:: books or from the course of their experience, to inform themselves. It would therefore be most illogical, to say nothing of the impediments to military discipline which would there by be interposed, to apply to the procedure of courts-martial those rules which are applicable to another and different course of practice." Port's Case, Perry's Oriental Cases, 414, 419. So in Martiny. Mott, 12 Wheat. 19, 85 [25 U. $. bk. 6, L. ed. 537, 542], Mr. Justice Story, delivering the opinion of this court, said that the law by which courts-martial were bound to execute their duties and to regulate their mode of proceeding, in the absence of positive enact ments, was "the general usage of the military service, or what may not unfitly be called the customary military law." The same view, as regarding naval courts-martial, was asserted and acted on by this court in Dynes v. Hoover, 20 How. 65, 82 [61 U. S. bk. 15, L. ed. 838, 845.] The material provisions of the Revised Statutes and of the Navy Regulations, affecting the nature of the office and duties of the petitioner, and the jurisdiction of the court-martial over him, are as follows: 4 "Art. 8. Such punishment as a court-martial may adjudge may be inflicted on any person in the Navy "First. Who is guilty of profane swearing, falsehood, drunkenness, gambling, fraud, theft or any other scandalous conduct tending to the destruction of good morals;" "Ninth. Or is negligent or careless in obeying orders, or culpably inefficient in the performance of duty. "Art. 22. All offenses committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished as a court-martial may direct." "Art. 23. All offenses committed by persons belonging to the navy while on shore shall be punished in the same manner as if they had been committed at sea." The Orders, Regulations and Instructions for the Administration of Law and Justice in the United States Navy, issued by the Secretary of the Navy under authority of the President in 1870, provide, in section 126, that when a charge "comes directly under any enactment, it should be set forth in the terms used therein;" and in section 127, that "when the offense is a disorder or neglect not specially provided for, it should be charged as 'scandalous conduct tending to the destruction of good morals."" By section 415 of the Revised Statutes "There shall be at the seat of Government an Executive Department, to be known as the Department of the Navy, and a Secretary of the Navy who By section 1547 of the Revised Statutes, Lall be the head thereof. By section 419 passed since the adoption of the Navy Regula [181] "The business of the Department of the Navy tions of 1870, "the orders, regulations and inshall be distributed in such manner as the Sec-structions issued by the Secretary of the Navy retary of the Navy shall judge to be expedient prior to July 14, 1862, with such alterations as a proper among the following bureaus," one he may since have adopted, with the approval of which is "Seventh. A Bureau of Provisions of the President, shall be recognized as the and Clothing." And by section 420 "All of Regulations of the Navy, subject to alterations the duties of the bureaus shall be performed adopted in the same manner. This gislative nder the authority of the Secretary of the recognition of the Navy Regulations of 1870 Navy, and their orders shall be considered as "must," as was said by Chief Justice Marshall ey snating from him and shall have force and of a similar recognition of the Army Regulations in the Act of April 24, 1816, chap. 69, § 9, 3 Stat. at L. 298, "be understood as giving to these regulations the sanction of the law." United States v. Maurice, 2 Brock. 96, 105; Ez parte Reed, 100 U. S. 13 [Bk. 25, L. ed. 588]. efect as such." sections By section 421 The chiefs of the several beraus in the Department of the Navy shall appointed by the President, by and with the advice and consent of the Senate, from the cases of officers mentioned in the next five respectively, or from officers having the relative rank of Captain in the staff corps of the navy, on the active list, and shall hold their es for the term of four years." By section The Chief of the Bureau of Provisions ard Clothing shall be appointed from the list of parmisters of the Navy of not less than ten By sections 1471, 1472, he all have the relative rank of commodiore e holding said position," and the title of master-General; and by section 1473, upon retired from that position by reason of ength of service, he shall have the relamark of commodore. Ly standing." " It is argued for the petitioner that his office of Paymaster-General and Chief of a Bureau in the Department of the Navy, under a distinct appointment by the President and confirmation by the Senate, is a separate office of a purely civil character; that the duties of that office are not military, but civil only, relating to the business of the Navy Department, performed under the authority of the Secretary of the Navy, who is exclusively a civil officer and, in case of a vacancy in the office of Chief of Bureau, or of his absence, to be performed by a deputy or chief clerk, who is also exclusively a civil officer; and therefore that a violation of those duties can be prosecuted in the civil courts only, and not by court-martial. On the other hand, it is argued that the peti on 178, in case of the death, resigna- er department. 10 of title 15 of the Revised Statutes, "Articles for the Government of the contains the following: pointment to that office gives him the relative 1824 The Navy of the United States any violation of those duties is triable and pun a. be governed by the following articles:" 156 U.S. ishable by naval court-martial. [182] The charges on which the court-martial was the time of that decision, has been retained in ordered to try the petitioner are drawn up in the existing article 22, before cited, substituting two aspects. The leading charge is for "scan- only, at the beginning, the word "offenses" for dalous conduct tending to the destruction of crimes," and, in describing the mode of pungood morals,” and various acts done by the pe-ishment, the words "as a court-martial may dititioner as Paymaster-General are set forth in rect," instead of "according to the laws and fourteen specifications under that charge. The customs in such cases at sea." As the article other charge is for "culpable inefficiency in the in its new form still applies only to offenses performance of duty," with four specifications, "not specified in the foregoing articles," the some of which, at least, allege, though in dif- alteration was evidently intended to change only ferent forms, acts set forth in the specifications the_rule of punishment, leaving within the juunder the first charge. risdiction of courts-martial cases not so specified, but recognized as military offenses by the It does not, therefore, appear to us impor ern military courts, the first charge should be considered as made under the concluding words of the first clause of article 8, punishing "profane swearing, falsehood, drunkenness, gamb ling, theft or any other scandalous conduct tending to the destruction of good morals;" or under article 22, punishing "all offenses committed by persons belonging to the Navy, which are not specified in the foregoing articles:" for in either view, as we have already seen, it should, under the Regulations of 1870, recognized and sanctioned by Congress, be charged as "scandalous conduct tending to the destruction of good morals." If the court-martial has jurisdiction of the principal charge and of some or all of the spec-usages of the naval service. ifications under it, the addition of the second charge with its specifications affords no ground tant to inquire whether, by the rules that gov for issuing a writ of prohibition. The evidence taken before the court-martial is not produced or relied upon by the petitioner. The question presented by the record before us is whether the court-martial should be prohibited from trying him on the charges and specifications laid before it; and the case comes within the rule stated by Chief Justice Shaw in Washburn v. Phillips, already cited: "Unless it appears upon the face of the proceedings that the court has no jurisdiction of any part of the subject matter of these charges, it is not a case for a prohibition." 2 Met. 299. There may indeed be cases in which two matters before the inferior court are so distinct that a writ of prohibition may go as to the one and not as to the other. But when the leading charge is within its jurisdiction, and the other charge, though varying in form, is for the same or similar acts, like a second count in an indictment, and the same sentence may be awarded on the first charge as upon both, a writ of prohibition should not issue. Enraght v. Penzance, 7 App. Cas. 240. The essential point to be determined, therefore, is whether the court-martial has jurisdiction of the first charge; and whether it would have jurisdiction of the second, if that were the only one, is immaterial. In Dynes v. Hoover, above cited, this court held that the jurisdiction of courts-martial, under the Articles for the Government of the Navy established by Congress, was not limited to the crimes defined or specified in those articles, but extended to any offense which, by a fair deduction from the definition, Congress meant to subject to punishment, being "one of a minor degree, of kindred character, which has already been recognized to be such by the practice of courts-martial in the army and navy services of nations, and by those functionaries in different nations to whom has been confided a revising power over the sentences of courtsmartial;" or which, though not included, in [183] terms or by construction, within the definition, came within "a comprehensive enactment, such as the 32d article of the Rules for the Government of the Navy; which means that courtsmartial have jurisdiction of such crimes as are not specified, but which have been recognized to be crimes and offenses by the usages in the navy of all nations, and that they shall be punished according to the laws and customs of the sea." 20 How. 82 [61 U. S. bk. 15, L. ed. 845]. The 32d of the Articles for the Government of the Navy, established by the Act of April 23, 1800, chap. 33, 2 Stat. at L. 49, in force at Under every system of military law for the government of either land or naval forces, the jurisdiction of courts-martial extends to the trial and punishment of acts of military or naval officers which tend to bring disgrace and reproach upon the service of which they are members, whether those acts are done in the performance of military duties, or in a civil position, or in a social relation, or in private busi ness. Two cases, often cited in books on military law, show that acts having no relation to the public service, military or civil, except so far as they tend to bring disgrace and reproach upon the former-such as making an unfounded claim for the price of a horse, or attempting to seduce a brother officer's wife during his illness-may properly be prosecuted before a court-martial, under an articie of war punishing "scandalous and infamous conduct unbecoming an officer and a gentleman;" for the sole ground on which the sentence was disapproved, by the King in the one case and by the Governor-General of India in the other, was that the court-martial while finding the facts proved, expressly negatived scandalous and infamous conduct, and thereby in effect acquitted the defendant of the charge. 2 McArthur, CourtsMartial, 4th ed. 298; Hough, Precedents in Military Law, 238; Samuel, Military Law, 650-652; Simmons, Courts-Martial, 4th ed. 418-420; De Hart, Courts-Martial, 375–377. In a third case, a lieutenant in the Army was tried in England by a general court-martial for conduct on board ship while coming home from India as a private passenger on leave of absence from his regiment for two years. The charge was that being a passenger on board the ship Cæsar on her voyage from Calcutta to England, he was accused of stealing property of one Ross, his servant; and that the officers and passengers of the ship, after inquiring into the accusation, expelled him from their table and HEALY V. JOLIET AND CHICAGO R. R. Co. 191, 192 society during the rest of the voyage; yet that | Regulations of 1870, §§ 260-265, the court-martial could only be dissolved by the Secretary of the Navy, and might, at any time before he had dissolved it, be lawfully reconvened by him to reconsider its proceedings. Ex parte Reed, 100 U. S. 13 [Bk. 25, L. ed. 538]. be, "under circumstances so degrading and disgraceful to him, neither then nor at any time afterwards took any measures as became an officer and a gentleman to vindicate his honor and reputation; all such conduct as aforesaid being to the prejudice of good order and military discipline." Before and at the trial, he objected that the charge against him did not, expressly or constructively, impute any military offense, or infraction of any of the Articles of War, or any positive act of misconduct or neglect, to the prejudice of good order and military discipline: or state any fact which, if true, subJected him to be arraigned and tried as a military officer. But the court-martial proceeded with the trial, found him "guilty of the whole of the charge produced against him, in breach of the Articles of War, and sentenced him to be dismissed the service, and added "that it has considered the charge produced against the prisoner entirely in a military point of view, as affecting the good order and discipline of the Army; and that it does not mean by its sentence to offer any opinion as to the original charge of theft, of which the prisoner was accused by the man Ross." The sentence was approved by the King, and carried into execution, and for that reason the Court of King's Bench denied a writ of prohibition. Lord Denman, in delivering judgment, said that the court did not think it Decessary to consider whether the charge was so framed as to bring the party within the Ar To order a writ of prohibition to issue in the This we are not prepared to do, being clearly James H. McKenney, Clerk, Sup. Court, U.S. tacles of War; but that it agreed with Lord ROBERT W. HEALY ET AL., Piffs. in Err., V. to expect the same precision in a charge brought JOLIET AND CHICAGO R. R. CO. AND 606, 644. (See S. C. Reporter's ed. 191, 192.) The Healy Slough is not a navigable stream at the point where it is crossed by the bridge maintained by the Chicago and Alton Railroad ComArgued Dec. 16, 17, 1885. Decided Jan. 4, 1886. [No. 97.] pany. Coder the sixty-first of the Articles of War references to precedents: While the act of Illinois. The history and facts of the case sufficiently appear in the opinion of the court. Mr. Samuel F. Rice, for plaintiffs in error. Mr. Justice Miller delivered the opinion of the court: This is a writ of error to the Supreme Court of Illinois. charged will more usually have been committed | being the first case of an application to NOTE.-Navigable waters-what are, of the United it hardly necessary to add that by the Navy bk. 22, 391, note. 116 C. S [191] [191] [192] gard to which plaintiffs suffer special damage | WILLIAM G. FORD, Admr. of JOHN G. [210] as owners of certain real estate situated above ROBINSON, Deceased, Appt., v. UNITED STATES. (See S. C. Reporter's ed. 213-218.) actions. It is alleged that this slough, at the point where the bridge was built, was a navigable Court of claims—jurisdiction—limitation of water of the United States, in the navigation of which plaintiffs had especial interest, and that it was navigable from the Chicago River up to and beyond the lots of plaintiffs, and that this navigability was seriously impaired by the bridge of defendants. The answer denied that the slough was a navigable stream, and asserted authority under the charter of the Joliet and Chicago Railroad Company to build the bridge as had been done. Much testimony was taken as to the nature and character of the slough in reference to its navigability; and on hearing, the Circuit Court of Cook County dismissed the bill. An appeal was taken to the Appellate Court of the First Judicial District of the State, which reversed the judgment of the circuit court and granted relief against the bridge as a nuisance. On further appeal to the supreme court of the State, the judgment of the appellate court was reversed, and the order of the circuit court dismissing the bill was affirmed. It appears from the opinions delivered in the appellate court and in the supreme court, both of which are found in the record, that there was no difference between them on any question of law, but that they differed on the question whether the slough was in fact a public navigable water at the time the bridge was built over it. The court of appeals says: "Whether the Healy Slough is navigable in such sense as to constitute it a common highway must depend upon its capabilities, in its natural state and ordinary volume of water, of being utilized for purposes of commerce or transportation. This presents a mere question of fact to be determined by the evidence in the record." On this evidence that court held that in its natural state the slough was a navigable highway for the public. The supreme court says in its opinion: "The question raised may be treated simply as a question of fact, viz: is the body of water spanned by the railroad bridge navigable in the sense of that term as used in the law? We think it is not." On this question of disputed tact, so far as we have any right to inquire into it under this writ of error, we concur in the opinion held by the supreme court, and by the circuit court, and do not deem it necessary to set out in this opinion a comparison or examination of the evidence, which is voluminous, as it can serve no good purpose. The clause of section 1059, R. S., which invests the APPEAL from the Court of Claims. Messrs. Gilbert Moyers and George S. The construction which gives effect to the statute must prevail over that which gives no effect and is without force. Smith, Com. 671, § 527; Dwarris, Stat. 144, & 12, Sedgwick. Stat. 200; Ogden v. Strong, 2 Paine, 584; People v. Draper, 15 N. Y. 532; Commonwealth v. Alger, 7 Cush. 53; People v. Burnes, 5 Mich. 114. This statute was designed to revive a jurisdiction which by the lapse of time had ceased to exist. A remedial statute must be so construed as not to defeat the object for which it was enacted. Sedg. Stat. 193; Cook v. Hamilton Co. 6 McL. 112; United States v. Coombs, 12 Pet. 72 (37 U. S. bk. 9, L. ed. 1004); Whitney v. Em mett, 1 Baldw. 303; United States v. Morris, 14 Pet. 464 (39 U. S. bk. 10, L. ed. 543). Mr. A. H. Garland, Atty-Gen., for appellee. Mr. Justice Harlan delivered the opinion [213] of the court: By resolution of the Senate of the United States adopted on the 23d of February, 1885, a bill pending before that body for the relief of William G. Ford, administrator of John G. Robinson, deceased, was referred "in accordance with the provisions of article 1 of section 1059 of the Revised Statutes, to the Court of Claims, together with the vouchers, papers, proofs and documents appertaining thereto." The bill to which the resolution referred was as follows: "A bill for the relief of William G. Ford, administrator of John G. Robinson, deceased. "Be it enacted, by the Senate and House of Representatives of the United States of America in Congress assembled, That the claim of William G. Ford, administrator of John G. Robinson, deceased, for the interests of the American legatees of the said Robinson, which were not James H. McKenney, Clerk, Sup. Court, U.S. provided for in the award of the mixed com The decree of the Supreme Court of Illinois is affirmed. True copy. Test: mission under the Treaty of Washington of " commission in the said case, as though taken | ferred to it by either House of Congress. * * * The petition of the claimant was filed in the In the court of claims the United States By section 1059 of the Revised Statutes the court of claims has jurisdiction to hear and determine the following, among other matters: First, all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the Government of the United States, and all claims which may be re Fourth. Of all claims for the proceeds of captured or abandoned property, as provided by the Act of March 12, 1863, chap. 120, entitled 'An Act to Provide for the Collection of Abandoned Property, and for the Prevention of Frauds in Insurrectionary Districts within the United States,' or by the Act of July 2, 1864, chap. 225, being an Act in addition thereto; Provided, That the remedy given in cases of seizure under the said Acts, by preferring claim in the Court of Claims, shall be exclusive, precluding the owner of any property taken by agents of the Treasury Department as abandoned or captured property in virtue or under color of said Acts, from suit at common law, or any other mode of redress whatever, before any court other than said court of claims; Provided, also, That the jurisdiction of the court of claims shall not extend to any claim against the United States growing out of the destruction or appropriation of or damage to property by the army or navy engaged in the suppression of the rebellion." 18 Stat. at L. 318, chap. 80. The Act of March 12, 1863, providing for the collection and disposition of captured or abandoned property, permits any person claiming to have been the owner of any such property, "at any time within two years after the suppression of the rebellion," to "prefer his claim to the proceeds thereof in the court of claims." 12 Stat. at L. 820. Section 1069 provides that "Every claim against the United States, cognizable by the court of claims, shall be forever barred, unless the petition setting forth a statement thereof is filed in the court or transmitted to it by the secretary of the Senate, or the clerk of the House of Representatives, as provided by law, within six years after the claim first accrues; Provided, That the claims of married women first accrued during marriage; of persons under the age of twenty-one years first accrued during minority; and of idiots, lunatics, insane persons and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred, if the petition be filed in the court, or transmitted, as aforesaid, within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively." 12 Stat. at L. 767, chap. 92. The assignments of error assume that the reference by the Senate to the court of claims, of the bill before that body for the relief of claimant, had the effect to invest that court with full jurisdiction to hear and determine his claim, relieved from any bar arising from limitation, whether the limitation of six years prescribed by section 1069 of the Revised Statutes (which is brought forward from the Act of March 3, 1863, amendatory of the Act of 1855, establishing the Court of Claims), or that of two years, established by the Captured and Abandoned Property Act of March 12, 1863. The statutes regulating the jurisdiction of the court of claims do not sustain this position. It is undoubtedly within the power of Congress to place claims referred to that court by the Senate or by the House of Representatives, on a better footing than other claims, by providing that they may be determined upon their merits, [216] |