Counsel for Parties.

It was in obedience to the order of the President, signified by the above indorsement of the Secretary of War, that the claimant was paid the aforesaid sum of $9195.27.

Upon the foregoing facts the conclusions of law were as follows:

1. That the claimant is not entitled to recover longevity pay.

2. That the defendants are not entitled, under their counterclaim, to recover the pay received by the claimant as a retired major, which accrued after the 4th of August, 1877, amounting to $14,390.35.

3. That the defendants are entitled, under their counterclaim, to recover of the claimant $9195.27, being the amount paid him for the time between January 16, 1873, and August 4, 1877. 19 C. Cl. 395.

From a judgment entered in accordance with these conclusions both parties appealed.

Mr. Martin F. Morris for Runkle. Mr. Donn Piatt and Mr. George W. McCrary each filed a brief for same.

Mr. Assistant Attorney General Howard for the United States submitted on the record.1

1 The record contained among other things the opinion of the Court of Claims delivered by DRAKE, C. J. The following extract from that opinion relates to the point decided by this court:

The proceedings of the court in the claimant's case were transmitted to the Secretary of War during the Presidency of Ulysses S. Grant, and on the 16th of January, 1873, the Secretary wrote thereon the order set forth in finding IV, and also in this opinion.

"The question is, whether by this order it appears that President Grant confirmed the sentence of the court. The claimant contends that it does not, and insists that the supposed confirmation was merely the act of the Secretary, and not that of the President, and so was no confirmation at all. It cannot be denied that this raises a question of no ordinary significance in the administration of military law; but we think it not of very great weight.

"In the first place, it is important to note that there is not, nor ever was, any law requiring the President's confirmation of the sentence of a courtmartial to be attested by his sign manual.

Opinion of the Court.

MR. CHIEF JUSTICE WAITE, after stating the case as above reported, delivered the opinion of the court.

We will first consider the second of the questions referred to the Court of Claims, namely:

"In the next place, referring to the act of August 7, 1789, 'to establish an Executive Department, to be denominated the Department of War,' 1 Stat. 49, substantially retained in § 216 of the Revised Statutes, we find that the Secretary of War is to perform and execute such duties as shall be enjoined on or intrusted to him by the President relative to the land or naval forces, and to conduct the business of the War Department in such manner as the President shall, from time to time, order and instruct.

"We need not discuss the relations established between the President and the Secretary of War by that act; for that matter was long ago settled by the Supreme Court of the United States, and we have only to refer to its rulings.

"In Wilcox v. Jackson, 13 Pet. 498, the question was whether an order of the Secretary of War directing certain public lands to be reserved for military purposes, was authorized under a statute declaring all lands exempted from preemption which are reserved from sale by order of the President. The Supreme Court held the order of the Secretary of War to be in law that of the President, and the opinion of the court uses this language:

'Although the immediate agent in requiring this reservation was the Secretary of War, yet we feel justified in presuming that it was done by the approbation and direction of the President. The President speaks and acts through the heads of the several Departments in relation to subjects which appertain to their respective duties. Both military posts and Indian affairs, including agencies, belong to the War Department. Hence we consider the act of the War Department in requiring this reservation to be made, as being in legal contemplation the act of the President; and consequently, that the reservation thus made was in legal effect a reservation made by order of the President, within the terms of the act of Congress.'

"In United States v. Eliason, 16 Pet. 291, the question was whether a regulation promulgated by the War Department was the act of the President, and the court said:

"The Secretary of War is the regular constitutional organ of the Presi dent for the administration of the military establishment of the nation; and rules and orders promulged through him must be received as the acts of the Executive, and, as such, be binding upon all within the sphere of his legal and constitutional authority.'

"After these decisions it cannot, in this court at least, be considered an open question, whether an approval of the proceedings and sentence of a court-martial, announced by an order of the Secretary of War, as in this case, is to be regarded as the act of the President.

Opinion of the Court.

"Were the proceedings and findings of said court-martial regular, and the sentence duly approved by the President of United States, as required by law?"

"It is not without use, in this connection, to refer to army precedents in like cases. We have obtained from the Department of Justice a copy of an unpublished opinion given June 6, 1877, by Attorney General Devens to President Hayes in regard to the case of the claimant; from which, with the permission of the head of that Department, we make the following extracts, embodying historical facts of interest and value:

'It is remarked by Major Runkle's counsel, in a printed argument filed with the papers, that "all of our earlier Presidents signed the approval of such sentences, and it is believed that it was only during the last Administration that the contrary practice prevailed."

'But I have before me several instances of the "contrary practice" happening prior to 1860, one of which occurred nearly half a century ago.

Thus, in the case of First Lieutenant William S. Colquhoun, 7th Infantry, who was tried by court-martial and sentenced to be cashiered in 1829, the determination of the President (which confirmed the sentence, except as to the disqualification from thereafter holding any office in the army) was signified through the Secretary of War, Mr. Eaton, in a statement signed by the latter, purporting to be "by command of the President." 'So, in the case of First Lieutenant R. M. Cochrane, 4th Infantry, who, in 1844, was sentenced to be cashiered by a court-martial, the determination of the President, confirming the sentence, was signified through the Secretary of War, Mr. Wilkins. Here the latter made known the action of the President by indorsing upon the record of the proceedings and signing the following brief statement: "The proceedings, finding, and sentence of the court are approved. Nov. 28, 1844."

'So in the case of Major George B. Crittenden, Mounted Riflemen, who was sentenced to be cashiered by a court-martial in 1848, the determination of the President, confirming the sentence, was announced through the Secretary of War, Mr. Marcy, by a statement indorsing upon the record, and signed by the latter, which reads thus: “The President approves of the proceedings and sentence in the case of Major Crittenden, and directs the proper order to be issued thereon."

So, in the case of Brevet Lieutenant-Colonel William R. Montgomery, major, 2d Infantry, who, in 1855, was sentenced by a court-martial to be dismissed the service, the determination of the President, confirming the sentence, was in like manner signified through the Secretary of War, Mr. Davis.

'So, in the case of First Lieutenant John N. Perkins, 1st Cavalry, who, in 1859, was sentenced by a court-martial to be cashiered, the action of the President, confirming the sentence, was in like manner signified through the Secretary of War, Mr. Floyd.

'I am informed by inquiry at the office of the Judge Advocate General

Opinion of the Court.

The 65th Article of War, 2 Stat. 367, c. 29, in force at the time of these proceedings, was as follows:

"Any general officer commanding an army, or colonel commanding a separate department, may appoint general courtsmartial, whenever necessary. But no sentence of a court

martial shall be carried into execution until after the whole proceedings shall have been laid before the officer ordering the same, or the officer commanding the troops for the time being; neither shall any sentence of a general court-martial, in the time of peace, extending to the loss of life, or the dismission of a commissioned officer, or which shall, either in time of peace or war, respect a general officer, be carried into execution, until after the whole proceedings shall have been transmitted to the Secretary of War, to be laid before the President of the United States, for his confirmation or disapproval, and orders, in the case. All other sentences may be confirmed and executed by the officer ordering the court to assemble, or the commanding officer, for the time being, as the case may be."

Thus it appears that the sentence of a general court-martial, in time of peace, to the effect that a commissioned officer be cashiered dismissed from service is inoperative until approved by the President. Before then it is interlocutory and inchoate only. Mills v. Martin, 19 Johns. 7, 30; Simmons on Courts-Martial, 6th ed., ch. XVII, p. 294.

A court-martial organized under the laws of the United States is a court of special and limited jurisdiction. It is called into existence for a special purpose and to perform a particular duty. When the object of its creation has been

that numerous instances have occurred since the case last mentioned, in which the determination of the President, confirming sentences of dismissal by court-martial, has been signified and attested in the same way.'

"We might go further and point to what seems to us to be incontrovertible internal evidence in Secretary Belknap's order of its expressing not his, but President Grant's decision; but this opinion has been extended to such length that we forbear to discuss that subject. Our unhesitating judgment is, that the finding and sentence of the court were legally confirmed by President Grant, and that from the date of the official promulga tion of their confirmation the claimant ceased to be an officer of the army."

Opinion of the Court.

accomplished it is dissolved. 3 Greenl. Ev. § 470; Brooks v. Adams, 11 Pick. 441, 442; Mills v. Martin, supra; Duffield v. Smith, 3 S. & R. 590, 599. Such also is the effect of the decision of this court in Wise v. Withers, 3 Cranch, 331, which, according to the interpretation given it by Chief Justice Marshall in Ex parte Watkins, 3 Pet. 193, 207, ranked a courtmartial as "one of those inferior courts of limited jurisdiction whose judgments may be questioned collaterally." To give effect to its sentences it must appear affirmatively and unequivocally that the court was legally constituted; that it had jurisdiction; that all the statutory regulations governing its proceedings had been complied with, and that its sentence was conformable to law. Dynes v. Hoover, 20 How. 65, 80; Mills v. Martin, 19 Johns. 33. There are no presumptions in its favor so far as these matters are concerned. As to them, the rule announced by Chief Justice Marshall in Brown v. Keene, 8 Pet. 112, 115, in respect to averments of jurisdiction in the courts of the United States, applies. His language is: “The decisions of this court require, that averment of jurisdiction shall be positive-that the declaration shall state expressly the fact on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred, argumentatively, from its averments." All this is equally true of the proceedings of courts-martial. Their authority is statutory, and the statute under which they proceed must be followed throughout. The facts necessary to show their jurisdiction and that their sentences were conformable to law must be stated positively; and it is not enough that they may be inferred argumentatively.

As the sentence now under consideration involved the dismissal of Runkle from the army, it could not become operative until approved by the President, after the whole proceedings of the court-martial had been laid before him. The important question is, therefore, whether that approval has been positively shown.

The Court of Claims has found as a fact in the case that the "proceedings, findings, and sentence of said court-martial were transmitted to the Secretary of War," but it has not