GR L 8179; (November, 1912)

EN BANC

G.R. No. L-8179; November 8, 1912

THEODORE E. ATKINSON, petitioner,

vs.
M.L. STEWART, ET AL., respondents.

T. L. McGirr, for petitioner.
Office of the Solicitor General Harvey, for respondents.

TRENT, J.:

The petitioner in this case, Theodore E. Atkinson, prays that a writ of habeas corpus be issued by this court requiring the respondents to produce his body, and that upon the hearing of the cause the respondents be ordered to release the petitioner and discharge him from custody.

The petitioner alleges that he is unlawfully detained and restrained of his liberty by the respondents because he was tried as a second lieutenant of the Philippine Scouts and sentenced by a court-martial a Cuartel de España, Manila, Philippine Islands, composed entirely of officers of the Regular Army of he United States; that said court-martial was illegally constituted of officers of the Regular Army and was incompetent and without jurisdiction to try him as a second lieutenant of the Philippine Scouts, and that therefore the sentence pronounced against him by said court is null and void.

The petitioner also alleges that he was tried without due process of law, and in violation of the seventy-seventh and seventy-eight Articles of War, and that the sentence pronounced against him by said court is not illegal but absolutely null and void.

The Acting Director of Prisons in his answer to the order to show a cause why the writ of habeas corpus should not issue has admitted that it is true that the petitioner is by him detained and restrained of his liberty by virtue of an order issued from the War Department of Washington, D. C., dated October 25, 1911, in which it appears that the petitioner was sentenced by a court-martial in Manila as follows:

To be dismissed the service of the United States and to be confined at hard labor, at such place as the reviewing authority may direct for a period of four (4) years.

This order further says:

The sentence having been approved by the convening authority and the record of trial forwarded for the action of the President, under the One hundred and sixth Article of War, the following are his orders thereon:

THE WHITE HOUSE,
Washington, October 14, 1911.

In the foregoing case of Second Lieutenant Theodore E. Atkinson, Philippine Scouts, the sentence is confirmed, but so much of it as relates to confinement at hard labor for a period of four years is mitigated to confinement at hard labor for a period of two years.

WM. H. TAFT.

Second Lieutenant Theodore E. Atkinson, Philippine Scouts, ceases to be an officer of the Army from October 25, 1911, and Bilibid Prison, Manila, Philippine Islands, is designated as the place for his confinement.

By order of the secretary of War.

LEONARD WOOD,
“Major-General, Chief of Staff.”

The prayer of the petitioner and the answer of the respondents to the order to show cause why the writ should not issue, raise the following question of law:

Are the officers and enlisted men of the Philippine Scouts in the Army of the United States part of the permanent military establishment of the United States, and as such triable before courts-martial composed of officers of the Regular Army? Article 77 of the Articles of War, relied upon by the petitioner, is as follows:

Officers of the Regular Army shall not be competent to sit on courts-martial to try the officers or soldiers of other forces, except as provided in article 78.

Article 78 is as follows:

Officers of the Marine Corps, detached for service with the Army by order of the President, may be associated with officers of the Regular Army on courts-martial for the trial of offenders belonging to the Regular Army, or to forces of the Marine Corps so detached; and in such cases the orders of the senior officer of either corps, who may be present and duly authorized, shall be obeyed.

Under article 77, Winthrop, in his work on Military Law and Precedents (2d ed., 92), says:

By “regular army” is to understood the permanent military establishment, as specially distinguished from volunteers, or militia in the federal service.

On April 22, 1898, about the beginning of the Spanish-American War, Congress passed an Act entitled “An Act to provide for temporarily increasing the military establishment of the United States in time of war, and for other purposes” (30 Stat. L., 361), and in section 2 of said Act provided as follows:

. . . That in time of war the Army shall consist of two branches which shall be designated, respectively, as the Regular Army and the Volunteer Army of the United States.

And in section 3 provided:

That the Regular Army is the permanent military establishment which is maintained both in peace and war according to the law.

And in section 4 provided:

That the Volunteer Army shall be maintained only during the existence of war, or while war is imminent, and shall be raised and organized, as in this Act provided, only after Congress has or shall have authorized the President to raise such a force or to call into the actual service of the United States the Militia of the several states: Provided, That all enlistments for the Volunteer Army shall be for a term of two years, unless sooner terminated, and that all officers and men composing said Army shall be discharged from the service of the United States when the purposes for which they were called into service shall have been accomplished, or on the conclusion of hostilities.

Thereafter, on March 2, 1899, Congress passed an Act entitled “An Act for increasing the efficiency of the Army of the United States, and for other purposes” (30 Stat. L., 977), and in the enacting clause provided as follows:

That from and after the date of approval of this Act the Army of the United States shall consist of three major-general, six brigadier-generals, ten regiments of cavalry, seven regiments of artillery, twenty-five regiments of infantry, an adjutant-general’s department, an inspector-general’s department, a judge-advocate-general’s department, a quarter-master’s department, a subsistence department, a medical department, a pay department, a corps of engineers, an ordinance department, a signal corps, thirty chaplains, to be assigned to regiments or posts in the discretion of the Secretary of War, the officers of the Record and Pension Office, the officers and enlisted men of the Army on the retired list, the professors, corps of cadets, an army-service detachment and band at the United States Military Academy, and such other officers and enlisted men as may hereinafter be provided for: . .

It will be noted that the Act of April 22, 1898, provided for “temporarily increasing the military establishment of the United States in time of war.” This Act was passed when the United States was at war with Spain, and it expressly provided for a volunteer army, and “That the Regular Army is the permanent military establishment, which is maintained both in peace and war according to law.” The Act of March 2, 1899, was “An Act for increasing the efficiency of the Army of the United States,” and it provided in section 12 for raising a force of not more than 35,000 volunteers, with a proviso that such increased regular and volunteer force should continue in service only during the necessity therefor and not later than July 1, 1901. This Act shows on its face that it was intended to meet the exigencies of the military service and that its provisions were temporary in character, and that the increased forces were to be mustered out on or before July 1, 1901. In the meantime, on February 2, 1901, when the Spanish-American War has ended, and the Philippine Insurrection was about to terminate, Congress passed an Act entitled “An Act to increase the efficiency of the permanent military establishment of the United States” (31 Stat. L., 748), and in the enacting clause provided as follows:

That from and after the approval of this Act the Army of the United States, including the existing organizations, shall consist of fifteen regiments of cavalry, a corps of artillery, thirty regiments of infantry, one lieutenant-general, six major-generals, fifteen brigadier-generals, an adjutant- general’s department, an inspector-general’s department, a judge-advocate-general’s department, a quartermaster’s department, a subsistence department, a medical department, a pay department, a crops, the officers of the Record and Pension Office, the chaplains, the officers and enlisted men of the Army on the retired list, the professors, corps of cadets, the Army detachments and band at the United States Military Academy, Indian Scouts as now authorized by law, and such other officers and enlisted men as may hereinafter be provided for: . .

In the Act of April 22, 1898, above quoted, Congress provided: “That the Regular Army is the permanent military establishment, which is maintained both in peace and war according to law.” It must be noted that the Act of February 2, 1901, is entitled “An Act to increase the efficiency of the permanent military establishment of the United States,” and that the enacting clause makes the Indian Scouts, as already authorized by law, a part of said permanent military establishment, and in same clause makes a part thereof “such other officers and enlisted men as may hereinafter be provided for.” This Act further provided in section 36:

That when in his opinion the conditions in the Philippine Islands justify such action the President is authorized to enlist natives of those Islands for service in the Army, to be organized as scouts, with such officers as he shall deem necessary for their proper control, or as troops or companies, as authorized by this Act, for the Regular Army . . .

The Act of April 22, 1898, provided that in time of war the Army should consist of two branches, the Regular Army and the Volunteer Army. The Volunteer Army expired by operation of law on July 1, 1901. Hence, the Army now in time of peace consists of one branch, the Regular Army. The Regular Army is the permanent military establishment maintained both in peace and war; the Indian Scouts are now part of the permanent military establishment; the Philippine Scout exist under the same Act which makes the Indian Scouts part of said permanent military establishment, and the Philippine Scouts were actually organized and are being maintained in time of peace as a part of the permanent military establishment of the United States.

The petitioner in this case relies upon the seventy-seventh Article of War, above quoted, and the decision of the Supreme Court of the United States in the case of McClaughry vs. Deming (186 U.S., 49) to support his contention that the Philippine Scouts are “other forces” and not a part of the Regular Army.

The Deming case was first filed in the Circuit Court of the United States for the district of Kansas, which court denied the petition of Peter C. Deming for a writ of habeas corpus. The facts were as follows: Deming was on March 29, 1900, a captain in the subsistence department in the Volunteer Army of the United States. On that date General Shafter, a major-general of the Volunteer Army, ordered that a general court-martial composed entirely of officers of the Regular Army should convene “for the trial of Capt. Peter C. Deming, assistant commissary of subsistence, U.S. Volunteers.” The court-martial thus called tried Deming upon some charge and sentenced him to dismissal from the service of the United States, and to confinement in the penitentiary for three years, and this sentence was approved by the Secretary of War and confirmed by the President of the United States. Deming was confined in the penitentiary at Leavenworth, Kans., under a mittimus based on this judgment. Deming averred that the sentence was void, and that he was illegally deprived of his liberty because, among other things, the court-martial which condemned him was not regularly constituted or organized, in that it was composed entirely of officers of the Regular Army who were expressly prohibited to hear or determine any charge against an officer of the Volunteer Army under the Seventy-seventh Article of War. (See Deming vs. McClaughry, 113 Fed., 639, 640.) The Circuit Court of the United States denied the petition of Deming for the writ of habeas corpus, and Deming appealed to the Circuit Court of Appeals, Eight Circuit, and in a very elaborate opinion by Judge Sanborn that court sustained Deming’s contention and held as follows:

Officers of the Regular Army are incompetent, under the Seventy-seventh Article of War, to try the officers or soldiers of the volunteer forces raised under the acts of April 22, 1898, and March 2, 1899 (30 Stat., 361, c. 187; Id., 977, c. 352).

In the course of the decision of the Circuit Court of Appeals, after reviewing the history of legislation relating to the matter of the regular forces and the volunteer forces of the Army of the United States, and the trial of officers and soldiers of said forces before court-martial, Judge Sanborn said (p. 644):

The decisions of the courts had recognized the two forces as different — the one as temporary, called forth by the exigency of the time, to serve during the war or its imminence, and then to be dissolved into its original elements; the other as permanent and perpetual, to be maintained in peace and war.

After an elaborate discussion of the question of whether or not the Volunteer Army raised under the Acts of April 22, 1898, and March 2, 1899, were part of the Regular Army, Judge Sanborn stated the conclusions of the court as follows (p. 649):

These facts and the considerations to which we have adverted have irresistibly forced our minds to the conclusion that the volunteer force raised under the Act of 1899 was not the same force as the Regular Army, but that it was one of the `other forces’ specified in article 77, and that the officers of the Regular Army were forbidden by that article to sit on any court-martial to try the petitioner, who was an officer of the volunteer force raised under the Act of 1899.

The decision of the Circuit Court of Appeals was rendered on February 10, 1912. An appeal was promptly taken to the Supreme Court of the United States, where the case was argued on April 28-29, 1902, and was decided on May 19, 1902, affirming the decision of the Circuit Court of Appeals. (See McClaughry vs. Deming, 186 U.S. 49.)

An examination of the decision of the Supreme Court written by Mr. Justice Peckham will show that the court considered only the Act of April 22, 1898(30 Stat., 361), and the Act of March 2, 1899 (30 Stat., 977), and found that in said Acts the distinction was kept up in mind of Congress, between the Regular Army and Volunteer Army of the United States, and that the declaration of section 2 of the Act of 1898, which provides that in time of war the army shall consist of two branches which shall be designated, respectively, as the Regular Army and the Volunteer Army of the United States, is a plain recognition by Congress of the difference between the two forces. The court said (pp. 59, 60):

The Act of 1899 does not assume to repeal that of 1898, excepting some specific provisions thereof, such as are mentioned in section eleven of the Act of 1899. The balance of the earlier Act remains in force, except as to any provision which may be in conflict with the Act of 1899. Upon this particular matter of a distinction between the Regular Army and the Volunteer Army, there is no inconsistency between the two Acts, and therefore the Act of 1898 on that subject remains in connection with that of 1899.

In conclusion on this point the court said (p. 62):

We conclude that the Acts of 1898 and 1899 still left the Volunteer Army as a separate or other force from the Regular Army of the United States.

As before observed, the Act of 1898 provided for “temporarily increasing the military establishment of the United States in time of war;” and the Act of 1899 was an Act “for increasing the efficiency of the Army of the United States;” and both acts provided for the organization and maintenance of temporary troops called the Volunteer Army of the United States; but the Acts of February 2, 1901, was passed for a very different purpose, as shown by its title and its provisions. It is entitled “An Act to increase the efficiency of the permanent military establishment of the United States.” The Volunteer Army, which had been organized and maintained under the Acts of 1898 and 1899, was under the law to be mustered out on or before July 1, 1901, and Congress in the Act of February 2, 1901, intended to increase the efficiency of the “permanent military establishment of the United States,” that is, the Regular Army.

There is and can be no Volunteer Army in time of peace. The very acts providing for the organization of a Volunteer Army shows on their face that the Volunteer Army was of a temporary character. Congress did not make the Philippine Scouts a temporary or volunteer force, and they do not correspond to State militia, but are a part of the United States Army under an Act of Congress that relates solely to the permanent military establishment. While said Act does not purport to provide for temporary forces in the Army of the United States, it does provide for a “provisional regiment” of infantry for service in Porto Rico; but this regiment was, in fact, treated by Congress as part of the permanent military establishment in time of peace, and in the appropriation bill of March 2, 1903 (32 Stat., 934), under the heading “Philippine Scouts,” Congress provided “that citizens of Porto Rico shall be eligible for enlistment in the Regular Army, and the Porto Rico regiment may be ordered for service outside of the Island of Porto Rico;” and by section 1 of the Act of May 27, 1908 (35 Stat., 392), Congress provided that “on and after the 30th day of June, 1908, the Porto Rico provisional regiment of infantry shall be designated the Porto Rico regiment of infantry of the United States Army;” that is to say, the word “provisional” was dropped from the name of the regiment and its permanent character in the military establishment made certain.

It therefore appears that the distinction that is made in the Articles of War between the officers of the Regular Army and officers of other forces, which distinction is applicable to the Volunteer Army organized under the Acts of 1898 and 1899, does not exist between the Regular Army and the permanent forces maintained in time of peace, called the Philippine Scouts in the United States Army. All the forces provided for in the Act of February 2, 1901, are parts of the permanent military establishment, which is maintained both in peace and war,” which was the definition of “Regular Army” given in section of the Act of April 22, 1898.

In this connection it may be noted that section 4 of the Act of April 22, 1898, provides:

. . . That all enlistments for the Volunteer Army shall be for a term of two years, unless sooner terminated, and that all officer and men composing said army shall be discharged from the service of the United States when the purposes for which they were called into service shall have been accomplished, or on the conclusion of hostilities.

And the Act of March 2, 1899, in section 12, provides:

. . . That such increased regular and volunteer force shall continue in service only during the necessity therefore, and not later than July 1, 1901.

The Act of February 2, 1901, contains no such provision or any similar limitation as to the enlistment of Philippine Scouts; in other words, the Philippine Scouts are part of the permanent military establishment of the United States, and are enlisted in the same manner and for the same term as other soldiers of the United States Army under existing law, and are now and will continue to be a portion of the United States Army, maintained both in peace and war, until action by Congress providing for their discharge or discontinuance, the same as might be the case with cavalry or infantry regiments.

This is the interpretation given by the President and the Secretary of War to the Acts of Congress relating to the Army. The President, in reviewing the record in Atkinson’s case, after his trial as a second lieutenant of Philippine Scouts in the United States Army by a court-martial consisting of infantry, cavalry, and artillery officers, as well as in reviewing other cases of the same kind, has given his sanction to this interpretation of the law.

In the decision of the Supreme Court of the United States in the case of Deming vs. McClaughry (113 Fed., 641), Judge Sanborn said:

But the opinions of the officers of the executive department of a Government relative to the construction of a statute whose execution has been intrusted to them justly command and should receive the careful consideration of the courts, and in doubtful cases they should be permitted to lead the way to their decisions. Their opinions ought not to be overruled or disregarded unless upon a deliberate and careful review of the decisions which they render it clearly appears that they are tainted with error. On the other hand, the decisions of these officers are not controlling or conclusive upon the courts. It is the function and duty of the judicial department of the Government to construe its statutes and to declare their meaning. That duty the courts may not renounce or abandon to others, and in its discharge they must exercise their own independent judgments, guided only by the established principles of the law and the recognized canons of interpretation. While the opinions of the officers of the executive department of the Government may be permitted to lead the way to the proper construction of ambiguous statutes intrusted to them to enforce, yet where the words of the act are plain, and their meaning is clear, these must prevail.

lawphil.net

On August 25, 1902, upon hearing the result of the appeal to the Supreme Court of the United States in the case of McClaughry vs. Deming (186 U. S., 49), the commanding general in Manila sent a cablegram to Washington, as follows:

MANILA, P. I., August 25, 1902.

AGWAR, Washington.

Shall we continue to try officers — enlisted men Philippine Scouts, court composed of regular officers?

x x x x x x x x x

CHAFFEE

And the following reply was received:

WASHINGTON, September 4, 1902

CHAFFEE, Manila.

Acting Secretary of War decides officers and enlisted men, Philippine Scouts, will continue to be tried by courts composed of regular officer.

CARTER.

For more than ten year this construction of the Act of February 2, 1901, has continued.

It can be said that this Act clearly shows that the Scouts are “other forces.” The question, at least, is very doubtful. Consequently, the opinions of the officers of the executive department relative to the construction of said Act should not be disturbed under the circumstances. These officers have been directly entrusted with the execution of the Act and the procedure which has been established and followed so long should not be set aside. These executive officers, in reaching their conclusions, no doubt took into consideration the whole of the Act, and especially that part wherein it is stated that “the President is authorized to enlist natives of those Islands for service in the Army.” The real reason why the Seventy-seventh Article of War declares that officers of the Regular Army are not competent to sit on courts-martial to try the officers and soldiers of other forces does not exist in the case at bar, that reason being, as stated by the court (p. 644) in the case of Deming vs. McClaughry (supra), that —

The officers of the Regular Army are generally taught in their youth the laws that govern the regular force, that high regard for truth and honor, and that prompt and exact obedience to orders which condition its high efficiency. The officers of the volunteers spend their earlier days without knowledge of military law, preparing for agriculture, mechanical, mercantile, or professional pursuits, unaccustomed to military discipline, and exempt from the controlling commands of superiors. The officers of the Regular Army make the discipline of that army, the preparation for war, and war itself the work of their lives. Their hopes and their aspiration are to excel in this, their chosen profession, and upon it they rely for their livelihood. The officers of the volunteers look to civil pursuits for their ultimate success and sustenance. They leave these pursuits for a few short months at the call of their country to subdue a rebellion against or to defeat an enemy of their nation. They seek not so much to discipline the army they join, and to prepare it for war, as to speedily conclude the war, hopes and aspirations center, not in their temporary occupation, but in the pursuits they have left, and to which they are soon to return. More than all this, the officers of the Regular Army know the unwritten code of military thought and action, and the habit of the trained soldier’s life, and know them so well that their practice is involuntary, while a neglect of them seems inexcusable. The officers of the volunteer force come to the army in ignorance of this code and custom. They have short time to learn or to practice them. Their invariable practice does not always seem to them essential to the defeat of the enemy and a speedy peace, and the heinousness of a disregard of some of their requirements does not always impress them. So it is that the thoughts, actions, habits, and ambitions of the officers of the Regular Army differ widely from those of the volunteers. Many things in the life of the soldier seem vital to the former that have small importance in the eyes of the latter. Many military offenses seem heinous to the former that appear venal to the latter . . .

The decision in McClaughry vs. Deming was based upon (1) the plain provisions of law which prohibited the trial of members of the Volunteer Army by courts-martial composed of Regular Army officers, and (2) an exposition of the reasons underlying such legislation. The law applicable to that case, as remarked by Judge Sanborn, was so plain that “the question does not seem difficult, nor the true answer to it doubtful.” As so admirably set forth in his decision, the whole trend of legislation, judicial decision, and practice has been to sharply distinguish between the Regular Army and the militia or volunteers in the matter of courts-martial. The question raised by the petition is, we believe, an open one is to the courts. We have attempted to show that both the legislative and executive branches of the Government have ruled that the organization to which petitioner belonged is a part of the Regular Army. In the quotation from McClaughry vs. Deming (supra) are set forth many cogent reasons for the position taken in that case. The officer of the Regular Army, because of his totally different conception of military service, is shown to be unfit to sit in judgment upon the offenses of the Volunteer Army officer. Military service is the vocation of the one, the avocation of the other. To the one obedience to orders is an end; to the other a means to an end. The one realizes the full significance of a means to an end. The one realizes the full significance of a soldier’s creed; the other is handicapped by his unfamiliarity with that creed. These are some of the potent arguments which impelled the various departments of the Government to recognize the unjustness and impracticability of allowing officers of the Regular Army to sit on courts-martial for the trial of Volunteer Army officers. In the case at bar, counsel advances an ingenious interpretation of the law which will exclude the Philippine Scouts from the Regular Army, classify them as “other forces” within the meaning of the Seventy-seventh Article of War, and free his client from a prison sentence. His only argument in support of this proposition sentence. His only argument in support of this proposition is the technical one that the laws so reads. Were such the case, that reason alone would be sufficient for us to acquiesce in that interpretation of the law. It would be unnecesary nor would we ask or seek for other reasons for supporting counsel’s contention. But counsel’s interpretation of the law is at best a doubtful one. Laws are, as a rule, based upon reason and justice. The underlying principle of a law, the motives of the legislature in enacting it, and the effect of its practical operation, are all matters properly to be considered where its language in so far ambiguous as to require the application of judicial rules of construction and interpretation. Counsel has invited our attention to none of these matters but he has cited the case of Deming vs. McClaughry. Are the underlying principles of that case applicable to the petitioner? The Philippine Scouts, on their organization, were officered above the grade of first liuetenant by officers of the Regular Army. Its staff officers and first and second lieutenants were selected from noncommissioned officers or enlisted men of the Regular Army with not less than two years’ service, or by members of the volunteers army who had served subsequent to a specified date. The Articles of War and the regulations governing the Regular Army were applicable to the Scouts from the outset and are still applicable. The same drill regulations are used by both forces. The equipment of the two forces is very similar. They are paid from a common fund by the same force of paymasters. (33 Stats. L., 259.)Those enlisted men of the Regular Army who become officers of the Philippine Scouts receive credit for such service on the same basis as if they were serving in the Regular Army in computing the date of their retirement from the service. Counsel states that the petitioner himself served as private, corporal, and sergeant in Company B of the Twentieth United States Infantry. With all these points in common, can it be said that a different or higher conception of discipline or duty prevails in the one organization than in the other? Is it reasonable to presume that the commanding officers of the Scouts, fresh from their experience in the Army and teaching the same regulations to their troops that they themselves were taught to respect and obey, will place a different or laxer interpretation upon those regulations in their new positions? Such a presumption can not be indulged in. The discipline is the same. No officer of the Scout organization can consistently plead his ignorance of or unfamiliarity with the strict military code when he comes from organization which has developed and carried into practice that code which he was trained to obey long before he entered upon his duties as a Scout officer, and which, in his new position, he is obliged to respect and enforce. The reason of the rule promulgated by article 77 of the Articles of War, so ably expounded by Judge Sanborn, is not applicable to the Philippine Scouts. The Philippine Scouts are a part of the Regular Army of the United States. (Digest of Opinions of Judge-Advocate-General of the United States Army, citing file C-19272, March 14, 1906.)

For the foregoing reasons, we conclude that the Philippine Scouts are not “other forces” within the meaning of the Seventy-seventh Article of War. The petition is therefore denied, with costs.

Arellano, C.J., Torres, Mapa, Johnson and Carson, JJ., concur.

Batas Pinas