New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1908-05-16
THE PRESIDENT UPHELD
UINS BROWNSVILLE TEST.
Backers of Negro Troops Say They
Viii Appeal.

~ III n ppW.
The test case brought to reinstate the negro SOL
oiers discharged from the army after the Browns
Vile affair decided in favor of the government
yesterday by Judge Hough, in the United States
District Court. The court overruled the demurrer
fled by the petitioner the governments answer
The action brought in the name of Oscar w
Reid one OF the discharged privates. He asked TO
recover the pay and emoluments that would have
come TO him in the service from the date Of the
discharge the expiration Of the three years term
q enlistment II was an open secret. however
that the money for the action supplied by 4
number Of white men. mostly New Englanders-
Yesterday Chase MelIen. OF Mellen & Woodbridge.
counsel for Reid. said he could not furnish the
names Of these men. because they did not wish to
be annoyed by persons who would want them to
nav fer other suits. He said that many letters had
been received at his office from persons some OF
them Cranks. asking if the same men who were
paving for Reds suits would also back them
The writers. however, were not other negro sol
diers. since the discharged men have recognized
this test case for The benefit OF all Of them
To show that the is not dropped Mr. Melen
issued the following statement:
An appeal will be taken the Supreme Court
81 Washington from Judge Housh's decision We
s1-irina1ed the proha hility that such an appeal
would be necessary. since il is generally &C
declare an act Of Congress or Of the executive
invalid unless the invalidity be clear beyond rea-
sonabe doubt No case similar 10 the present mas
been brought TO the attention OF the courts. prob,
because
unlimited power dismiss otherwise punish
members Of the army. The Supreme Court is me
this Importance and we shall therefore lay the
case before il at the earliest cate rossloie not e
Judge Houghs views
In sustaining the argument Of United States At
rornc- Henry Ia Stinson Judge Housh rehearsed
the facts in the case and said that Reid had
brought suit under the Tucker act. which "neces-
sarily implied that claim was asserted on con-
tract expressed implied with the government OF
the United States. Continuing. the decision states
separate defence contained in the answer sets
statement hereinabove made. and AYERS that the
order Of the President and The SAID dsehase S9l
toner of the others. but for the good OF me
81 the army To this defence there is general
General matters discussed at bar must be laid
aside immaterial 10 the disposition OF this
Whether Reid or his comrades any Of them
guilty Of the riotous disturbance in question:
SrscSion IF GOOD order or military discipline
whether he is in fact desirable soldier. or Knew
OF T nppeyafors Of the BroWnsve riot
Sc far etian e'q Rs e Dnnecessariiy
cruel or unjust-are questions beyond this judi
The material inquiries seem to me very few
The nature Of soldiers contract OF enlistment en-
has been sufficiently treated: in re Grumley; 49,.
IA! By his oontTsct the burden OF 81. IiIaee e
years. unless sooner discharged by proper au-
do not give assent to the assertion that SOL
dier's engagement is or bears much resemblance
10 q civil contract of hire, but the assumption
trnost favorable 10 the petitioner that II Is Sucn
contract il is ternnable al VIII, II that VIII De
expressed through proper officer
This petitioner was SO Tar as forInalitles at
tending his severance from the service are con
cerned. properly discharged-that is his dis
charge paper correct in form and signature.
and SO much is not denied. But the authority
causing and directing his discharge was the Pres
tdent of the United States. who personally gave
the order therefor. that the final question upon
me esscnlpllofls very Ia I4s 80
IS whether the President, as commander in chief
1z -h1 ie terminate
in invitum soldiers enlistment
either Oh there he inherent constitutional au-
fhority in the President commander in chief so
10 do. % there be such authority in the alb
defining regulating the commanders powers:
or il 49, in this the President acted in &C
latinE the army and discharges therefrom
Judge Hough then quoted the articles Of war in
support Of his opinion and ended by saying:
II is however further asserted that in
fraction Of law wrought by forcing upon Reid
2 sdischsrge without honor" The phrase is not
known the statutes: = is found only in the
army regulations. which are from time to time
bind Secretary that makes them, and much
less the commander in chief
the 1usutum or kind Of character that should be
given him. not being regulated by statute, must
necessarily be left 10 the discretion OF the execn-
tive officer having power TO grant some klnd ol
discharge That II is beyond the power OF the
judicial branch coerce review the discretion
% the is familiar doctrine. while that
discharge with a very bad character is not pun
ishment 20 the discharged within the mean
Ing Of any federal statute is settled by L 3 VS.
The demurrer is overruled, and that portion
Of the answer derlurred 10 presents in my Judg,,
Judgment is directed in favor the government
and against the petitioner. with costs to be taxed