| S.D.N.Y. | May 14, 1908
(after stating the facts as above). Several matters discussed at bar must be laid aside as immaterial to the disposition of this cause. Whether Reid or his comrades, or any of them, were guilty of the riotous disturbance in question"; or whether Reid personally committed any infraction of good order or military discipline; or whether he is in fact a desirable soldier; or whether he knew or withheld anything tending toward the discovery óf the perpetrators of the Brownsville riot; or whether, so far as Reid or others are concerned, the President’s action was unnecessarily severe, cruel, or unjust — are questions beyond this judicial investigation.
The material inquiries seem to me very few. The nature of a soldier’s contract of enlistment has been sufficiently treated in Re Grimley, 137 U.S. 147" court="SCOTUS" date_filed="1890-11-17" href="https://app.midpage.ai/document/in-re-grimley-92867?utm_source=webapp" opinion_id="92867">137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636" court="SCOTUS" date_filed="1890-11-17" href="https://app.midpage.ai/document/in-re-grimley-92867?utm_source=webapp" opinion_id="92867">34 L. Ed. 636. By his contract Reid assumed the burden of military service, not for a definite time, but for three years, “unless sooner discharged by proper authority.” Nothing is expressed in the enlistment papers as to what reasons shall be sufficient for early discharge, and, if the engagement be treated merely as a civil contract of hire, the government would be entitled to dispense with Reid’s services under it at any time, provided the authority, i. e., the officer directing discharge or dismissal, be “proper.” In other words, if enlistment be no more than a hiring- by civil contract, under this particular contract, the corporate master may discharge the servant whenever he pleases, and for or without cause, provided only the officer directing discharge be “proper authority.”
I do not give assent to the assertion that a soldier’s engagement is or bears much resemblance to a civil contract of hire; but, on the assumption (most favorable to petitioner) that it is such a contract, it is, on the part of the government, a general contract terminable at will, if that will be expressed through a proper officer. Martin v. New York Life Ins. Co., 148 N. Y. 118, 42 N.E. 416" court="NY" date_filed="1895-12-19" href="https://app.midpage.ai/document/martin-v-new-york-life-insurance-3629452?utm_source=webapp" opinion_id="3629452">42 N. E. 416. This petitioner was, so far as formalities attending his severance from the service are concerned, properly discharged; that is, his discharge paper was correct in form and signature, and so much is not denied. But the “authority” causing and directing his discharge was the President of the United States, who personally gave the order therefor, so that the final question, upon assumptions very favorable to petitioner, is whether the President, as Commander in Chief of the Arm}', is “proper authority” to terminate in invitum a soldier’s enlistment. This question must be answered affirmatively, if either (1) there be in
As to the first and second of these last queries, no opinion is expressed, because the last question must in my judgment be answered unfavorably to the petitioner.
The articles of war constitute the only statutory declaration concerning discharges from the military service (Rev. St. § 1312 [U. S. Comp. St. 1901, p. 915]). Article 4 provides:
“ * * * No discharge shall be given to any enlisted man before bis term of service has expired except by order of the President, the Secretary of War, the commanding officer of a department or by sentence of a general court martial.”
And this language has remained unchanged in the statutes since 1806.
I am quite unable to perceive how the President’s right to terminate a soldier’s engagement could be more explicitly recognized, and indeed conferred, if recognition seems to imply some antecedent right. This fourth article of war clearly assumes that discharges may be granted before expiration of service; the power to grant them implies the power to impose them, unless a soldier have some rights inherent in his contract or inferable from the nature of his occupation. This petitioner’s contract is civilly but a hiring at the will of the employer, while the nature of his occupation, so far from varying that status, has been frequently so judicially defined as to leave no doubt of congressional intent. “The recruit is bound to serve during the full term of his enlistment, but * * * the government is not bound to continue him in service for a single day, but may dismiss him at the very first moment or at any subsequent period whether with or without cause for so doing.” United States v. Cottingham, 1 Rob. (Va.) at page 629, 40 Am. Dec. 710" court="Va." date_filed="1843-02-15" href="https://app.midpage.ai/document/united-states-v-cottingham-6801699?utm_source=webapp" opinion_id="6801699">40 Am. Dec. 710.
The civil compact usually requires for its dissolution the mutual consent of the parties, but “the military compact may be dissolved at any moment by the supreme authority of the government.” U. S. v. Blakeney, 3 Grat. (Va.) 405, cited in Re Morrissey, 137 U. S., at page 159, 11 Sup. Ct. 57, 34 L. Ed. 644" court="SCOTUS" date_filed="1890-11-17" href="https://app.midpage.ai/document/in-re-morrissey-92868?utm_source=webapp" opinion_id="92868">34 L. Ed. 644. And this historical view of the soldier’s relation to the government or the crown antedates the founding of this nation and is the accepted doctrine of the British military establishment upon which ours was modeled. In re Tuffnell, L. R. 3 Ch. Div. 173.
Even if, therefore, there be no inherent power of control over the military forces of the nation vested in its constitutional Commander in Chief, and even if, also, there be no grant of power contained in that title in the absence of congressional gift thereof (concerning which no opinion is expressed only because I do not find the discussion necessary for this case), the statutory grant contained in the fourth article of war must be interpreted in the light of military practices, customs, and procedure well known and judicially recognized long
It is, however, further asserted that some infraction of law was wrought by forcing upon Reid a “discharge without honor.” The phrase is not known to the statutes. It is found only in the army regulations, which are from time to time promulgated by the Secretary of War, but do not bind the Secretary that makes them, and much less the Commander in Chief. Smith v. U. S., 24 Ct. Cl. 209" court="Ct. Cl." date_filed="1889-02-18" href="https://app.midpage.ai/document/in-re-smith-8582682?utm_source=webapp" opinion_id="8582682">24 Ct. Cl. 209. The exact method of this soldier’s discharge and the quantum or kind of character that should be given him, not being regulated by statute, must necessarily be left in the discretion of the executive officer having power to grant some kind of discharge. That .it is beyond the power of the judicial branch to coerce or review the discretion of the executive is familiar doctrine, while that a discharge with a very had character is not a punishment to the man discharged within the meaning of any federal statute is settled by U. S. v. Kingsley, 138 U.S. 87" court="SCOTUS" date_filed="1891-01-26" href="https://app.midpage.ai/document/united-states-v-kingsley-92934?utm_source=webapp" opinion_id="92934">138 U. S. 87, 11 Sup. Ct. 286, 34 L. Ed. 896.
The demurrer is overruled, and, as that portion of the answer demurred to presents in my judgment' a complete defense to the petition, final judgment is directed in favor of the government and against the petitioner.