#### GEORGE HERBERT MELVIN v. THE UNITED STATES.

[No. 30095.

Decided February 28, 1910.]

*On the*Proofs,

A midshipman at the Naval Academy is court-martialed, convicted, and dismissed from the naval service for “ *causing certain midshipmen of the fourth class to stand on their heads, to hang from a locker, and to do a physical exercise known as the*‘ *sixteenth.’ ”*He now challenges the jurisdiction of the court-martial and sues for pay and allowances from the day of his dismissal.

I. Where the proceedings and sentence of a court-martial are brought in issue the action of a civil court is limited to an inquiry as to the constitution, jurisdiction, and statutory proceedings of the tribunal.

II. A general act does not necessarily repeal a prior act unless there be some language expressly doing so or an irreconcilable re-pugancy between the two acts.

*214III. Tlie *Act 23d June, 187Jf*(IS Stat. L., p. 203) providing for tlie court-martialing of cadet midshipmen at the Naval Academy is not repealed by .the *Act 2d March, 1895*(28 Stat. L., p. 838) which provides that sentences of suspension and dismissal approved by the superintendent, “ *shall not he carried into effect until confirmed hy the President.”*

IV. The *Act 3d March, 1903*(32 Stat. L., p. 1198) provides that the superintendent of the Naval Academy shall make such rules “ *as will effectually prevent the practice of hazing,”*and that a “ *cadet guilty of participating in or encouraging or countenancing such practice shall he expelled from the academy.”*Hazing has such a well-known meaning that it need not be defined by rules under the statute.

*The Reporters'1*statement of tbe case:

Tbe following are tbe facts of this case as found by tbe court: •

I. On the 13th of June, 1904, tbe claimant was duly appointed a midshipman at the United States Naval Academy and entered upon and performed his duties as such midshipman until dismissed, as hereafter shown, on the 6th of February, 1906. At the time of said dismissal his pay was $500 per annum, and his allowances were 30 cents per day, being commutation price of the navy ration; and there remains due to him for such pay and allowances the sum of $1,217.32 unless he was validly dismissed by the sentence of the court-martial hereinafter set forth.

II. On December 27, 1905, the Superintendent of the United States Naval Academy ordered a general court-martial to convene at said academy for the trial of such persons as might be lawfully brought before it. Thereafter, on January 26, 1906, the claimant was brought before said court-martial for trial on the following:

“ Charge: Hazing in violation of an act of Congress approved June 23, 1874.”

The specifications of this charge were: Causing certain midshipmen of the fourth class to stand on their heads, hang from a locker, and do the physical exercise known as the “ sixteenth; ” also the use of abusive language to one of said midshipmen. The court-martial, after consideration of the evidence, found all of-these specifications “proved” except *215the specification of using abusive language, which they found “ not proved; ” and they found the claimant “ guilty ” of the •charge and recommended that he be dismissed from the United States Naval Academy. Said proceedings, findings, and recommendation were approved by the superintendent of the academy on February 1, 1906. On February 6, 1906, the Secretary of the Navy dismissed the claimant from the United States Naval Academy and the naval service pursuant to such findings, recommendation, and approval.

III. Said sentence of dismissal of the claimant was never •confirmed by the President of the United States in accordance with the provisions of the act of March 12, 1895.

IV: At the time of the trial of the claimant by court-martial and of the findings and recommendation of said court-martial against the claimant and the dismissal of the claimant based .thereon, as set forth in the foregoing findings, there were not, and had not been, any rules made by the Superintendent, of the Naval Academy, approved by the Secretary of the Navy Department, relating to the practice of hazing, as is required by the act of March 3, 1903, nor was there at the time, nor had there been, any definition of the offense of hazing at the said Naval Academy published by said superintendent or from any other source, as is required by said statute by necessary implication.

*Mr. Louis A. Pradt*for the claimant. *Mr. George Hiram Mann*was on the brief.

*Mr. Frederick De O. Faust*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

Booth, J.,

delivered the opinion of the court:

George Herbert Melvin, the claimant herein, was on June 13, 1904, duly appointed a midshipman at the United States Naval Academy. On February 6, 1906, the claimant was dismissed from the academy and from the naval service of the United States. Claimant’s dismissal was the result of a charge of hazing, preferred against him by the superintendent of the academy. The specifications, four in number, Avere: Causing certain midshipmen of the fourth class to stand on their heads, to hang from a locker, to do a physical *216exercise known as the “sixteenth,” and the use of abusive language to one of said midshipmen. A court-martial, • assembled under the act of June 23, 1874, found all the specifications “ proved ” except the last, and recommended claimant’s dismissal from the academy. The claimant challenges the jurisdiction of the court-martial and sues for the pay and allowances due a midshipman from the date of his dismissal to the time of filing his petition in this cause.

Civil courts are so limited in matters of complaint against the proceedings and sentence of courts-martial that the issue in such cases is narrowed to an inquiry as to the constitution, jurisdiction, and statutory proceeding of the tribunal. *(McClaughry*v. Deming, 106 U. S., 49.)

Claimant’s right to a judgment rests upon the contention that the act of June 23, 1874, was repealed by the act of March 2, 1895, and both the foregoing statutes amended by the act of March 3, 1903.

Chapter 453 of the act of June 23, 1874 (18 Stat. L., 203), reads as follows:-

> “ In all cases Avhen it shall come to the knowledge of the Superintendent of the Naval Academy at Annapolis that any cadet midshipman or cadet engineer has been guilty of the offense commonly known as hazing it shall be the duty of said superintendent to order a court-martial, composed of not less than three commissioned officers, who shall minutely examine into all of the facts and circumstances of the case and make a finding thereon; and any cadet midshipman or cadet engineer found guilty of said offense by said court shall, upon recommendation of said court, be dismissed; and such finding, when approved by said superintendent, shall be final and the cadet so dismissed from said Naval Academy shall be forever ineligible to reappointment to said Naval Academy.”

The act of March 2, 1895 (28 Stat. L., 838), reads as follows:

> “The Secretary of the Navy shall have power to convene general courts-martial for the trial of naval cadets, subject to the same limitations and conditions now existing as to other general courts-martial, and to approve the proceedings and execute the sentences of such courts, except the sentences of suspension and dismissal, which, after having been approved by the superintendent, shall not be carried into effect until confirmed by the President.” *

*217There is no language in the act of March 2, 1895, indicating an intent to supplant the prior statute of June 23, 1874. It has been conceded — in fact, is elementary — that the general principle to be applied by the courts in the construction of statutes is that a general act does not necessarily repeal a prior particular act, unless there is some language expressly doing so or an irreconcilable repugnancy in the two acts standing together. Repeals by necessary implication are not favored in the law, and courts are exceedingly reluctant to nullify a legislative enactment by a subsequent statute wherein the intent so to do is doubtful and ambiguous. The act of June 23', 1874, being the first legislative expression as to the offense of hazing, does by its terms seem harsh and summary. The Congress was dealing with an offense which through successive generations had developed into a code of cruel practices, resulting in personal degradation and inhuman treatment. The enforced discipline of the Naval Academy demanded its eradication and, because of its stealthy character, vested unusual power and authority in' the superintendent of the academy to suppress it.

The act of March 2, 1895, is more general in character. It extends to the Secretary of the Navy concurrent authority to intervene in cases of hazing at the academy and brings courts-martial respecting offenses committed by naval cadets within the law governing all courts-martial. The clause of the statute respecting the enforcement of the sentences of suspension and dismissal, which shall not be effective until confirmed by the President, is insufficient to establish an irreconcilable repugnancy. The foregoing statute is comprehensive, designed to embrace any infraction of military discipline cognizable by courts-martial. Congress very wisely prescribed presidential review and approval, especially so as respects separation from the military service for offenses wherein there may be extenuating circumstances and cause for mitigation of punishment. The statute is not primarily intended to cover a particular offense of an aggravated character, and in the absence of words indicating an express intention to repeal the act of June 23, 1874, can not be so construed.

*218As to the authority of the President to dismiss naval cadets, see *Weller*v. *United States*(41 C. Cls., 324).

The act of March 3, 1903 (32 Stat. L., 1198, ch. 1010), is as follows:

> “ That the Superintendent of the Naval Academy shall make such rules, to be approved by the Secretary of the Navy, as will effectually prevent the practice of hazing; and any cadet found guilty of participating in or encouraging or countenancing such practice shall be summarily expelled from the academy, and shall not thereafter be appointed to the corps of cadets or be eligible for appointment as a commissioned officer in the Army or Navy or Marine Corps until two years after the graduation of the class of which he was a member.”

The contention put forward under the above act is predicated upon the absence of rules to prevent the practice of hazing, i. e., that the requirement of rules to prevent hazing necessarily required a rule defining hazing; that hazing is not an offense known to the common or statutory law, and hence only exists as defined by the rules of the Naval Academy. The language of the act- of June 23, 1874, recognized such an offense as hazing and visited extreme penalties for its practice. The court-marital which tried the claimant specified the particular offense he had committed. The act of March 3, 1903, is precautionary, and it can hardly be said that the superintendent in order to prevent should enter into minute detail as to what constitutes hazing. If, perchance, he should omit from the rules prescribed sorne unseemly act committed against the person of a fourth-class man commonly known as “ hazing,” would it preclude punishment therefor because not appearing among the proscriptions of the superintendent?

Hazing has a well-defined meaning; the term is not obscure, and the courts-marital under the law are to determine the question of its commission.

We are unable to discover any inconsistency in the statutes governing this controversy, and the petition is dismissed.