.,

V.

LEWIS E. BROWN. (No. 283.)

LEWIS E. BROWN, Appt.,

V.

UNITED STATES. (No. 284.)

Courts-martial-who may sit.

1. An officer of the Regular Army is 1342, art. 77, U. S. Comp. Stat. 1901, p. within the provisions of U. S. Rev. Stat. § 959, that "officers of the Regular Army shall not be competent to sit on courts-martial to try officers or soldiers of other forces," although such officer has been granted an indefinite leave of absence from the Regular Army in order to enable him to accept a commission in the volunteer forces. Army-pay-discharge.

2. The refusal of a certificate of honorable discharge to a volunteer officer as of the date when his regiment was mustered already legally been dishonorably discharged, out, on the mistaken ground that he had cannot be regarded as an active retention of such officer in the service, so as to entitle him to pay after that date, in view of the provision of the act of March 2, 1899 (30 Stat. at L. 977, 981, chap. 352), § 15, for the mustering out of officers and men of the Volunteer Army, and of the requirement of the act of January 12, 1899 (30 Stat. at L. 784, chap. 46), that, as far as practicable, the discharge of officers and men should take effect at the muster out of the organization to which they belonged. Army-extra pay.

3. A volunteer officer who has been given the two months' extra pay for service

1907.

if a contrary construction should be adopted now, and that the leave given to ap

Claims to review a judgment sustaining in part a claim for pay of a volunteer of ficer after the date on which he was dismissed from the service by sentence of a court-martial. Affirmed.

See same case below, 41 Ct. Cl. 275. The facts are stated in the opinion. Assistant Attorney General Van Orsdel and Messrs. George B. Davis and Franklyn W. Collins for the United States.

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 of

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 or 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

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 consequences, we must accept the plain meaning of plain words. It follows that the proceedings of the court were void and that it is not necessary to mention or consider other objections that were urged.

We are of opinion that the court of claims was right also in the allowances made to the claimant. In 1900 the claimant applied for an honorable discharge as of May 25, 1899, the date when his regiment was mustered out, but was refused. Of course, the refusal of a certificate of honorable discharge on the ground that the applicant already has been dishonorably discharged is not an active retention of the officer in the service. The act of March 2, 1899, chap. 352, § 15 (30 Stat. at L. 977, 981), provided that the officers and men of the Volunteer Army should be mustered out, and, under the act of January 12, 1899, chap. 46 (30 Stat. at L. 784), "as far as practicable," the discharge of officers and men was to take effect at the muster out of the organization to which they belonged. It would be monstrous to hold that it had been determined not to be practical to discharge the claimant when his regiment was mustered out, or that the

The Hawaiian government at once took possession of the Lahainaluna seminary and carried on the school exactly it had been conducted by the Mission, both in religious instruction and the inculcation of sound literature and solid science.

For many years after the government had taken over the school the principals of the school continued their relations as missionaries of the American Board in their work in the school, and continued to make reports of their educational and religious work and instruction in the school to the general meetings of the mission.

In 1862 the seminary buildings were burned down. Other buildings were built. The principal, in his report for that year, 1862-63, reviewing the history of the school, says: "The Hawaiian government has always been a liberal friend and benefactor. Never in any way have they interfered with our manner of instruction, or in the course of instructions pursued. In our work we have had all the freedom which we possibly could have had under the A. B. C. F. M." Also, referring to pupils who, under the religious instruction at the school, became ministers, he says: "While six who were connected with it since it has been under the care of the Hawaiian government have been ordained to the same office."

coming within its appropriate means or power have been spared to promote its usefulness and secure the objects of its establishment.

Three missionaries have, for a large portion of the time, been devoted to its interests, and two at all times since the two or three first years of its existence. About $77,000.00 have been expended for its benefit, including the support of the teachers and the dwellings erected for their accommodation.

We need not point you to the fruits of this cherished institution, scattered throughout the islands, filling various posts of honor, responsibility, and usefulness, both in and out of the government. They are well known to his Majesty and the officers of his government, and to none better than yourself.

The institution has been planted and sustained to the present time by the American Board of Commissioners of Foreign Missions, from donations given by the American churches for the spread of the gospel in heathen lands. That board, as we learn by recent intelligence, was, at the close of its last financial year, embarrassed by a debt of $60,000.00, incurred in the prosecution of its labors of benevolence and mercy.

As a consequence of its indebtedness, it has been obliged to curtail its expenditures by diminishing its grants to each one of the missions under its care, and this mission, in common with others, has shared in the general reduction.

Prior to the establishment of the Anglican Church in Hawaii the board of education appointed as instructors such persons as were acceptable to the mission, generally selecting those nominated by the mission. When the Anglican mission was established it was proposed that the forms and probably the substance of religious instruction should be changed, and advice was asked of the Attorney General. His reply reviewed the whole arrangement upon which the government received the seminary, and concluded as follows: "Should the govern

ment not be willing to keep the conditions as far as I have shown, then the property and improvements must be restored to the A. B. C. F. M.”

In 1865 the Hawaiian Gazette, the official mouthpiece of the government, declared that the government had resolved that its support should be given to schools irrespective of their religious teaching, but pointed out that the board of education might be chargeable with partiality for supporting a state church, inasmuch as it paid large sums to defray the expenses of Lahainaluna, where the principles and theology of one particular sect were exclusively taught, although opposed to the belief of all in communion with Roman Catholic and Episcopal churches.

For this reason the mission will be unable to carry forward its operations with the vigor to be desired in all of its departments of labor. Some must almost inevitably suffer for want of pecuniary means.

In view of these facts, and believing that, under present circumstances, the transfer of this institution to the fostering care and patronage of government will promote the highest interests of the Hawaiian people, we beg leave, through your Excellency, to submit to his Majesty's government for its consideration the following proposals, viz:

That the mission of the A. B. C. F. M. at the Sandwich Islands, acting for and in behalf of the said American Board of Commissioners of Foreign Missions, having its headquarters in Boston, state of Massachusetts, in the United States of America, relinquish all of their right, title, and interest to and in the seminary buildings located at Lahainaluna on the island of Maui, and known as the Mission Seminary, together with all of the dwelling houses at that station erected by the mission at the expense of the said A. B. C. F. M., for the use of the teachers in the said Mission Seminary; also the building erected by the mission as a printing office and bindery; also all lands pertaining to and granted for the use of the Missionary Seminary, and also all philosophical and other apparatus procured for the use of the said seminary, also the public library of the said institution, and to transfer the same to the Hawaiian government for its use,