Supreme Court of United States.
*563 Mr. Holmes Conrad for plaintiff in error.
The Solicitor General for the United States.
*566 MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.
This is a writ of error brought directly to this court from the Circuit Court of the United States for the Southern District of New York, and the grounds upon which it is rested appear to be
First. That under the sixty-second Article of War, § 1342, Revised Statutes, which reads:
*567 "All crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing Articles of War, are to be taken cognizance of by a general or a regimental, garrison, or field officers' court-martial, according to the nature and degree of the offense, and punished at the discretion of such court,"
a court-martial has exclusive jurisdiction of the offenses charged herein, inasmuch as plaintiff in error was an officer of the United States army; and,
Second. That the case involved the construction or application of the Constitution of the United States, and that the constitutionality of a law of the United States was drawn in question because, as is alleged, § 2 of the act of July 7, 1898, is unconstitutional, in that it undertakes to delegate the power of legislation to the state legislatures.
1. It is well settled that the sixty-second Article of War does not vest, nor purport to vest, exclusive jurisdiction in courts-martial, and that civil courts have concurrent jurisdiction over all offenses committed by a military officer which may be punished by a court-martial under the provisions of that article.
The thirtieth section of the act of March 3, 1863, c. 75, 12 Stat. 736, provided that in time of war, insurrection or rebellion certain offenses, including murder, "shall be punishable by the sentence of a general court-martial or military commission, when committed by persons who are in the military service of the United States, and subject to the Articles of War; and the punishments for such offenqes qhall never be less than those inflicted by the laws of the State, Territory, or district in which they may have been committed."
In Coleman v. Tennessee, 97 U.S. 509, it was held that this statute did not confer upon courts-martial exclusive jurisdiction for the trial of the offenses mentioned.
In Grafton v. United States, 206 U.S. 333, 348, it was expressly declared that the jurisdiction of courts-martial is not *568 exclusive. Undoubtedly the general rule is that the jurisdiction of civil courts is concurrent as to offenses triable before courts-martial. See Opinion of Attorney-General Cushing, 6 Op. A.G. 413, 419; United States v. Clark, 31 Fed. Rep. 710.
And in the present case the language of article 62 and that of § 5438, Revised Statutes, and of § 2 of the act of July 7, 1898, demonstrates that it was the intention of Congress that offenses committed in violation of the latter statute should be punished by the civil courts; to say nothing of the fact that it was expressly provided in § 2, and prior laws, that conviction should be "in a Circuit or District Court of the United States for the district in which the offense was committed."
There is absolutely nothing in the first proposition.
2. This is equally so of the intimated constitutional point.
By § 3 of the act of March 3, 1825, c. 65, 4 Stat. 115, it was provided:
"That, if any offense shall be committed in any of the places aforesaid, the punishment of which offense is not specially provided for by any law of the United States, such offense shall, upon a conviction in any court of the United States having cognizance thereof, be liable to, and receive the same punishment as the laws of the State in which such fort, dockyard, navy yard, arsenal, armory, or magazine, or other place, ceded as aforesaid, is situated provided for the like offense when committed within the body of any county of such State."
In United States v. Paul, 6 Pet. 141, 143, coming here on certificate of division, it was held by this court, speaking by Chief Justice Marshall, that the effect of this section was "limited to the laws of the several States in force at the time of its enactment;" and it followed that by this act Congress adopted for the government of the designated places, under the exclusive jurisdiction and control of the United States, the criminal laws then existing in the several States within which such places were situated, in so far as said laws were not displaced by specific laws enacted by Congress.
Section 2 of the act of July 7, 1898, c. 576, 30 Stat. 717, was *569 to the same effect, and, moreover, by express language Congress adopted such punishment as "the laws of the State in which such place is situated now provide for the like offense." There is, plainly, no delegation to the States of authority in any way to change the criminal laws applicable to places over which the United States has jurisdiction.
We give below the legislation on the subject.[1]
*570 We are of opinion that the points attempted to be raised to justify jurisdiction are so unfounded in substance as to utterly fail of their purpose.
Writ of error dismissed for want of jurisdiction.
[1] On March 3, 1825, Congress passed, c. 65, 4 Stat. 115:
"Chap. LXV. An act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes.
"SEC. 3. That, if any offense shall be committed in any of the places aforesaid, the punishment of which offense is not specially provided for by any law of the United States, such offense shall, upon a conviction in any court of the United States having cognizance thereof, be liable to, and receive the same punishment as the laws of the State in which such fort, dockyard, navy yard, arsenal, armory, or magazine, or other place, ceded as aforesaid, is situated, provide for the like offense when committed within the body of any county of such State."
On April 5, 1866, Congress enacted the following, c. 24, 14 Stat. 13:
"Chap. XXIV. An act more effectually to provide for the punishment of certain crimes against the United States.
"SEC. 2. That if any offense shall be committed in any place which has been, or shall hereafter be, ceded to, and under the jurisdiction of the United States, which offense is not prohibited, or the punishment thereof is not specially provided for by any law of the United States, such offense shall, upon conviction in any court of the United States having cognizance thereof, be liable to, and receive the same punishment as the laws of the State in which such place is, or may be situated, now in force, provide for the like offense when committed within the jurisdiction of such State; and no subsequent repeal of any such State law shall affect any prosecution for such offense in any of the courts of the United States."
This act was carried forward as § 5391 of the Revised Statutes, as follows:
"SEC. 5391. If any offense be committed in any place which has been or may hereafter be, ceded to and under the jurisdiction of the United States, which offense is not prohibited, or the punishment thereof is not specially provided for by any law of the United States, such offense shall be liable to, and receive, the same punishment as the laws of the State in which such place is situated, now in force, provide for the like offense when committed within the jurisdiction of such State; and no subsequent repeal of any such State law shall affect any prosecution for such offense in any court of the United States."
The act of July 7, 1898, c. 576, 30 Stat. 717, upon the same subject, reads:
"SEC. 2. That when any offense is committed in any place, jurisdiction over which has been retained by the United States or ceded to it by a State, or which has been purchased with the consent of a State for the erection of a fort, magazine, arsenal, dockyard, or other needful building or structure, the punishment for which offense is not provided for by any law of the United States, the person committing such offense shall, upon conviction in the Circuit or District Court of the United States for the district in which the offense was committed, be liable to and receive the same punishment as the laws of the State in which such place is situated now provide for the like offense when committed within the jurisdiction of such State, and the said courts are hereby vested with jurisdiction for such purpose; and no subsequent repeal of any such State law shall affect any such prosecution."
This section appears in the act of Congress, approved March 4, 1909, c. 321, 35 Stat. 1145, modifying, amending and revising the penal laws of the United States, to become effective January 1, 1910, as follows:
"SEC. 289. Whoever, within the territorial limits of any State, organized Territory, or District, but within or upon any of the places now existing or hereafter reserved or acquired, described in section two hundred and seventy-two of this act, shall do or omit the doing of any act or thing which is not made penal by any law of Congress, but which if committed or omitted within the jurisdiction of the State, Territory or District in which such place is situated, by the laws thereof now in force would be penal, shall be deemed guilty of a like offense and be subject to a like punishment; and every such State, Territorial or District law shall, for the purposes of this section, continue in force, notwithstanding any subsequent repeal or amendment thereof by any such State, Territory or District."
