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(273 F.) or sentence attempted to be rendered by said court-martial was null and void, as said court, so constituted and composed, had no jurisdiction over your petitioner, and no authority to render any judgment or pass any sentence upon him.” Amplifying that position in argument here it is said that the court, being one of special and limited jurisdiction, all jurisdictional facts must appear upon its record, that the competency and qualification of its members to sit as such is a jurisdictional fact which the record should disclose; that prima facie, retired army officers are not qualified to sit, indeed are disqualified; hence the judgment is void and subject to collateral attack and its invalidity cannot be cured. To demonstrate that the argument is wholly without merit we deem it necessary to refer only to the opinion of the Supreme Court in Givens v. Zerbst, 255 U. S. 11, 41 Sup. Ct. 227, 65 L. Ed. - lately decided. See also opinion of that Court in Kahn v. Anderson, lately handed down, 255 U. S. 1, 41 Sup. Ct. 224, 65 L. Ed. For we think it must follow from what is said in the Givens Case that the omission from the court record of the action taken by the President and Secretary of War disclosed in Special Orders 165 did not render the judgment and sentence void and subject to collateral attack. Indeed, we are of opinion that such facts could not be appropriately made a part of the record,—no more than facts showing that the members of the court had been commissioned as officers. În reality the proceeding in the present aspect is in the nature of quo warranto, which is not permissible. 1 Black on Judgments, Sec. 256. Moreover, although it was necessary that each member of the court be fully competent to sit, nevertheless, we are of opinion that Order No. 304, convening the court and appointing the detail and the resulting service and action taken by those detailed, raised the presumption that its members were competent and possessed all the necessary qualifications entitling them to sit as such, and that the burden rested on the petitioner to overthrow that presumption. The principle is applied in the civil courts, and we see no reason why it should not be applicable in the military as well. It is a rule of evidence in procedure, not to be confounded with substantive law, which measures the effect of facts already established, e. g., the acts of de facto officers.

"Precedent acts and conditions essential to the validity of the subsequent act in question are presumed to have been regularly and properly performed.” 9 Encyc. of Evid. p. 918.

"It is not, in general, necessary to prove the written appointments of public officers; for this would be attended with general inconvenience; and a strong presumption arises from the exercise of a public office, that the appointment to it is valid.

In the case of justices of the peace, constables, &c., it is sufficient to prove that they acted in these characters without producing their appointments." 1 Phillipps on Evidence, p. 459.

Mr. Justice Story, in delivering the opinion in Bank v. Dandridge, 12 Wheat. 64, 6 L.Ed. 552, said:

The law "will presume that a man, acting in a public office, has been rightly appointed."

In Rankin v. Hoyt, 4.How. 327, 11 L. Ed. 996, the inquiry was on the appointment of appraisers by the collector of customs. At page 334 of 4 How. (11 L. Ed. 996) it is said:

"In saying that the appraisers had no right to act without the previous request of the collector, and that no such request appears in the evidence, nothing is stated beyond the truth. But, in the absence of testimony to the contrary, the legal presumption is, that the appraisers and collector both did their duty, he requesting their action, as by law he might, and they complying.”

See also 2 Chamberlayne, Modern Law of Evidence, $ 1199 et seq.; Nofire v. U. S., 164 U. S. 657, 17 Sup. Ct. 212, 41 L. EX. 588; Cofield v. McClelland, 16 Wall. 331, 21 L. Ed. 339.

[2] Objections are also made to the order convening the court, that it does not appear to have been subscribed personally by Brigadier General Hoyle but by his staff officer, and also that the department of which he is in command should appear below his personal signature. The proposition is rested upon forms of such orders recommended in Winthrop's Military Law. We regard the insistence, however, as relating purely to a matter of form, and not substance. The order shows on its face that the court was convened and the detail fixed by command of the brigadier general, and the caption shows the department of which he was commanding officer. both respects we regard the objections as not well taken. We cannot draw the desired inference that, whereas the suggested form would show that the order received both the personal and official attention of the commanding officer, the one used would not.

[3] There were three specifications under each charge, consisting of three letters written by appellee of dates May 26, June 29, and October 10, in 1917. That is, the three specifications under the charge of violating the 95th article were identical with those under the charge of violating the 96th article; and it is alleged in the petition for the writ that inasmuch as the specifications set up the same facts to be proved under each charge, this operated to put the petitioner twice in jeopardy for the same offense. Only an officer or cadet can commit the offense named in the 95th article. It reads:

"An officer or cadet who is convicted of conduct unbecoming an officer and gentleman shall be dismissed from the service."

In

It exacts conduct becoming both an officer and a gentleman. We appreciate the high requirement and purpose of the article and understand in a broad sense the offense, but confess a lack of knowledge of its definite limitations, and also admit a superior capacity in the military court over the civil to deal with it. The same comments and admission go to the 96th article, though it is broader in scope than the 95th. As to persons, it includes every one subject to military law, as to the offense, "all disorders and neglects to the prejudice of good order and military discipline, all conduct of a nature to bring discredit upon the military service” are covered, and as to the punishment, that on conviction is left to the discretion of the court. An excerpt from Dynes v. Hoover, 20 How. 65, 82 (15 L. Ed. 838), is apt:

(273 F.) "Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse; for what those crimes are, and how they are to be pun. ished, is well known by practical men in the navy and army, and by those who have studied the law of courts-martial, and the offenses of which the different courts-martial have cognizance. With the sentences of courts-martial which have been convened regularly, and have proceeded legally, and by which punishments are directed, not forbidden by law, or which are according to the laws and customs of the sea, civil courts have nothing to do, nor are they in any way alterable by them. If it were otherwise, the civil courts would virtually administer the rules and articles of war, irrespective of those to whom that duty and obligation has been confided by the laws of the United States."

[4] But, as a question of pleading, it is very clear to us that the two charges are not one and the same offense. Furthermore, that was a question in procedure, not of jurisdiction, and which the courtmartial, having obtained jurisdiction, was competent to decide. Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. 542, 28 L. Ed. 1005; In re Eckart, 166 U. S. 481, 17 Sup. Ct. 638, 41 L. Ed. 1085; Rose ex rel. v. Roberts, 99 Fed. 948, 40 C. C. A. 199. Our answer to the other element embodied in the contention is: Gavieres v. U. S., 220 U. S. 338, 31 Sup. Ct. 421, 55 L. Ed. 489. Here, as there, it was necessary to establish a fact under one charge not required under the other. Conviction could not be had under the 95th article, unless it be proven that defendant is an officer. No such proof is needed under the 96th. See also Carter v. McClaughry, supra.

There was error in discharging appellee.
Reversed.

MCDOUGAL et al. v. BLACK PANTHER OIL & GAS CO. et al. JACKSON

V. SAME. MCKINNEY v. SAME.
(Circuit Court of Appeals, Eighth Circuit. May 7, 1921.)

Nos. 5573, 5574, 5580. 1. Judgment 638—In case of action in courts of concurrent jurisdiction

first final judgment is conclusive.

Where two actions between the same parties involving the same cause of action proceed at the same time in courts of concurrent jurisdiction, it is not the final judgment in the action first brought, but the first final judgment, although that may be in the action last brought, that renders

the issues res judicata in both actions. 2. Judgment fr829 (1) - Judgment of federal District Court, determining

heirs of deceased Indian allottee, conclusive, notwithstanding act giving Oklahoma probate courts authority to determine such question.

Notwithstanding Act June 14, 1918 (U. S. Comp. St. Ann. Supp. $$ 4234a, 4234b), respectively declaring a determination as to who are the heirs of a deceased allottee of the Five Civilized Tribes by the probate court of the state of Oklahoma having jurisdiction to settle the estate of the said deceased shall be conclusive, prorided that an appeal may be taken, etc., and that the lands of full bloods shall be subject to the laws of Oklahoma providing for partition of real estate, the probate court is not given any exclusive right of determination, and there being no repeal, express or implied, of the statutes giving the federal District Court authority to determine such question, a judgment of the District Court deFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

273 F.-8

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termining question of heirship will not be set aside on the theory that the probate court had exclusive jurisdiction; the purpose of the statute being to provide a tribunal which could determine the question of heirship as against persons not parties that is, against the entire world. Appeal from the District Court of the United States for the Eastern District of Oklahoma; Frank A. Youmans, Judge.

Bill by the United States against Bessie Wildcat and others. The Black Panther Oil & Gas Company and others, Saber Jackson, D. A. McDougal and others, and W. E. McKinney, guardian of Martha Jackson, intervened. The suit was decided against the United States, and continued in separate suits by interveners against the original defendants. From decrees for defendants, the several interveners appealed. Wiley Knight, a party to the suits below, moved that the appeals be remanded, with instructions to the lower court to vacate its findings and final decrees, and hold funds in its control until the county court had made a final decree adjudicating who were the heirs of the original deceased Indian allottee. Motion denied.

Eugene B. Smith, of Sapulpa, Okl., and Archibald Bonds, of Muskogee, Okl., for the motion.

Charles B. Stuart, of Oklahoma City, Okl., and Joseph C. Stone, of Muskogee, Okl., for respondent Black Panther Oil & Gas Co.

Before SANBORN and CARLAND, Circuit Judges, and LEWIS, District Judge.

SANBORN, Circuit Judge. In the year 1914 the United States brought this suit against those who it alleged were claimants as or under the full-blood Indian heirs of Barney Thlocco, a deceased full-blood Creek Indian, to whom or to the heirs of whom the lands in question in this case had been duly allotted, patented, and conveyed with the approval of the Secretary of the Interior prior to 1904, for the purpose of having such allotment, patent, and conveyance avoided. Many claimants as or under these heirs to the title to this land, and to the oil and gas derived from it, became parties to the suit, either as defendants or interveners. The Black Panther Oil & Gas Company had an oil and gas lease under a claimant to this heirship who proved to be successful, and has been operating under that lease and under the direction of the court upon and in this land, and paying the royalties to a receiver and to the court below.

In May, 1915, that court rendered a decree upon the merits against the United States, which was ultimately affirmed by the Supreme Court, and a decree of its dismissal from this suit, based upon the mandate of the Supreme Court, was rendered in the District Court below in February, 1918. By that time the amounts received from the royalties under the control and subject to the disposition of the court below aggregated more than $1,000,000, and that court proceeded to hear and adjudge the claims to this fund and to the land of the defendants and interveners. The hearing of these issues was commenced in December, 1918, and final decrees adjudging the rights of the respective parties were rendered in 1919, and have been brought to this court for review by the appeals of several claimants.

(273 F.) Wiley Knight, a party to the suit below, has made a motion in the appeals above entitled that the cause presented by these appeals be remanded to the court below, with instructions to vacate its findings and final decrees and hold the funds in its control until the county court of Okfuskee county, Okl., has made a final decree who the heirs of Barney Thlocco were, or with instructions to dismiss the cause below outright.

Counsel for Mr. Knight found this motion upon the Act of Congress of June 14, 1918, 40 Stat. 606, U. S. Comp. St. Supp. 1919, SS 4234a and 4234b, which provide that:

Section 4234a : “A determination of the question of fact as to who are the heirs of any deceased citizen allottee of the Five Civilized Tribes of Indians who may die or may have heretofore died, leaving restricted heirs, by the probate court of the state of Oklahoma having jurisdiction to settle the estate of said deceased, conducted in the manner provided by the laws of said state for the determination of heirship in closing up the estates of deceased persons, shall be conclusive of said question: Provided, that an appeal may be taken in the manner and to the court provided by law, in cases of appeal in probate matters generally: Provided further, that where the time limited by the laws of said state for the institution of administration proceedings has elapsed without their institution, as well as in cases where there exists no lawful ground for the institution of administration proceedings in said courts, a petition may be filed therein having for its object a determination of such heirship and the case shall proceed in all respects as if administration proceedings upon other proper grounds had been regularly begun, but this proviso shall not be construed to reopen the question of the determination of an heirship already ascertained by competent legal authority under existing laws.

Section 4234b: "The lands of full-blood members of any of the Five Civilized Tribes are hereby made subject to the laws of the state of Oklahoma, providing for the partition of real estate.

The contention of Mr. Knight's counsel is that, as the answer to the question who were the heirs of Thlocco necessarily conditions the rights of each of the claimants in this suit, the court below had no jurisdiction, after the passage of the act which has been recited, to adjudge their claims or rights, or to render the decrees below by which it determined them. In support of this position they have cited, and the court has read and considered, the opinions of the courts in Hallowell v. Commons, 239 U. S. 506, 507, 508, 36 Sup. Ct. 202, 60 L. Ed. 409; Pel-Ata-Yakot v. United States (D. C.) 188 Fed. 387, 389; Parr v. Colfax, 197 Fed. 302, 304, 117 C. C. A. 48; McKay v. Kalyton, 204 U. S. 466, 467, 469, 27 Sup. Ct. 346, 51 L. Ed. 566; Ross v. Stewart, 227 U. S. 532, 537, 33 Sup. Ct. 345, 57 L. Ed. 626; United States v. Kagama, 118 U. S. 375;1 Caesar v. Krow (Okl.) 176 Pac. 927, 928—and in other cases, including State v. Huser, 76 Okl. 130, 184 Pac. 113, 122, 124, and State v. Wilcox, 75 Okl. 158, 182 Pac. 673, cited by opposing counsel.

All parties to this suit claim under the heirs of Barney Thlocco and concede: (1) That all the claimants derive their rights from full-blood restricted heirs of a deceased citizen allottee of one of the Five Civilized Tribes; (2) that an answer to the question who were the heirs of Thlocco was indispensable to the just adjudication of the claims of the parties to the suit; (3) that the jurisdiction to adjudge the answer 16 Sup. Ct. 1109, 30 L. Ed. 228.

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