Mullan v. United States (140 U.S. 240)

Subsequently, April 30, 1883, Rear-Admiral Pierce Crosby, who had then assumed command of the United States squadron on the Asiatic station, ordered a general court-martial to convene on board the flag-ship Richmond, at Hong-Kong, on the 2d of May, 1883, for the trial of Mullan. The court was composed of the following persons, any five of whom were empowered to act: Capt. William P. McCann, Capt. J. N. Miller, Lieut. Commanders G. B. D. Gleddin and E. S. Houseon, Lieuts. J. J. Hunker, S. M. Ackley, and B. Noyes. In the order convening the court it was stated that 'no other officers than those named can be assembied without manifest injury to the service.'

When the court convened the appellant filed the following protest: 'I object and protest against the organization of the court as a whole, and for the following reasons: In case of an officer to be tried by a court-martial, article 39 of the articles for the gver nment of the United States navy provides that in no case where it can be avoided without injury to the service shall more than one-half, exclusive of the president, be junior to the officer to be tried. In time of war it might frequently occur that officers, particularly those of the higher grades, could not be detached from duty, and ordered as members of a court, without great injury to the service; but in time of peace, when large numbers of officers are either off duty or performing such duty as for the necessary time might be done by a subordinate, no such emergency can possibly arise. It cannot be claimed by any one that a sufficient number of officers senior to myself could not have been ordered upon this court without injury to the service. I have no desire to reflect on any individual member of this court; but since my professional reputation, my personal character, and the prosperity and happiness of my family are at stake, I must emphatically protest against being tried by a court five of whose seven members are junior to myself.'

At the request of the appellant the court below found that at the time of the organization of the court there were 12 naval officers superior in rank to him on waiting orders in the city of Washington; and that Medical Inspector Stephen D. Kennedy, of the navy, was tried in November, 1883, on board the Hartford, at Panama, by a court composed of two commodores, two captains, one medical director, one medical inspector, and one commander; all of those officers being detailed for that special duty, and directed to proceed from New York to Panama, because deemed necessary by the navy department in view of the fact, of which it was informed by Rear-Admiral Hughes, that there were not in the squadron under his command the requisite number of officers of sufficient rank to organize a court-martial for the trial of Medical Inspector Kennedy.

The charges against appellant, for the trial of which the court at Hong-Kong was convened, were: Drunkenness on duty; improperly hazarding the vessel under his command, in consequence of which it was run upon a rock and lost; and neglect of duty. Being found guilty, he was sentenced to dismissal form the service. The sentence was approved and confirmed by the president on the 6th of July, 1883.

In December, 1883, the president nominated to the senate 'Lieutenant Commander Francis M. Green to be a commander in the navy, from the 7th of July, 1883, vice Commanders T. H. Eastman, retired, and Horace E. Mullan, dismissed.' The senate, January 18, 1884, advised and consented to this appointment of Green from the latter date, 'vice Commanders T. H. Eastman, retired, and Horace E. Mullan, dismissed;' and on the 23d of January, 1884, the president commissioned him to be a commander in the navy from the 7th of July, 1883.

The present action was brought by Mullan on the 3d of June, 1885, to recover pay as commander in the navy since the 6th of July, 1883. It proceeds upon the ground that this action of the court-martial was illegal and void, and that, notwithstanding its sentence of dismissal, he was at the time of bringing this action, and had been since the 6th of July, 1883, a commander in the navy, legally entitled to the compensation provided by law.

The court of claims found the above facts, and, holding as a conclusion of law that appellant was not entitled to recover, dismissed his petition. 23 Ct. Cl. 34.

John Goode and Eppa Hunton, for appellant

Asst. Atty. Gen. Maury, for the United States.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.