Evening star. [volume] (Washington, D.C.) 1854-1972, 1901-05-22
AWAITED WITH INTEREST
DECISION IN CASE OF BROWN
AGAINST SECRETARY OF WAR.
Affirming Judgmehtf of Justice Brad
ley, Diminishing Flea for Honorable
Discharge. From Army.

War Department officials and others con.
| nected with the army have been awaiting
with interest the opinion of the Court Of
Appeals in the case Of the United States OF
America upon the relation of Lewis E
Brown, appellant, against Elihu Root Sec
| rotary Of War. AS stated In The Star, the
Court of Appeals. In its opinion handed
down late yesterday afternoon, affirmed
the judgment of the lower court, Justice
Bradley. the ruling being against Brown.
The appeal was from judgment Of JUS
tfce Bradley, dismissing petition for writ
Of mandamus. Brown received a commits
sion, July I. 1898, as first lieutenant Of the
9th Regiment Of Volunteer Infantry. He
was brought to trial before a court-martial
convened at San Luis, Cuba, by order OF
General Wood, commanding the department
OF Santiago. The charge was conduct I'M
becoming an officer and a gentleman. with
specification that he gambled with enlisted
men Of his regiment In camp near San
Luis about October II. $685.
The court-martial found Lieut.. Brown
not guilty Of charge and specification and
reported the proceedings in due order to
the commanding general, and adjourned
sine die.
First Endorsement.
The first Endorsement upon the report Is
that Of Capt. H. K. Bailey, 9Th Infantry,
acting Judge advocate of the Department
of Santiago, under date December 1, 1898,
to the effect that the evidence reported is
conclusive of guilt, and the proceedings
should be returned for reconsideration of
the finding. further indorsemsrt shows
that return was made for reconsideration
by the court-martial by order of General
Wood. The court, December 6, 1885, recon-
vened, and having reconsidered the case
found Lieut.. Brown guilty Of charge and
specification, and sentenced him to be dis
missed the service
The regiment in which Lieut.. Brown had
belonged was regularly mustered out and
States at Camp Meade. Pa, May Is. 1899,
peace with Spain having been declared.
Lieut.. Brown claiming that having once
been acquitted by judgment of court-mar
tial the subsequent reconsideration and
conviction thereon was without authority
and void, averred that 1t was the duty of
the Secretary of War to muster Lieut..
Brown out Of the service, and that through
failure of such duty he Is unable to obtain
pay for the services rendered by him under
his appointment and has sustained damage.
The Court Of Appeals holds among other
things, that independently of the proceed
Browns dismissal, it being time of war.
was within the powers of the President.
he having authority to dismiss an officer
for any cause which in his judgment either
renders the officer unsuitable for, or whose
dismissal would promote, the public ser
vice
IAN that could be accomplished by a
Judgment in REALTORS favor says the
Court of Appeals in concluding its opinion,
which Was written by Mr.. Justice Shepard,
would be the expression of an opinion that
his dismissal fromit4 service in disgrace
was not within the bower of his command
ing general at the time. Such a iudg-
ment, compelling as1oertilicate Of honorable
discharge, might, as claimed. have the eff
feet Of indicating the character of the
Objects Served BY Court.
But courts do not sit for the vindication
of character save to the extent that the
same may be involved Ia or incidental to
the enforcement of some remedy for the
protection or vindiaation Of rights of per-
son or property.
1.-The United States Court Of Claims would
probably have Jurisdiction of action by
the relator to establish the validity Of his
claim to salary accruing after the date of
his dismissal. 81 'iF-st
1.-The maintenance of such an action
would necessarily involve the decision of
the single question sought to be adjudicated
here.
Assuming that such Jurisdiction exists
would furnish another reason for refusal
Of relief by way Of mandamus, for that
writ lies only In plain cases and where
there is no other legal remedy.
Notwithstanding any opinion in respect
of the validity of the proceeding of the
court-martiaf and for the reasons given
above, the judgment appealed from Will be
| affirmed. with COSTS