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BISHOP v. UNITED STATES

decided: April 3, 1905.

BISHOP
v.
UNITED STATES



APPEAL FROM THE COURT OF CLAIMS

Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day

Author: Brown

[ 197 U.S. Page 336]

 MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.

This case depends upon the validity of the Findings and sentence of the court-martial, and is brought under an act of Congress approved June 6, 1900, 31 Stat. 1612, nearly thirty years after petitioner was recommissioned as a Lieutenant Commander, which enacted "that the claim of Joshua Bishop for alleged items of pay, due and unpaid to him for services as a Lieutenant Commander . . . be, and the same is hereby referred to the Court of Claims. Jurisdiction is hereby conferred on said court to try said cause, and the statute of limitations shall not apply thereto, and to render final judgment therein, and subject to the right of appeal by either party." Claimant insisted in the court below that this statute was not a mere waiver of limitations, but a recognition that claimant was a Lieutenant Commander during the time referred to in the act, but as this point is not made in the briefs filed in this court, it may be considered as abandoned.

The action of the court-martial in dismissing the petitioner from the service is attacked upon the following grounds:

1. That the court had no jurisdiction over him, because he had already been punished for the offenses charged against him, viz., drunkenness and neglect of duty.

It appears from the findings that Bishop was a Lieutenant Commander in the naval service, attached to the steamer Wyoming, then lying in the harbor of Nagasaki, Japan; that he was ordered by his commanding officer to have his ship ready for sea by daylight on the morning of the thirty-first

[ 197 U.S. Page 337]

     of May, 1867, but that he went ashore and did not return until after daylight. On May 31 the following entries appear on the log:

"From 4 to 8 A.M.

"Lieutenant Commander Joshua Bishop was suspended from duty by order of Lt. Commander C. C. Carpenter.

GEORGE B. GLIDDEN, Master."

"From 6 to 8 P.M.

"At 6.40 Lt. Comdr. Joshua Bishop was restored to duty by order of Rear Admiral H. H. Bell.

"GEORGE B. GLIDDEN, Master."

Upon being placed on trial before court-martial Bishop pleaded that he was placed under arrest for the offenses specified (drunkenness and neglect of duty), but was ordered released from arrest by Rear Admiral Bell; and in this connection refers the court to ...


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