Oliver Wendell Holmes, Jr.

“ It is argued that it always has been understood that under such circumstances the position in the volunteer service alone is to be regarded, that much harm will be done if a contrary construction should be adopted now, and that the leave given to appoint regular officers to the volunteer service should be construed to carry with an appointment the same consequences that would attach to a commission if held by anyone else. ”

“ The answer of the United States to the foregoing argument is that the regular officer had been granted an indefinite leave of absence from the Regular Army in order to enable him to accept a commission as lieutenant colonel, Second United States Volunteer Infantry, and that he was serving in the letter capacity when he sat upon the court. ”

“ It has been decided that a sentence against a volunteer officer by a court composed wholly of regular officers is void, and this principle is thought to govern the present case. McClaughry v. Deming, 186 U.S. 49, 46 L. ed. 1049, 22 Sup. Ct. Rep. 786. On this ground the court of claims decided that the claimant was entitled to recover up to the time of the final muster out of his regiment on May 25, 1899, including two months' extra pay under the act of January 12, 1899, chap. 46 (30 Stat. at L. 784) . ”