Iowa state bystander. [volume] (Des Moines, Iowa) 1894-1916, 1906-11-30

New York Times: Doubtless the action
OF the secretary Of war, in undertaking to
suspend the operation OF an executive or
der, issued In his own name, though with
out his personal privity. Is unprecedented
In American history. So for that matter,
- the order which it assumes to suspend.
The power OF summarily dismissing an
army or navy officer. a soldier or a sailor,
has often been exercised 1t has rarely
been exercised however, when the case
was not so clear that the victim could
not decently or plaustbly protest. The
dismissa! without honor" Of a whole bat
talon Of the United States army for an
offense which only . small minority Of
that battalion could have committed. or
was charged with committing. gave q
shock to the general sense OF justice. It
seemed to be forbidden by the implanted
sense OF their play and square DEAL"
1t seemed to be forbidden by the express
prohibition Of the fifth amendment to the
constitution. that mo person shall be de-
prtved OF life, liberty or property without
due process. of law" It was upon this
ground that the Times, the morning after
the presidents edict OF dismissal was is
sued, expressed the belief that Mr. Taft
could not have been consulted about the
order which was issued in his name.
There are three several aspects in which
the presidents order, thus brought into
question by the secretary of war, can be
viewed.
/. AS question OF law. Was due proc.
ess of law observed In the dismissal OF
this battalion. and, IL not was there a
dispensation in this case from that OBJ
servance? The question whether the
original amendments to the constitution,
known among lawyers as the bill Of
rights, and avowedly intended as re-
strlction upon the federal authority, APP
oil tn tHA ntNA S1ox Go Ia
which has been twice brought before the
supreme court. In the first case, the Mil
lken case, so memorable on other
grounds. 1t was not directly in ISSUE The
minority of the court. however, headed
BY Chief Justice Chase. laid down. as an
'obiter dlctum," that none Of the original
amendments applied or was intended to
apply to the military forces. In the sec
ond case, that Of Capt, Oberlin M. Carter,
the question came up directly. While the
case, on other points, was decided adj
versely to the appellant. the court re-
served Its decision on this point. But In
the context Of ahe unanimous opinion suf-
ffcient appears to warrant the conclusion
that the court would hold such OF the
original amendments applicable to the
army and navy as were not In conflict
with the constitutional power granted to
congress to provide for the government
OF the land and naval forces Of the Uni
ted states It may therefore safely be
concluded that the constitutional safe
guard Of ''due process OF law, while 1t
does not protect against summary dis
rnissal from the military service, does pro-
tect against the arbitrary action Of the
executive In assuming to inflict upon
discharged soldier. thus became civilian,
the punishment, without trial. Of dis
qualification for employment in the civil
service, even during the term Of the presi-
dent who issues the order, and even more
forever" or after the term OF that presi.
dent has expired. It seems, therefore.
that the president has clearly exceeded
"a A Z question Of administration. II
4 greatly to be regretted that the presi-
dent did not In this case allow the mill
tAry procedure to take IT. usual course.
Thas procedure might perfectly we'll have
htsn Initiated BY himself. It would have
bssa the convenlng of . court Of inquiry
q erdsr tudicially 70 ascsrtain the facts.
BsSore such tribunal every member o.