Opinion — Reid v. United States

REID v. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE

SOUTHERN DISTRICT OF NEW YORK.

No. 552. Argued December 11, 14, 1908.—Decided January 4, 1909.

Suits can be maintained against the sovereign power only by its per-

mission and subject to such restrictions as it sees fit to impose, Ka-

wananakoa v. Polyblank, 205 U. 8. 349, and a statutory change in the

ordinary business of the courts will not be held to extend that per-

mission when the general policy as to such suits is maintained. Uni-

ted States v. Dalcour, 203 U.S. 408.

The act of March 3, 1891, 26 Stat. 826, c. 517, deals with general, and

not special, jurisdiction, and nothing in §§ 5, 6, or 14 extended the

right of review of judgments of the District Court sitting as a court of

claims under the act of March 3, 1887, c. 359, 24 Stat. 505, and a

writ of error will not lie to review a judgment in favor of the Govern-

ment on a claim of less than $3,000.

Courts must take notice of the limits of their jurisdiction, and the

Government should not consent to allow a suit against it to proceed

if the court has not jurisdiction.

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530 OCTOBER TERM, 1908.

Argument for Plaintiff in Error. 211 U.S.

Not decided, the court not having jurisdiction of the appeal, whether

an enlisted man can, under the circumstances of this case, be dis-

charged without honor by order of the President without trial by

court-martial.

THE facts are stated in the opinion.

Sie ey

Mr. Chase Mellen, with whom Mr. Francis Woodbridge was

on the brief, for plaintiff in error:

The powers to raise, support and govern the army are vested

in Congress. Constitution, Art. I, §§ 8, 10; Art. II, $§ 1, 2, 3;

Fifth Amendment; U. S. Comp. Stat., 1901, pp. 814, 817; Ar-

ticles of War (U.S. Rev. Stat., § 1342).

The discharge of the petitioner was intended to be, and was,

in fact, a punishment.

.. discharge without honor is of doubtful legality. 2 Win-

throp on Military Law (2d ed.), 847, 848; Davis on Military

Law, 357; O’Brien’s American Military Law.

Assuming that the riotous disturbance was participated in by

some member of the battalion, the punishment of the innocent

was not thereby justified.

The President has no powers except such as are conferred

upon him by the Constitution and the laws of Congress enacted

thereunder. Kansas v. Colorado, 206 U. 8S. 46, 90; McCulloch

v. Maryland, 4 Wheat. 316; Ex parte Merryman, Taney’s Rep.

246; The Floyd Acceptances, 7 Wall. 666; United States v. San

Jacinto Tin Co., 125 U. 8. 273; 3 Elliott’s Debates, 58, 59;

Bryce’s American Commonwealth; Miller on the Constitution,

156; The Federalist, Nos. 67, 69, 74; De Lolme’s British Con-

stitution, Book I, chap. 7; 1 Kent’s Commentaries, 221, 282;

t Blackstone’s Commentaries, 262, 408-421; Kneedler v. Lane,

45 Pa. St. 238; Story on the Constitution, § 1197; Dynes v.

Hoover, 20 How. 65.

The President’s act in discharging the petitioner without

trial was in excess of his powers and in violation of the peti-

tioner’s rights. U. S. Comp. Stat., 1901, p. 973; Articles of

Sit te DOL. SRT LEIP tee PD

REID v. UNITED STATES. 531

211 U.S. Argument for Plaintiff in Error.

War; U.S. Rev. Stat., § 1342; U.S. Comp. Stat., 1901, p. 868;

4 Opinions Attorney General, 1; 4 Jd., 603; 6 Id., 4; 12 Id., 421;

15 Id., 421; Blake v. United States, 103 U. S. 227; Street v.

United States, 133 U.S. 299; Mullan v. United States, 140 U.S.

240; Hartigan v. United States, 196 U. S. 169: U.S. Rev. Stat.,

§ 1253; United States v. Kingsley, 138 U.S. 87: United States v.

Barnett, 189 U. S. 474.

The contention that the President acted according to prece-

dent cannot be maintained; the so-called precedents cited by

the Military Secretary have no application whatsoever to the

present case. Thompson v. Kentucky, 209 U. S. 340, 346;

Rathbone v. Wirth, 150 N. Y. 459, 477; Swaim v. United States,

28 C. Cl. 173, 221.

The President’s belief that the good of the service and the

maintenance of the morale of the army required that there

should be in the army only such troops as he could absolutely

rely upon and safely quarter under arms among the people is

not a justification in law for the discharge without trial of 167

enlisted men accused of serious crime. Ex parte Milligan, 4

Wall. 2.

The President’s act in ordering the discharge of the peti-

tioner without trial is tantamount to nullification of the pro-

vision of the Constitution which gives Congress the power to

raise and support armies. Arbitrary action by any branch of

the Government is not favored in American jurisprudence.

Constitution of Kentucky; Constitution of Wyoming; Stand-

ard Oil Co. v. Unite’ States, Mss.; United States v. Delaware &

Hudson Co., Mss.; Ex parte Merryman, Taney’s Rep. 246;

Dicey’s Law and Opinion in England, 174, 215.

The petitioner upon enlistment acquired the right to serve

out his term of enlistment unless legally discharged and the

right not to be punished except for violations of the Articles of

War after court-martial. Slaughter-House Cases, 16 Wall. 32,

116, 122; U. 8. Rev. Stat., § 1118; In re Grimley, 137 U.S. 147;

Articles of War.

Enlistment in the army of the United States did not deprive

ARLE NOE NSP RETEST ER

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eter ys

532 OCTOBER TERM, 1908.

Argument for Plaintiff in Error. 211 U.S.

the petitioner of his rights as a citizen. O’Brien’s American

Military Law, 27, 28, 30, 175; Dicey’s Introduction to the Study

of the Law of the Constitution (6th ed.), 295, 301; Ex parte

Merryman, Taney’s Rep. 246; Ex parte Milligan, 4 Wall. 2;

United States v. Clark, 31 Fed. Rep. 710; Dicey’s Law of the

Constitution, 305; Mutiny Act, 1 William & Mary, c. 5 of 1689;

The Federalist, Nos. 25, 84; Cooley’s Constitutional Limitations

(7th ed.), 500, 504; Norman v. Heist, 5 W. & 8. 171, 173; Swaim

v. United States, 28 C. Cl. 221.

No citizen of the United States can be deprived of liberty or

property without due process of law. Dartmouth College Case,

4 Wheat. 518, 581; Hurtado v. California, 110 U. S. 516;

Holden v. Hardy, 169 U. 8. 366; St. Louis R. Co. v. Davis, 132

Fed. Rep. 633; Simon v. Craft, 182 U. 8. 427; Wilson v. Stande-

fer, 184 U.S. 399; Chicago &c. R. Co. v. Chicago, 166 U.S. 226;

McGehee, Due Process of Law, 49, 60, 73, 76; Matter of Jacobs,

98 N. Y. 98, 106; Allgeyer v. Louisiana, 165 U.S. 578; Hovey v.

Elliott, 167 U. 8. 409; Guthrie, Fourteenth Amendment, 67;

Davidson v. New Orleans, 96 U. S. 97; Stuart v. Palmer, 74

N. Y. 183; U. S. Comp. Stat., 1901, pp. 801, 814, 855, 912,

913; Rev. Stat., U. S., §§ 1293, 1305-1308; Pollock’s Essays

in Jurisprudence, 212-221; 1 Holdsworth, History of English

Law, 277.

Article 4 of the Articles of War did not authorize the dis-

charge of the petitioner. Penal Code of Texas, Art. 698;

Bartemyer v. Iowa, 18 Wall. 129; Ex parte Virginia, 100 U. S.

339, 347.

If the maintenance of discipline or other necessities of the

army require that discretion to discharge without trial be given

to the Commander-in-Chief or other officers, it is a matter for

legislation and such discretion cannot be established by prece-

dent and should not be sanctioned by judicial legislation.

Act of February 2, 1901, 31 Stat. 748; Rev. Stat., U.S., §§ 1105,

1158, 1342; Act of June 16, 1890, 26 Stat. 157; Act of Octo-

ber 1, 1890, 26 Stat. 562; Act of February 27, 1890, 26 Stat.

13; Act of February 16, 1897, 29 Stat. 530; Act of May 17,

CRE ERIRIE™,

oe > wy ot

REID v. UNITED STATES. 533

211 U.S. Argument for Defendant in Error.

1886, 24 Stat. 50; Act of February 26, 1901, 31 Stat. 810;

Act of March 1, 1875, 18 Stat. 337; Smith v. United States,

38 C. Cl. 257, 273; McBlair v. United States, 19 C. Cl. 528,

541.

An enlisted man is not an officer of the Government within

the meaning of the act of March 3, 1887, as amended by the

act of June 27, 1898. Rev. Stat., U.S., § 1094, superseded by

Act of February 2, 1901, 1104, 1108, 1261, 1280; In re Grimley,

137 U. S. 147; United States v. Smith, 124 U. 8. 525, 532;

United States v. Mouat, 124 U. 8. 303; United States v. Ger-

maine, 99 U.S. 508; U. S. Comp. Stat., 1901, pp. 549, 753,

§ 707; United States v. McCrory, 91 Fed. Rep. 295; United

States v. March, 92 Fed. Rep. 689; Strong v. United States, 93

Fed. Rep. 257; McGregor v. United States, 134 Fed. Rep. 187;

United States v. Maurice, 2 Brock, 96; Mechem’s Public Offices

& Officers, §6; Articles of War, Art. 2; Rev. Stat., U. S.,

§ 1757.

The Solicitor General for defendant in error:

The court is without jurisdiction and the case should be dis-

missed. This court examines into its own jurisdiction or the

jurisdiction of the lower court of its own motion whether the

question is raised and discussed by counsel or not. Great

Southern Fire Proof Hotel Co. v. Jones, 177 U. 8. 449; Mans-

field &c. Ry. Co. v. Swan, 111 U.S. 379; Louisville &c. Ry. v.

Mottley, 211 U.S. 149.

As to the jurisdiction of this court: The amount involved is

$122.26. Under the Court of Claims statutes $3,000 must be

involved to enable a claimant to bring a case into this court

on appeal from the Court of Claims. § 707, Rev. Stat. The

Tucker Act, which re-defines and enlarges the claims jurisdic-

tion, and extends it to the District and Circuit Courts, makes

no difference in respect to jurisdiction and the right of appeal

between cases in the Court of Claims proper and such cases

in the District and Circuit Courts. The statutes governing

appeals in such cases in the District and Circuit Courts are the

534 OCTOBER TERM, 1908.

Argument for Defendant in Error. 211 U.S.

Court of Claims statutes and not the statutes generally gov-

erning appeals and writs of error in the District and Circuit

Courts. United States v. Jones, 131 U.S. 1; United States v.

Davis, 131 U.S. 36.

This case squarely presents the question whether § 14 of the

Circuit Court of Appeals Act so far repealed the Tucker Act

and the other Court of Claims statutes as to permit a claims

case involving less than the jurisdictional amount to be brought

to this court on appeal from a District Court when a consti-

tutional question is involved, although such case could not be

brought to this court on appeal from the Court of Claims.

The Government contends that it was not the intention of

Congress by this general repeal provision to disturb the pe-

culiar and special jurisdiction of the District and Circuit Courts

sitting as courts of claims.

A similar question was presented in the case of Dalcour v.

United States, 203 U.S. 408, where it was held that although

the Circuit Court of Appeals Act was intended to supersede

previous general provisions, it did not repeal a special act giv-

ing jurisdiction to the Supreme Court of appeals direct from a

District Court on a claim of title to public lands. The phrase

“unless otherwise provided by law” in § 6 of that act was held

in United States v. Dalcour, 203 U.S. 408, as relating to existing

and not future provisions of law, and as saving some although

not all existing provisions. Those words were inserted in the

statute to guard against implied repeals and that they are to

be construed as referring only to laws in force at the time of

the passage of the act. Law Ow Bew v. United States, 144 U.S.

47; and see also Louisville Public Warehouse Co. v. Collector,

49 Fed. Rep. 561; United States v. Sutton, 47 Fed. Rep. 129.

As to the jurisdiction of the lower court: The Tucker Act

(amendment of June 27, 1898, 30 Stat. 494) provides that the

jurisdiction thereby conferred upon the Circuit and District

Courts shall not extend to claims for compensation for official

services of officers of the United States. A private soldier,

although standing in emphatic contrast to an officer of the army,

EPI STL DPE LY OLS LS EN IPO NIE LT TLE, NTN I PATO HF TI

———

REID v. UNITED STATES. 535

211 U.S. Argument for Defendant in Error.

is fairly within the meaning of the term “officer of the Uni-

ted States” as used in the act. The legal definitions of officer

include within their scope a private soldier. 2 Bl. Com. 36;

Henly v. Mayor of Lyme, 5 Bing. 91; United States v. Hartwell,

6 Wall. 385; Mechem’s Pub. Offices and Officers, §1; United

States v. Morris, 2 Brock. 96; United States v. McCrory, 91

Fed. Rep. 295; Ex parte Smith, 2 Cr. C. C. 693; United States v.

Tinklepaugh, 3 Blatchf. 425; and this construction is in ac-

cordance with the legislative intent as shown by the proceedings

in Congress, and the necessity of concentrating all suits for

statutory compensation for official services in the Court of

Claims proper. Report House Judiciary Committee, No. 325,

55th Cong., 2d Sess.

As to the merits: No real constitutional question is involved.

The contention that plaintiff's discharge before the expiration

of his term of enlistment amounted to depriving him of prop-

erty without due process of law is untenable. The power to

appoint includes the power to remove. Public office or employ-

ment creates no vested right, and a soldier’s enlistment is not

different from any other public service. Parsons v. United

States, 167 U. 8. 324; Blake v. United States, 103 U. 8S. 227;

Street v. United States, 133 U.S. 299; Crenshaw v. United States,

134 U. 8. 99; Mullen v. Un?’ d States, 140 U.S. 169; United

States v. Blakeney, 3 Gratt.405; In re Morrissey, 137 U.S. 157.

The President has inherent constitutional authority as Com-

mander-in-Chief summarily to discharge a soldier; the right

has been expressly recognized by the Articles of War, and has

the sanction of uninterrupted administrative practice; and the

power involves an exercise of discretion not reviewable by the

courts. Ex parte Milligan, 4 Wall. 2; Legal Tender Case, 110

U.S. 421; Swaim v. United States, 165 U.S. 553; Articles of War,

1806, Art. 11, 2 Stat. 359; Hetzel’s Mil. Laws U.S. 36; § 1342,

Rev. Stat.; United States v. Kingsley, 188 U. 8. 87; Army

Regulations of 1821, Art. 71; Act of March 2, 1821, 3 Stat. 615;

Army Regulations, 1841, Art. 31; /d., 1857, Art. i9; Id., 1904,

par. 138; Martin v. Mott, 12 Wheat. 19.

536 OCTOBER TERM, 1908.

Opinion of the Court. 211 U.S.

By leave of court the Judge Advocate General of the Army

filed a brief as amicus curie.

Mr. Justice Houmes delivered the opinion of the court.

This is a suit for $122.26, alleged to be due to the plaintiff in

error as an enlisted man in the regular army from November 16,

1906, to July 18, 1907, when his term of service expired. The

plaintiff in error was one of the members of Companies B, C

and D, of the First Battalion of the Twenty-fifth United States

Infantry, who were discharged without honor by order of the

President on the former date, without trial, after certain dis-

turbances in Brownsville, Texas, in which the order averred

members of those companies to have participated. The pe-

tition alleges that the plaintiff in error had no part in the dis-

turbance and no knowledge as to who was concerned in it,

and denies the power of the President to make such a discharge.

The answer, after certain preliminaries, suggests for a second

defense that the District Court has no jurisdiction, by reason

of the act of March 3, 1887, c. 359, § 2, 24 Stat. 505, as amended

by the act of June 27, 1898, c. 503, §2, 30 Stat. 494, which

provides that the jurisdiction conferred “shall not extend to

cases brought to recover fees, salary, or compensation for

official services of officers of the United States,” ete. For a

third defense the answer alleges the investigations that were

made, the reported impossibility of identifying the culprits

unless the soldiers would take it in hand or turn State’s evi-

dence, the President’s belief that the crimes under considera-

tion were committed by a con iderable group of the members

of the regiment and that the greater part of the regiment must

know who were the guilty men, and the issuing of the order in

consequence, not as a punishment but for the good of the ser-

vice, and affirms that it was in accordance with precedent.

The third defense was demurred to, the demurrer was sus-

tained, the petition was dismissed on the merits and this writ

of error was brought.

REID v. UNITED STATES. 537

211 U.S. Opinion of the Court.

As the case comes here on the merits and not on a certificate

under the act of March 3, 1891, c. 517, § 5, 26 Stat. 826, the

first question that we have to consider is the jurisdiction of this

court, and on this point, without going further, we must yield

to the argument submitted, although not urged, on behalf of

the United States. The jurisdiction of the District Court is

derived from the act of March 3, 1887, ¢. 359, § 3, 24 Stat. 505,

by which it is made concurrent with that of the Court of Claims

when the amount of the claim does not exceed one thousand

dollars, and that of the Circuit Court is made concurrent for

amounts between one thousand and ten thousand dollars.

By § 4, the right of appeal “shall be governed by the law now

in force,” and by § 9, the plaintiff, or the United States, in any

suit brought under the provisions of the act “shall have the

same rights of appeal or writ of error as are now reserved in the

statutes of the United States in that Lehalf made.” This

meant the same right of appeal as was given from the Court of

Claims, United States v. Davis, 131 U.S. 36 ; So that it hardly

admits of doubt that when that statute went into effect an

appeal or writ of error under it by a claimant demanding less

than three thousand dollars would have been dismissed. Rev.

Stat., § 707. See Strong v. United States, 40 Fed. Rep. 183.

The real question is whether this limitation is done away

with or qualified by the act of March 3, 1891, e. 517, §§ 5, 6,

and 14, 26 Stat. 826. By § 14 “all acts and parts of acts re-

lating to appeals or writs of error inconsistent with the pro-

visions for review by appeals or writs of error in the preceding

sections five and six of this act are hereby repealed.” By $5,

writs of error may be taken from the District Courts direct to

this court when the jurisdiction of the court is in issue, the ques-

tion of jurisdiction alone being certified; in which case no other

question is open. United States v. Larkin, 208 U. 8. 333, 340.

That clause does not apply here. The only other clauses of

§5 that are or could be relied upon are “In any case that in-

volves the construction or application of the Constitution of

the United States.” “In any case in which the constitutionality

URES LEE RINE OE

Se Ee i a a eae

538 OCTOBER TERM, 1908.

Opinion of the Court. 211 U.S.

of any law of the United States . . . is drawn in question.”

The latter may be dismissed as having no bearing, although

it was mentioned, so that the possible application of § 5, and

the consequent inference that the former limitations on the

right to come to this court are repealed, so far as this case is

concerned, depend on the suggestion in the petition that by

his discharge the plaintiff was deprived of his property without

due process of law.

We shall not discuss that suggestion, because we are of opin-

ion that in any event the repealing words that we have quoted

do not apply to the special jurisdiction of the Distriet Court

sitting as a Court of Claims. Suits against the United States

can be maintained, of course, only by permission of the Uni-

ted States, and in the manner and subject to the restrictions

that it may see fit to impose. Kawananakoa y. Polyblank, 205

U. 8. 349, 353. It has given a restricted permission, and has

created a pattern jurisdiction in the Court of Claims, with a

limited appeal. The right to take up cases from that court by

writ of error still is limited as heretofore. It would not be ex-

pected that a different rule would be laid down for other courts

that for convenience are allowed to take its place, when orig-

inally the rule was the same. It does not seem to us that

Congress has done so unlikely a thing. The act of March 3,

1891, ¢. 517, is dealing with general, not special jurisdiction,

It has been decided in some cases of special jurisdiction that

there is an implied exception to almost equally broad words

in the same act. United States v. Dalcour, 203 U.S. 408. Con-

gress, when its mind was directed to the specific question, de-

termined for all courts what the amount must be before the

grace of the sovereign power would grant more than one hear-

ing. It has not changed that amount for the usual case. A

change looking to the ordinary business of the courts should

not be held to embrace that, merely on the strength of words

general enough to include it, when the policy of the repealing

law, and the policy of the law alleged to be repealed, have such

different directions, and when it appears that the general policy

yeep hi) SEARS aye PE RS eg OIE LR IE SPT OR HOKE NS ae

McLEAN v. ARKANSAS. 539

211 U.S. Syllabus.

of the latter still is maintained. The limitation with reference

to amount unquestionably remains in force for the District

Court in cases outside of the act of 1891, § 5, as well as for the

Court of Claims. In our opinion, the act of 1891, § 5, was not

intended to create exceptions, when no such exceptions exist

for the Court of Claims,

We observe that the plaintiff in error gives a hint at dis-

satisfaction with the Government for raising this point. But

jurisdiction is not a matter of sympathy or favor. The courts

are bound to take notice of the limits of their authority, and it is

no part of the defendant's duty to help in obtaining an unau-

thorized judgment by surprise.

Writ of error dismissed.

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