So far as regards the time after June 15, 1877, the fact that Goldman was appointed by the president, by and with the advice and consent of the senate, a second lieutenant in the fifth cavalry, in the place of the appellant, from June 15, 1877, and was commissioned as such, and accepted and held the appointment, is a bar to the suit of the appellant. It was held by this court, in Blake v. U.S. 103 U.S. 227, that the president has the power to supersede or remove an officer of the army by the appointment of another in his place, by and with the advice and consent of the senate, and that such power was not withdrawn by the provision in section 5 of the act of July 13, 1866, c. 176, (14 St. at Large, 92,) now embodied in section 1229 of the Revised Statutes, that 'no officer in the military or naval service shall, in time of peace, be dismissed from service, except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof.' It was held that this provision did not restrict the power of the president, by and with the advice and consent of the senate, to displace officers of the army or navy, by the appointment of others in their places.
In regard to the rest of the time covered by the suit, it becomes necessary to decide the question raised as to the validity of the sentence of the court-martial. It is contended for the appellant that the court-martial had no jurisdiction to try him; that the fact that he made no objection to any member of the court was not a consent upon his part which conferred jurisdiction on the court-martial; and that the fact that Col. Merritt was prosecutor, witness, and judge rendered the proceedings of the court-martial void. The position is taken that, although there is no statute or regulation which forbids what was done in this case, the sentence of a court-martial in which one of the judges is prosecutor and witness is absolutely void, and that neither what the appellant said nor what he omitted to say, at the time, can cure the defect in the organization of the court.
That the court-martial, as a general court-martial, had cognizance of the charges made, and had jurisdiction of the person of the appellant, is not disputed. This being so, whatever irregularities or errors are alleged to have occurred in the proceedings, the sentence of dismissal must be held valid when it is questioned in this collateral way. Thompson v. Tolmie, 2 Pet. 157; Voorhees v. Bank of U.S. 10 Pet. 449; Cornett v. Williams, 20 Wall. 226, 249. This doctrine has been applied by this court to the judgment and sentence of a naval general court-martial, which was sought to be reviewed on a writ of habeas corpus. Ex parte Reed, 100 U.S. 13.
Where there is no law authorizing the court-martial, or where the statutory conditions as to the constitution or jurisdiction of the court are not observed, there is no tribunal authorized by law to render the judgment. Of that character are the authorities cited and relied on by the appellant; but they do not apply to the present case.
Under the foregoing views we express no opinion as to the propriety of the proceeding of the court-martial in the respects in which they are assailed.
The judgment of the court of claims is affirmed.
Mr. Justice FIELD did not sit in this case or take part in its decision.
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