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decided: March 14, 1910.



Author: Fuller

[ 216 U.S. Page 566]

 MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.

This is a writ of error brought directly to this court from the Circuit Court of the United States for the Southern District of New York, and the grounds upon which it is rested appear to be --

First. That under the sixty-second Article of War, § 1342, Revised Statutes, which reads:

[ 216 U.S. Page 567]

     "All crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing Articles of War, are to be taken cognizance of by a general or a regimental, garrison, or field officers' court-martial, according to the nature and degree of the offense, and punished at the discretion of such court," a court-martial has exclusive jurisdiction of the offenses charged herein, inasmuch as plaintiff in error was an officer of the United States army; and,

Second. That the case involved the construction or application of the Constitution of the United States, and that the constitutionality of a law of the United States was drawn in question because, as is alleged, § 2 of the act of July 7, 1898, is unconstitutional, in that it undertakes to delegate the power of legislation to the state legislatures.

1. It is well settled that the sixty-second Article of War does not vest, nor purport to vest, exclusive jurisdiction in courts-martial, and that civil courts have concurrent jurisdiction over all offenses committed by a military officer which may be punished by a court-martial under the provisions of that article.

The thirtieth section of the act of March 3, 1863, c. 75, 12 Stat. 736, provided that in time of war, insurrection or rebellion certain offenses, including murder, "shall be punishable by the sentence of a general court-martial or military commission, when committed by persons who are in the military service of the United States, and subject to the Articles of War; and the punishments for such offenses shall never be less than those inflicted by the laws of the State, Territory, or district in which they may have been committed."

In Coleman v. Tennessee, 97 U.S. 509, it was held that this statute did not confer upon courts-martial exclusive jurisdiction for the trial of the offenses mentioned.

In Grafton v. United States, 206 U.S. 333, 348, it was expressly declared that the jurisdiction of courts-martial is not

[ 216 U.S. Page 568]

     exclusive. Undoubtedly the general rule is that the jurisdiction of civil courts is concurrent as to offenses triable before courts-martial. See Opinion of Attorney-General Cushing, 6 Op. A.G. 413, 419; United States v. Clark, 31 Fed. Rep. 710.

And in the present case the language of article 62 and that of § 5438, Revised Statutes, and of § 2 of the act of July 7, 1898, demonstrates that it was the intention of Congress that offenses committed in violation of the latter statute should be punished by the civil courts; to say nothing of the fact that it was expressly provided in § 2, and prior laws, that conviction should be " in a Circuit or District Court of the United States for the district in which the offense was committed."

There is absolutely nothing in the first proposition.

2. This is equally so of the intimated constitutional point.

By § 3 of the act of March 3, 1825, c. 65, 4 Stat. 115, it was provided:

"That, if any offense shall be committed in any of the places aforesaid, the punishment of which offense is not specially provided for by any law of the United States, such offense shall, upon a conviction in any court of the United States having cognizance thereof, be liable to, and receive the same punishment as the laws of the State in which such fort, dockyard, navy yard, arsenal, armory, or magazine, or other place, ceded as aforesaid, is situated provided for the like offense when committed within the body of any county of such State."

In United States v. Paul, 6 Pet. 141, 143, coming here on certificate of division, it was held by this court, speaking by Chief Justice Marshall, that the effect of this section was "limited to the laws of the several States in force at the time of its enactment;" and it followed that by this act Congress adopted for the government of the designated places, under the exclusive jurisdiction and control of the United States, the criminal laws then existing in the several States within which such places were situated, in so far as said laws were not displaced by specific laws enacted by Congress.

Section 2 of the act of July 7, 1898, c. 576, 30 Stat. 717, was

[ 216 U.S. Page 569]

     to the same effect, and, moreover, by express language Congress adopted such punishment as "the laws of the State in which such place is situated now provide for the like offense." There is, plainly, no delegation to the States of authority in any way to change the criminal laws applicable to places over which the United States has jurisdiction.

We give below the legislation on the subject.*fn1

[ 216 U.S. Page 570]

     We are of opinion that the points attempted to be raised to justify jurisdiction are so unfounded in substance as to utterly fail of their purpose.

Writ of error dismissed for want of jurisdiction.

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