LIEUTENANT COLONEL STEARNS
v.
BRIGADIER GENERAL WOOD
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Lieutenant Colonel Stearns, a Major in the Ohio National Guard, sought to challenge the validity of a War Department circular limiting the maximum rank in his department to Lieutenant Colonel, arguing it violated various constitutional provisions concerning congressional power over the militia and the President's authority. The Supreme Court dismissed the case, holding that Stearns lacked standing to challenge the order because his current rank remained undisturbed and he faced no direct threat to his personal rights, and that courts cannot resolve abstract constitutional questions divorced from concrete injury to the plaintiff.
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Mr. Justice McReynolds delivered the opinion of the court.
This is a direct appeal from the District Court which held that the original bill states no cause of action. It must be dismissed unless the case involves the construction. or application of the Constitution of the United States, or the constitutionality of a Federal statute is fairly drawn in question.
The only serious attempt to show'that appellant has a direct personal interest in the subject presented is found in the section of the bill which alleges that he is now serving as a Major in the Inspector General’s Department of the Ohio National Guard and is aggrieved because defendant Wood, the Adjutant General of the State, is about to put into full force and effect a general order issued by command of the Secretary of War and known as Circular No. 8, which, without right or authority, directs that the maximum rank of senior officers in complainant’s department shall be a Lieutenant Colonel, and if this is done he will be prevented from attaining and serving in the higher rank permitted by the existing laws of Ohio.
Section 3 of the Military Law (act of January 21, 1903, c. 196, 32 Stat. 775, as amended by the act of May 27, 1908, c. 204, 35 Stat. 399), provides that on and after January 21, 1910, the organization, armament and discipline of the organized militia in the several States, Territories, and the District of Columbia, shall be the same as that which is now or may hereafter be prescribed for the regular army of the United States, subject in time of peace to such general exceptions as may be authorized by the Secretary of War. Exercising his discretion the Secretary of War directed the issuance of Circular No. 8,, to become effective January 1, 1914. It is comprehensive in terms and prescribes general regulations concerning the members, officers and organization of the state militia. The validity of the order is denied.
The bill further avers that the Adjutant General of Ohio has issued an order with respect to the mobilization of the National Guard of that State wherein he commands that upon any declaration of war all furloughs shall be revoked and all the officers and soldiers shall assemble and proceed wherever directed by the President whether within or without the United States. The validity of this is also denied.
The brief in behalf of appellant states that “this action is a test case brought by an officer of the National Guard against the Adjutant General of Ohio, who are nominal complainant and respondent, and involves the construetion of certain constitutional provisions, as follows:” Art. I, § 8, Par. 16; the Second Amendment; the Tenth Amendment; Art. I, § 8, Par. 15; the Preamble to the Constitution; the provision making the .President commander, in chief of the militia when called into the Federal service; the power granted to Congress to raise and support armies. “The action also seeks a construction with respect to the right of the President and Congress over the National Guard of the several States, and the status and legal relation of the officers thereof to the War Department; and raises the further question whether the National Guard or organized militia may be used without the territorial limits of the United States, as such.”
The general orders referred to in the bill do not directly violate or threaten interference with the personal rights of appellant — a Major in the National Guard whose present rank remains undisturbed., He is not therefore in position to question their validity; and certainly he may not demand that we construe orders, acts of Congress, and the. Constitution for the information of himself and others, notwithstanding their laudable feeling of deep interest in the general subject. The province of courts is to decide real controyersies, not to discuss abstract propositions. Little v. Bowers, 134 U. S. 547, 557; California v. San. Pablo Railroad, 149 U. S. 308, 314; Richardson v. McChesney, 218 U. S. 487, 492; Missouri, Kansas & Texas Ry. v. Cade, 233 U. S. 642, 648.
We cannot consider the points suggested and the appeal is
Dismissed.
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Citator
Cited By (22 total)
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Baker v. Carr, 369 U.S. 186 (U.S. 1962)…laim infringement of an interest particular and personal to himself, as distinguished from a cause of dissatisfaction with the general frame and functioning of government — a complaint that the political institutions are awry. ) See Stearns v. Wood, 236 U. S. 75; Fairchild v. Hughes, 258 U. S. 126; United Public Workers v. Mitchell, 330 U. S. 75, 89-91. What renders cases of this kind non-justiciable is not necessarily the nature of the parties to them, for the Court has resolved other issues between simila…
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O'Shea v. Littleton, 414 U.S. 488 (U.S. 1974)…itable relief was stated amounts to an advisory opinion that we are powerless to render. Rayburn’s Case, 2 Dall. 409 (1792); United States v. Evans, 213 U. S. 297, 301 (1909); Muskrat v. United States, 219 U. S. 346, 360-361 (1911); Stearns v. Wood, 236 U. S. 75 (1915); Coffman v. Breeze Corps., 323 U. S. 316 (1945); United Public Workers v. Mitchell, 330 U. S. 75 (1947); Paschall v. Christie-Stewart, Inc., ante, at 101-102. Mr. Justice Frankfurter stated the applicable principle in speaking for the Court…
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POE v. Ullman, 367 U.S. 497 (U.S. 1961)…llow. Second: I do not think these appeals may be dismissed for want of “ripeness” as that concept has been understood in its “varied applications.” 3 There is no lack of “ripeness” in the sense that is exemplified by cases such as Stearns v. Wood, 236 U. S. 75; Electric Bond & Share Co. v. Securities & Exchange Comm’n, 303 U. S. 419; United Public Workers v. Mitchell, 330 U. S. 75; Inter [*528] national Longshoremen’s Union v. Boyd, 347 U. S. 222; and perhaps again Parker v. Los Angeles County, supra. In…1 / 2
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- California v. San Pablo & Tulare R.R. Co., 149 U.S. 308 (U.S. 1893)
- Little v. Bowers, 134 U.S. 547 (U.S. 1890)
- Richardson v. McChesney, 218 U.S. 487 (U.S. 1910)
- Missouri v. Cade, 233 U.S. 642 (U.S. 1914)