# Smith v. Whitney

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United States Supreme Court
116 U.S. 167
Smith v. Whitney
Argued: January 4, 1886. ---
This was a petition, filed September 21, 1885, praying the supreme court of the District of Columbia to issue a writ of prohibition to the secretary of the navy, and to a general court-martial of naval officers convened by his order of June 25, 1885, to try the petitioner, a pay inspector in the navy, and by appointment of the president, confirmed by the senate, of the date of June 27, 1882, 'chief of the bureau of provisions and clothing and pay-master general in the department of the navy, with the relative rank of commodore,' upon certain charges and specifications, a copy of which was made part of the petition.
The first of those charges was 'scandalous conduct tending to the destruction of good morals,' under which were 14 specifications, alleging that 'the said Joseph A. Smith, then being a pay inspector in the United States navy, and having been therefore, as such officer of the navy, duly appointed chief of the bureau of provisions and clothing, with the title of pay-master general, in the department of the navy,' and being responsible for the proper and reputable administration thereof, and it being his duty to protect the interests of the government in the making of contracts for supplies for the navy, did various acts, which were set forth in different forms and with much detail, but the substance of which was that he enlarged existing contracts so as to include at the contract price additional supplies not required by the necessities of the service, without consulting the secretary of the navy, or the sureties on the contractor's bond, or giving any opportunity for competition, and, when the market was falling, extended the time of delivery of supplies contracted for, thereby necessitating the acceptance of supplies of an inferior quality, falsified a copy of a contract, and thereby enabled the contractor to obtain payment at a place other than that required by the contract; and, by directions and instructions to pay-officers, caused to be paid claims which had been refused by other pay-officers, and which, as he knew, had been declared illegal by the accounting officials of the treasury; and by so causing pay-officers to pay these claims, and to pay them out of appropriations for years other than those in which the contracts were made, greatly embarrassed those officers in the performance of their duties; and thereby willfully and knowingly, in disregard of his duties and responsibilities as chief of bureau, subordinated the interests of the government to those of the contractors, in violation of law, and 'to the great scandal and disgrace of the service, and the injury of the United States.'
The second charge was 'culpable inefficiency in the performance of duty,' under which were four specifications, alleging that he failed in his duty in not obliging contractors to comply with the terms of their contracts, and in allowing deliveries to be made after the time for delivery had expired; and, also, in purchasing more supplies than the current needs of the navy required, and in purchasing unfit supplies, and in not affording due opportunity for competition.
In the application for a writ of prohibition the petitioner alleged that, immediately upon the organization of the court-martial, he objected that it had no jurisdiction of him, or of the charges and specifications against him. or of the subject-matter contained in them, or any part thereof; but the court-martial overruled all his objections to its jurisdiction, and proceeded to hear evidence on the charges, and to try him thereon. He further alleged that none of the charges or specifications in any degree arose out of or were involved in any case arising in the land or naval forces of the United States, or in the militia, but all, as appeared on their face, pertained exclusively to duties required of and performed by him in the exercise of a purely civil office, and under a civil commission; that none of the specifications charged him with the violation of any law of the United States, or of any rule of procedure in the navy department, or of any order of the secretary of the navy; that each of the acts complained of had been approved by the late secretary of the navy in the lawful exercise of his discretionary power over the subject, and that the exercise of his discretion could not be reviewed by his successor, or by a court-martial; that throughout the trial the petitioner insisted on his objections to the jurisdiction; that after the conclusion of the testimony and arguments the court-martial went into secret session, and excluded him and his counsel from its presence, and, as he was informed and believed, rendered some judgment adverse to him, and submitted it to the secretary of the navy for his approval, but it had not been approved; that all the proceedings at the trial, with the finding and judgment of the court, were made up and signed by the judge advocate, and returned to the exclusive custody of the secretary of the navy, and the court discontinued its sessions, and adjourned without day; that afterwards the secretary of the navy made an order, the terms of which were unknown to the petitioner, directing the court-martial to reconvene on September 25, 1885, and to take additional action in the matter of the charges and specifications and evidence submitted to it as aforesaid; that it was about to reconvene accordingly, and, without peritting the presence of the petitioner or his counsel, to reconsider the evidence and the principles of law involved in his trial, and to re-examine and readjudge his case; that the proceedings about to be taken by the court-martial were not only unauthorized for want of jurisdiction, but would deprive him of the right of trial by jury, and put him twice in jeopardy for the same offense, in violation of the constitution of the United States; and that he was without remedy except by the writ of prohibition.
On September 23d the petitioner moved for an order upon the defendants to show cause why a writ of prohibition should not issue as prayed for; and it was ordered that the petition be entertained and certified for hearing in the first instance to the court in general term.
On September 24th the secretary of the navy filed a plea averring that the court ought not to hear or take further cognizance of the petition and proceedings because their object and purpose were 'to prohibit and restrain him from the exercise of powers and duties appertaining to his said office of secretary of the department of the navy, whereas it is beyond the jurisdiction of this court, and the judicial power of the United States, to restrain or otherwise intermeddle with the exercise of the said powers and duties which belong to and form a part of the political powers and duties of the government of the United States.' On the same day the members of the court-martial filed a plea and answer, in which they 'say that they are advised that this court has no jurisdiction to arrest, by writ of prohibition, any proceeding they may take in the court-martial referred to in the said petition;' and 'not waiving in anywise, but insisting on their jurisdictional exception or plea, answering' admitted that the petitioner pleaded to the jurisdiction of the court-martial, and that his plea was overruled; but alleged that he was subject to its jurisdiction, and that there was nothing in the legislation of congress creating the office of pay-master general of the navy, manifesting an intention to withdraw the incumbent of that position from amenability to a court-martial for offenses committed while exercising the same; that the first charge and the specifications pursuant thereto were founded on the twenty-second of the articles for the government of the navy, contained in section 1924 of the Revised Statutes, and on section 127 of the orders regulations, and instructions for the administration of law and justice in the United States navy, which prescribes 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;' and the second charge and the specifications pursuant thereto were founded on the ninth paragraph of the eighth article for the government of the navy; that the question whether the acts and omissions charged against the petitioner were offenses was a matter for the exclusive decision of the court-martial; and that the court-martial did not and could not adjourn itself without day, but, as appeared by orders, copies of which were produced, was, by order of the secretary of the navy of August 11th, 'adjourned until further orders,' and, by his order of September 16th, directed to reassemble on September 25th; and concluded by praying to be dismissed with costs. On September 25th the petitioner filed a replication in which he 'joins issue with the defendants upon the return and answer filed to the petition for the writ of prohibition;' and upon a hearing in general term the court entered the following judgment: 'The court being of opinion that it has not jurisdiction of the matter complained of, it is therefore considered that the petition be and it is hereby dismissed with costs, to be taxed by the clerk.' The petitioner in open court prayed and was allowed an appeal from that judgment, and also sued out a writ of error to reverse it.
Jeff Chandler and Eppa Hunton, for appellant and plaintiff in error.
Asst. Atty. Gen. Maury, for appellees and defendants in error.
GRAY, J.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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