jects within the limits of the authorities levying the stamp tax is not a true classification. Construing the statute the state court said: "In our opinion, this law clearly embraces every class, whether it be corporation, association, either voluntary or otherwise, partnership or person which furnishes a place for dealing in sales of stocks, bonds, etc., upon margins or otherwise, where the same is not at the time actually paid for and delivered, and embraces all classes who may deal in such places so furnished. It is clear that the character of business which is treated of by the statute is fully recognized as a separate and distinct business from all other classes. That the statute embraces every class, whether it be corporation, association, partnership or person who may furnish a place or who may deal in transactions in such places, there can be, in our opinion, no sort of doubt; therefore we conclude that so far as the class of persons to whom this law is made applicable, whether natural or artificial, this statute embraces the entire class and is not subject to the objection that it singles out a part of a legal class upon which the license or stamp tax is imposed and exempts others of the same class. Manifestly the selection of the business calling and the class pursuing such calling were proper and appropriately selected by the legislature of this State in dealing with that subject." Of course, we take the statute as a local law to mean what the court says it means. Nor is there any force in the objection that the classification, as shown by the statute, is arbitrary and unreasonable. The same methods and means are applied equally to all of the same class. Kentucky R. R. Tax Cases, 115 U. S. 321, 337; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283; Barbier v. Connolly, 113 U. S. 27, 32.

Again, it is said that the statute, by its necessary operation, is a regulation of interstate commerce. Not so. It might suffice, in the present case, to say, that under

the facts admitted there is no reason whatever to invoke the commerce clause of the Federal Constitution. All that the defendant offered to show in this connection was that a substantial part of the sales referred to were of grain, provisions and other commodities which were at the time of sale in course of transportation as articles of interstate commerce. With this state of facts and no more before it the Supreme Court of the State said: "The requirements of the statute now under consideration have no bearing or influence whatever upon property sold. It is addressed to those furnishing the places as well as those who deal in the transaction in such places. In other words, in sales of property in the manner and at the places pointed out by the statute it is required, where a sale is made in the manner contemplated by that statute that the seller shall make a memorandum of such sale and place upon such memorandum a twenty-five cent stamp. We repeat that transactions of this character have no influence whatever upon commerce between different States, and, as was in substance said by the Supreme Court of the United States [Hatch v. Reardon, 204 U. S. 152], sales of this character do not contemplate or have anything to do with the transportation of property from one State to another, as in the drummer cases, and the mere fact that the parties to such sale, or either one of them, happen to be a resident of another State, in no way, legally or practically, affects the transaction and falls far short of subjecting such transaction to condemnation for the reason that it interferes with interstate commerce. Our conclusion upon this proposition is that this statute in no way interferes with interstate commerce, and should not be held invalid for that reason." We add that the indictment deals with the place where sales, such as the statute describes, are made. The offense is complete under the statute, by the keeping of such a place, and that occurs before any question of in

terstate commerce could arise, so far as this record discloses.

We do not perceive that any error of law was committed by the state court, and its judgment is

Affirmed.

REAVES v. AINSWORTH, MAJOR GENERAL.

ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF

COLUMBIA.

No. 14. Argued December 2, 5, 1910. Decided January 9, 1911.

Under the act of October 1, 1890, c. 1241, 26 Stat. 562, regulating examinations and promotions in the army, the board of examiners may make a provisional order giving the officer a reasonable period for reëxamination and such an order is not final but provisional, and does not deprive the board of jurisdiction to subsequently determine the fitness of officer for duty.

What is due process of law depends upon circumstances. To those in the military or naval service of the United States military law is due process; and the decision of a military tribunal acting within scope of its lawful powers cannot be reviewed or set aside by the courts. The purpose of the act of October 1, 1890, is to secure efficiency and the only relief from error or injustice in the order of the board is by review of the President. The courts have no power of review. Courts are not the only instrumentalities of government; they cannot command or regulate the army, and the welfare and safety of the country, through the efficiency of officers of the army, is greater than the value of his commission, or the right of promotion of any officer of the army.

There is a difference between the regular army of the Nation and the militia of a State when not in service of the Nation, and more rigid rules and a higher state of discipline are required in the former than in the latter.

28 App. D. C. 157, affirmed.

THE facts, which involve the validity of an order hon

orably discharging an officer of the United States Army under the act of October 1, 1890, are stated in the opinion.

Mr. Alexander S. Bacon for plaintiff in error.

Mr. Assistant Attorney General Harr for defendant in

error.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Plaintiff in error filed a petition in the Supreme Court of the District of Columbia for a writ of certiorari to review the proceedings of a board of examination convened under the authority of the act of Congress of October 1, 1890, entitled "An Act to provide for the examination of certain officers of the Army and to regulate promotions therein," (c. 1241, 26 Stat. 562), and to annul an order made by the President discharging plaintiff in error from the army.

The basis of the petition is that by a prior decision of the board he became entitled, by virtue of the act of Congress, to be retired with three-quarters pay for life.

A writ was issued, directed to General Frederick C. Ainsworth, Military Secretary.

He appeared and moved to quash the writ. The motion was granted and the petition dismissed. The order, however, was subsequently vacated, and, by leave of the court, the petition was amended by making William H. Taft, Secretary of War, one of the respondents.

An amended writ was issued, which the respondents moved to supersede upon the following grounds: the writ was granted improvidently, and upon an ex parte application; its allowance would be unjust and contrary to public policy; the petition does not set up any right of property, title or interest in the alleged office; Congress has intrusted to the board of examination the decision of

matters properly arising before it and the court has no jurisdiction by certiorari to examine the proceedings of the board; the allowance of the writ would embarrass the operations of the military service of the United States and the proper administration of the manifold duties of the War Department, hindering the enforcement of its discipline and regulations and the discharge of the legally ordained functions of that branch of the government; the record sought to be reviewed shows that the petitioner (plaintiff in error) "is not entitled to the issuance of the writ, as it appears by a duly certified and true extract from said record." The record was filed with the motion and will be given hereafter.

The motion to supersede was granted, the order reciting "it appearing to the court, without considering the question of discretion, that the writ of certiorari" had been "improperly granted." The petition was dismissed at the cost of the petitioner, which ruling was affirmed by the Court of Appeals.

The Court of Appeals expressed the opinion that the board of examination was military in character and having had jurisdiction of the subject-matter and of the person the courts were without jurisdiction to review its decision.

By $3 of the act of October 1, 1890, the President is authorized to prescribe a system of examination for all officers below the rank of major, to determine their fitness for promotion, and it is provided "that if any officer fails to pass a satisfactory examination and is reported unfit for promotion, the officer next below him in rank, having passed said examination, shall receive the promotion: And provided, That should the officer fail in his physical examination and be found incapacitated for service by reason of physical disability contracted in line of duty he shall be retired with the rank to which his seniority entitled him to be promoted; but if he should