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consolidation the powers of the new company did not pass to it by transmission from its constituents, but resulted from a new legislative grant, that could not transcend the constitutional authority existing at the time it took effect. It follows that the exemption from taxation in terms contained in the charters of 1872 and 1877 were void, as unauthorized and prohibited by the state constitution of 1868.
It does not weaken this conclusion to say that the exemption contained in the internal improvement act of 1855 was authorized by the constitution of the state then in force, which may be admitted, and that it was assignable in its nature or by its terms in such manner that it became impressed upon the property itself into whosesoever hands it should afterwards come,*following the title, like an easement or a covenant running with the land, which we have shown, however, not to be the case; for, even on that supposition, the privilege is one that must be exercised by some person capable in law of accepting and exercising it. The conception of an immunity that is impressed upon the thing in respect to which it is granted is purely metaphorical. The grant is to a person in respect of a thing, and it is said to inhere in or be attached to the thing only when by its terms the grant is assignable by a conveyance of the thing, and passes as an incident with the title to each successor. There must always be a person capable not only of receiving the title, but also of accepting the conditions accompanying it, and which constitute the exemption; otherwise the conditions become impossible and void.
After the adoption of the constitution of Florida of 1868, there could be no corporation created capable in law of accepting and enjoying such an exemption, for that was prohibited by the constitutional provisions that have been cited. In the case of the Pensacola & Louisville Railroad Company, in 1872, the capacity at that time to receive this privilege depended altogether upon the legislative act amending its charter to that effect; and if any doubt as to this might be reasonably entertained, certainly none can arise as to the Pensacola Railroad Company, which derived all its powers and its very existence from legislation dependent for its validity wholly upon the constitution of 1868. The prohibition which forbids the legislature from exempting the property of railroad corporations from taxation, makes it impossible for the legislature to create such a corporation capable in law of acquiring and holding property free from liability to taxation.
It has, however, been earnestly urged upon us in argument, by counsel for the plaintiff in error, that the supreme court of Florida, in the case of Gonzales v. Sullivan, 16 Fla. 791, explicitly decided, in opposition to the views we have expressed, that the railroad and property, the subject of this litigation, then held by the Pensacola & Louisville Railroad Company, were exempt from taxation, according to the terms of the provision in the internal improvement act of 1858;
and it is pressed upon us as a conclusive determination of the law of Florida upon the point, particularly authoritative in the present case, for the reason that the plaintiff in error, having, subsequently to that decision, acquired its title, may be presumed to have acted upon the faith of it.
This presumption is not pressed, however, to the extent of establishing a contract between the plaintiff in error and the state of Florida, the obligation of which has been impaired by any law subsequently passed, nor of working an estoppel against the state as res adjudicata, with an equivalent effect. The decision cited, therefore, cannot be allowed any greater effect as an authority than ought to be given, in cases of this description, to the judgments of state tribunals.
The question we have to consider and decide is whether, in the judgment under review, the supreme court of Florida gave effect to a law of the state which, in violation of the constitution of the United States, impairs the obligation of a contract. In reaching a conclusion on that point, we decide for ourselves, independently of the decision of the state court, whether there is a contract, and whether its obligation is impaired; and if the decision of the question as to the existence of the alleged contract requires a construction of state constitutions and laws, we are not necessarily governed by previous decisions of the state courts upon the same or similar points, except where they have been so firmly established as to constitute a rule of property. Such has been the uniform and well-settled doctrine of this court. State Bank of Ohio v. Knoop, 16 How. 369-391.
As was said by Chief Justice TANEY in the case of Ohio Life Ins. & Trust Co. v. Debolt, 16 How. 416-432:
"But this rule of interpretation is confined to ordinary acts of legislation, and does not extend to the contracts of the state, although they should be made in the form of a law; for it would be impossible for this court to exercise any appellate power in a case of this kind, unless it was at liberty to interpret for itself the instrument relied on as the contract between the parties. It must necessarily decide whether the words used are words of contract, and what is their true meaning, before it can determine whether the obligation the instrument created has or has not been impaired by the law complained of. Now, in forming its judgment upon this subject, it can make no difference whether the instrument claimed to be a contract is in the form of a law, passed by the legislature, or of a covenant or agreement by one of its agents acting under the authority of the state."
To the same effect are the cases of Jefferson Branch Bank v. Skelly, 1 Black, 436, and Bridge Proprietors v. Hoboken Co. 1 Wall. 116.
It is true that in all these cases the state courts, whose judgments were brought into review, had construed the statutes as not creating a contract; but the principle is equally applicable in the converse Burgess v. Seligman, 107 U. S. 20; [S. C. 2 SUP. CT. REP. 10.] It is undoubtedly true that the opinion of the supreme court of Florida, in the case of Gonzales v. Sullivan, 16 Fla. 791, is not con
sistent with that which we have expressed upon some of the principal questions involved in this case. It did declare, speaking of the effect of the internal improvement act of 1855, "that an exemption from taxation resting in contract is annexed, by the terms of the law which created it, to the road itself, and not to the companies," and that by the act of 1872 the Pensacola & Louisville Railroad Company, as assignee of the Florida & Alabama Railroad, became entitled to the exemption, because "the property passed, and with it, as an incident, went the exemption." But the main topics in the discussion in the opinion were, whether the Florida & Alabama Railroad was within the scope of the internal improvement act of January 6, 1855, by virtue of the amendment of December 14, 1855, the constitutional authority to pass which was denied in argument, but affirmed by the court; and the question as to the effect of the provisions of the constitution of 1868, which we have considered, upon the capacity of the Pensacola & Louisville Railroad Company and the Pensacola Railroad Company to accept the privilege and benefit of the exemption, by legislative authority exerted in 1872 and 1877, does not seem to have been raised or noticed, much less adjudged.
*In our opinion there is no error in the judgment of the supreme court of Florida in the matter complained of, and it is accordingly affirmed.
(109 U. S. 336)
KEYES v. UNITED STATES.
(November 26, 1883.)
POWER OF PRESIDENT TO REMOVE OFFICER OF ARMY-REV. ST. § 1229-COURTMARTIAL-SENTENCE.
The president has the power to supersede or remove an officer of the army by appointing another in his place, by and with the advice and consent of the senate. 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."
Where a court-martial has cognizance of the charges made, and has jurisdiction of the person of the accused, its sentence is valid, when questioned collaterally, although irregularities or errors are alleged to have occurred in its proceedings, in that the prosecutor was a member of the court and a witness on the trial. No opinion is expressed as to the propriety of such proceedings.
Appeal from the Court of Claims.
James Coleman, for appellant.
BLATCHFORD, J. The appellant brought a suit against the United States, in the court of claims, on the second of February, 1880, claim
ing to recover the sum of $4,236.36, for his pay as a second lieutenant in the fifth regiment of cavalry, in the army of the United States, from the twenty-eighth of April, 1877. That court dismissed his petition, on the following facts found by it: In February, 1877, the appellant was tried on four charges and specifications, before a general court-martial composed of 10 officers. One of them, Col. Merritt, was the colonel of the fifth cavalry. They were all present. The appellant being before the court, and the order appointing it being read, he was asked if he had any objection to any member of the court present, named in the order, to which he replied in the negative. The oaths were then administered to the members of the court in the presence of the appellant. The first three of the charges and specifications were preferred by the lieutenant colonel of the fifth cavalry and the fourth by Col. Merritt. _The appellant was represented by counsel of his own selection. He pleaded not guilty. Col. Merritt was sworn as a witness on the part of the government, and gave testimony in support of the charge and specifications preferred by him, but gave no testimony in regard to the other charges and specifications. The day after the appellant pleaded not guilty, he withdrew, by leave of the court, his plea of not guilty to the second charge and its specifications, and entered a plea of guilty thereto. Col. Merritt continued to sit as a member of the court throughout the trial, and participated in rendering the final judgment. At the close of the evidence the appellant submitted, in writing, a statement of his defense, which was read to the court. It contained no objection or reference to the participation of Col. Merritt in the trial as a member of the court, or to his having been so sworn and examined as a witness on behalf of the government. The court found the appellant guilty of all the charges and specifications, and sentenced him to be dismissed from the service. The proceedings, findings, and sentence of the court were approved by the president of the United States, who ordered that the sentence should take effect on the twenty-eighth of April, 1877. On the twenty-seventh of June, 1877, the senate not being in*session, the president appointed Henry J. Goldman to be a second lieutenant in the fifth regiment of cavalry, and on the fifteenth of October, 1877, he nominated Goldman to the senate for appointment as second lieutenant in said regiment, in the place of the appellant, dismissed, to date from June 15, 1877. The senate advised
. and consented to the appointment of Goldman, and he was accord. ingly commissioned and still holds the office of such second lieu. tenant.
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 de cision.