fail for any other reason he shall be suspended from promotion for one year, when he shall be re-examined, and in case of failure of such re-examination he shall be honorably discharged with one year's pay from the army; . and no act shall be so construed as to limit or restrict the retirement of officers as herein provided for." This statute constitutes the law of the case. The material facts are these: Plaintiff in error was a second lieutenant of artillery on sick leave at Fort Hamilton on account of neurasthenia, resulting from overwork in the Philippine Islands. On August 16, 1904, he was ordered for promotion before a board of examination, constituted of five members, two of whom were surgeons. The surgeons found him physically fit for duty, but he was, on their recommendation, allowed to return to Fort Hamilton. On October 5, 1904, while still on sick leave, he was again ordered to Fort Monroe before the same board and forced to take a mental examination. He broke down completely and was found deficient. On May 22, 1905, he was again ordered before the board for reëxamination, and appeared before it on the twenty-third. On the twenty-fourth the board made the following order, which was referred to above in connection with the motion to supersede the writ: "The board is of opinion that 2d Lieut. Winslow H. Reaves, Art'l Corps, is physically incapacitated for service at the present time, but that there is a reasonable hope of his recovery. Lieut. Reaves' present condition is such that it is not possible for him to proceed with the mental examination, without serious interference with his future recovery. "His disability is due to severe cerebral and cardiovascular neurasthenia, contracted in line of duty." Subsequently he was ordered to appear before the same examining board convened by special order of the President, but changed as to a majority of its members. The Opinion of the Court. 219 U.S. board convened at Fort Monroe August 21, 1905, and he appeared before it pursuant to orders. He was found physically fit for duty. He failed, however, in his mental examination, and, we may assume, although it is not directly averred, that in consequence of the report of the board the President made the order above set out, honorably discharging the plaintiff in error from the service of the United States. This order he attacks and urges that of the twenty-fourth of May as the foundation of his rights and contentions. He maintains that the surgeons having reported as therein set out, and their report having been confirmed by a full board of five officers and forwarded to the Secretary of War, it, under the expressed wording of the statute of October 1, 1890, had the finality of an acquittal of a court martial, "and that, by the operation of the statute," plaintiff in error "was thereupon retired and entitled to retired pay during life, instead of being dismissed from the service with one year's pay," and that, as such right became absolute by the report of the surgeons and the action of the board thereon, the subsequent proceedings of the board were without jurisdiction and void, and that they and the President's order deprived him of his property without due process of law. Plaintiff in error misunderstands the order of May 24. It is not a final order but a provisional one. It was an indulgence to the afflicted officer, giving him a chance for recovery and proinotion and assignment to the active list of his profession. And we have no doubt of the power of the board to make it and reserve jurisdiction for further proceedings. It is next contended that even if the board had jurisdiction its proceedings subsequent to the order of May 24, 1905, were arbitrary and illegal, and that the relief prayed does not involve the "question of interference with the discretion of the board; it is a question of the jurisdic tion of the board and of the fact that discretion, if exercised, was abused." On this contention the averments of the petition have a more pertinent bearing than on the first contention. The petition described with much detail and quite vividly his disability. He alleges that for the last two years he has been suffering from an extremely acute case of cerebral neurasthenia, or nervous exhaustion, for which he has been almost continuously under the care of physicians, some of whom are the most famous in the world as specialists for nervous diseases. And, further, that he is to-day in as bad a condition as at any time during the last two years and is wholly unable to exercise mental effort; his memory is at times a blank, and it is, and for two years has been, utterly impossible for him "to study, read or think consecutively, except for a few moments at a time, and 'his' sleep has not averaged more than about two and one-half hours per day." This was his condition, it is alleged, when he was ordered before the first board. The allegations are supported by an affidavit of Dr. Weir Mitchell and Dr. John K. Mitchell. The affidavit, which was submitted to the first board, illustrated his condition and its effects in various ways and declared that from the experience and knowledge obtained from actual attendance upon him he was not "competent to undergo a mental examination or to do any military duty." This condition is further set forth in the petition, and the affidavit which accompanied it, with circumstances of emphasis, and there is an intimation that the final action of the board was contrived. The details we may omit. The important facts which are alleged and which, as it is contended, give character to the action of the board as illegal and arbitrary are the following: The board had before it papers from the War Department and his counsel made a series of motions for permission to examire them and to inspect the other evidence, which included Opinion of the Court. 219 U.S. documents of all kinds, reports of surgeons and the report of the surgeons made to the board May 23, 1905. A motion was also made to strike out the report of the surgeons, on the ground that the report of the examining board of May 24, 1905, was final, and plaintiff in error's retirement was mandatory under said report and the act of Congress of October 1, 1890. The motions were all denied except the request to produce witnesses. At the request of the board he presented the names of about thirty witnesses who were physicians and had had him under observation for different periods of time, and all of whom could swear to facts, exact symptoms of his malady, and besides could give expert evidence as to his condition while under observation. The names of the witnesses and the facts were given. It was offered to be shown that the reports of the surgeon who had charge of a hospital at Fort McPherson, Georgia, to which plaintiff had been sent, that he was competent to do duty, were not based on facts or the reports of the attendants, "but were prepared negligently, ignorantly, wickedly and corruptly." And an offer was made to produce the attendants with their official reports. The board refused to call in witnesses, on the ground that the doctors named had already filed certificates, and that the laymen were not expert witnesses. Plaintiff in error was not allowed to call witnesses, nor to inspect exhibits presented to the board, nor to cross-examine the surgeons on their report. All testimony, documentary or otherwise, was taken in secret. The board went into executive session and formally reported plaintiff in error to be without physical disqualification and competent to take the examination and to do the duty of a first lieutenant of artillery. He was thereupon ordered to take such examination, and attempted to take the same, until prevented by spells of. weeping and other marked symptoms of neurasthenia. Thereupon the post surgeon made a certificate as to his condition and put him on the sick report, and on the following day the surgeons of the board were sent to Fort Monroe and superseded the post surgeon, and plaintiff in error was forced to go through "the farcical form of an examination under the personal supervision of the board surgeons, turning in practically blank examination papers, petitioner's mind being almost a blank." The prayer is for a writ of certiorari to bring up all of the proceedings which we have detailed, that they may be reviewed and that the following order discharging him from the army be annulled. The order is annexed to the petition as an exhibit and is as follows: "4. By direction of the President, 2d Lieutenant Wilson Hart Reaves, Artillery Corps, is honorably discharged from the services of the United States, under the provision of the Act of Congress approved October 1, 1890, to take effect September 14, 1905 (1052959, M. S. O.). "By order of the Acting Secretary of War. "J. C. BATES, "Major General, Acting Chief of Staff. "Official: F. C. AINSWORTH, "The Military Secretary." And it is further prayed that petitioner be put upon the retired list under the act of October 1, 1890, and the findings of the board of May 24, 1905, and that the proceedings of the board and of the Acting Secretary of War subsequent to that date be found to be void and without effect. And such further relief is prayed as may be just. The petition is verified and is accompanied by an affidavit of plaintiff in error's counsel, corroborating with some detail its statements of the mental and physical condition of plaintiff in error. It will be seen that the report of the board of May 24, |