The sun., 1908-05-05
RIGHT TO DISMISS SOLDIERS
4 FONT IT ISSUE ~ SUIT OVER
BROWNSVILLE IFFRiI.


hers Of Companies y, and d OF the
Twenty.hfth Infantry, colored. for the
Brownsville ARRAY came up yesterday
afternoon before Judge Hough in the
United States District Court. The case is
that Of Oscar W. Reid, a private in Com
pany c, who has brought suit 10 recover
sl?2.26, the amount Of pay he would have
earned between the time he was dismissed
on November 10, 1905 until July Is. 1907,
the date Of the expiration Of the term Of
his enlistment,
The Reid suit is recognized as a test case,
and II he RECEIVERS in the action similar
suits will be instituted by the others dis
,harged. Chase Melen and Francis Wood
bridge appear for Reid while the Govern
mcnts side is being conducted by United
States District Attorney Stimson,
The case came up yesterday on the argu-
ment on Reds demurrer to section Of
tie Governments answer. The contention
OF Mr.. Mellen. who appeared for Reid,
WAS that the relations between the soldier
ard the Government amounted TO civil
contract which the President had no
authority TO abrogate. District Attorney
S,imson maintained that as the President
clearly has authority to dismiss without
tItil an officer Of the army he certainly
ha. power to dismiss a private.
Vt the end Of the argument, which lasted
,uhl : o'clock last night, Judge Hough
s.il no would require argument to show
that the relations between the Government
and the soldier amounted to a civil con-
tract and to show whether Congress had
ever transferred its right 10 dismiss soldiers
T., the President Briefs covering these
rorts are to be handed 10 Judge HOugh
before Wednesday.
United States District Attorney Stimson
la his answer to Reid's petition offered
,rrec dcfences, The first is a denial Of
tho petitioners allegation that the order
dsuiss.ng him was other than a real and
valid order issued pursuant to law. The
Constitution. the revised statutes and the
army regulations are quoted to show the
authority under which the President acted.
rhe second defence il that the court
las no jurisdiction in the suit, by reason
NJ the act which makes it impossible for
an officer Of the Government to bring such
suit.
Tho third defence, on which the de-
murrer was interposed, recites the occur
rences al Brownsville and the efforts made
hy the President to get at the facts. II
includes the reports made by army officers
sent hy the President 10 investigate the
riots and declares;
After full consideration Of all these various
iryestiEations and reports as well as of other
similar investigations and reports, and after
Icing advised and believing that the crimes
under consideration were beyond question
committed by a considerable group OF mem
hers Of the said regiment, and sftereNhausllng
without result every means known 10 him
ior discovering the identity Of such guilty
Non and after being advised and believing
nat the identity Of such men must in the ma
tnrs Of things be known to the m ajor portion
Of The regiment the President did finally
l..ua an order.
Tho defendant says that "the discharge
v.s not made as a punishment but for the
good Of the service and for the maintenance
~ ,he morale of the army and declares
rNa the order made without oOurt-martial
uas pursuant to precedents Of the army,
established by cases.
III arguing that either Circuit or Dis
rrict Court has concurrent jurisdiction In
such a case, Mr.. Mellen said that inasmuch
III only an officer Of the United States is
prevented from bringing such an action,
and an officer Of the United States, as de-
fined by a judicial decision, can only be
appointed by the President by and with
the consent Of the Senate, or by court OF
law or the head OF a department, Mr.. Mellen
argued that an enlisted man is merely a
contractor with the Government and en-
titled to the protection Of the Constitution
the same as any other citizens.
Mr.. Mellen quoted the Constitution 10
show that the powers 10 raise, support and
govern the army are vested in Congress
and that Congress has absolute power over
enlistment and discharge, and that accord
ingly the President cannot increase or
diminish the army by enlistment or dis
charge unless authorized or permitted by
Congress TO do so The only three possible
ways Of terminating the enlistment as laid
down by Congress are by expiration OF
term. consent Of both parties TO the con-
tract and breach Of contract,
III the President has power TO discharge
three companiee, why hasn't he the power
TO discharge the whole army merely on
suspicion; and II he has such power why
doesn't II absolutely nullify the provision
that Congress shall govern the army2'
sad Mr.. Mellen. when the Constitution
was adopted there was fear that the Presi-
dent might become a dictator, and every
effort was taken 10 make such course i'm
possible. II the President in this case merely
exercised his discretionary power, where
will such power endp'
Mr.. Mellen declared that, assuming
that the riotous disturbance was partici-
pated In by some OF the members OF the
battalion, that fact did not make just the
punishment OF the innocent; that the prece-
dents under which the President claims
to have acted had no application whatso-
ever In the present case, being formulated
after the order was given, and that II the
maintenance Of discipline or other necessl-
lies Of the army required that discretion
10 discharge without trial be given to the
Commander in Chief or other officers, II
was matter for legislation, and such dis
cretion cannot be established by precedent
and should not be sanctioned by judicial
legislation.
District Attorney stimson, in his reply
said that the assertion that private soldier