Deming v. McClaughry

• Decision Date: 10 February 1902
• Docket Number: 1,656.)
• Parties: DEMING v. McCLAUGHRY, Warden of U.S. Penitentiary, Ft. Leavenworth, Kan.
• Court: U.S. Court of Appeals — Eighth Circuit

113 F. 639

DEMING v. McCLAUGHRY, Warden of U.S. Penitentiary, Ft. Leavenworth, Kan.

No. 1,656.)

United States Court of Appeals, Eighth Circuit.

February 10, 1902

Syllabus by the Court.

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).

The writ of habeas corpus is not available to review an erroneous judgment of a court having jurisdiction. But it is effective to challenge a judgment rendered by a court without jurisdiction, and to relieve the defendant from its effect.

A court-martial is a court of inferior and limited jurisdiction. Proof (1) that it was convened by an officer empowered by the statutes to call it; (2) that the officers whom he commanded to sit upon it were of those whom he was authorized to detail for that purpose; (3) that the court thus constituted was vested with power to try the person and the offenses charged; and (4) that its sentence was in conformity to the statutes,-- is indispensable to its jurisdiction and to the validity of its judgment or sentence.

A court-martial is a court of inferior and limited jurisdiction. Proof (1) that it was convened by an officer empowered by the statutes to call it; (2) that the officers whom he commanded to sit upon it were of those whom he was authorized to detail for that purpose; (3) that the court thus constituted was vested with power to try the person and the offenses charged; and (4) that its sentence was in conformity to the statutes,--is indispensable to its jurisdiction and to the validity of its judgment or sentence.

No officer is authorized, but every officer is forbidden, to constitute of officers of the regular army a court-martial to try a volunteer, and the judgment of such a court-martial against a volunteer is without jurisdiction and void.

The opinion of officers of other departments of the government relative to the construction and effect of statutes intrusted to them to enforce deserve serious consideration, and may well lead the way to decisions where the statutes are ambiguous and their meaning doubtful. But it is a duty of the courts, which they may not renounce, to interpret legislation by their own judgments; and where the words of a statute are clear, and its meaning plain, these must prevail notwithstanding the opposing opinions of officers of other departments of the government.

John H Atwood (William W. Hooper, on the brief), for appellant.

E. H Crowder and Edward A. Rozier (George C. Hitchcock, on the brief), for appellee.

This is an appeal from an order of the circuit court, which denied the petition of Peter C. Deming for a writ of habeas corpus upon this state of facts: Deming was, on March 29, 1900, a captain in the subsistence department in the volunteer army of the United States. On that day William R. Shaffer, a major general of the volunteer army, and a retired brigadier general of the regular army of the United States, ordered that a general court-martial, composed entirely of officers of the regular army, should convene 'for the trial of Captain Peter C. Deming, assistant commissary of subsistence, U.S. volunteers. ' The court thus called sat, tried the appellant upon some charges, 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 is confined in the penitentiary at Leavenworth, Kan., under a mittimus based on this subject. He avers that the sentence upon him is void, and that he is illegally deprived of his liberty, because Gen. Shafter, a retired officer of the regular army, had no authority to convene the court, and because 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 him, an officer of the volunteer army, under the seventy-seventh article of war (Rev. St. Sec. 1342), which reads: 'Officers of the regular army shall not be competent to sit on courts-martial to try the officers and soldiers of other forces except as provided in article seventy-eight.'

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

The petitioner, Deming, was an officer of the volunteer force raised under the act of congress of March 2, 1899 (30 Stat. 977, c. 352). He was tried and convicted by a court-martial composed of officers of the regular army. 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. The crucial question in this case is, was this volunteer army the same army as the regular army, or was it a different and supplemental army? Was this volunteer force raised under the act of 1899 the same force as the regular army, or was it one of the 'other forces' of the United States within the intent and meaning of article 77? On a cursory reading of the article the question does not seem to be difficult, nor the true answer to it doubtful. And, were it not for the earnest and forceful presentation of their view by the learned counsel for the government, and for the fact that the general commanding the army under the advice of the judge advocate general has held that under the act of April 22, 1898 (30 Stat. 361, c. 187), and of March 2, 1899 (30 Stat. 977, c. 352), the volunteer force is the same force as the regular army, and that the officers of the latter may lawfully try the officers of the former (Circular 21, H.Q.A., June 30, 1898), that contention might not seem forceful. 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 acts are plain, and their meaning is clear, these must prevail. Hartman v. Warren, 76 F. 157, 162, 22 C.C.A. 30, 36, 40 U.S.App. 245, 254; Webster v. Luther, 163 U.S. 331, 342, 16 Sup.Ct. 963, 41 L.Ed. 179; U.S. v. Tanner, 147 U.S. 661, 663, 13 Sup.Ct. 436, 37 L.Ed. 321; Merritt v. Cameron, 137 U.S. 542, 11 Sup.Ct. 174, 34 L.Ed. 772; U.S. v. Graham, 110 U.S. 219, 3 Sup.Ct. 582, 28 L.Ed. 126; Swift, C. & B. Mfg. Co. v. U.S., 105 U.S. 691, 26 L.Ed. 1108.

Guided by these familiar and indisputable rules of law, the question whether the volunteer force raised under the act of 1899 was the same force as the regular army, or one of the 'other forces' of the United States, within the meaning of article 77, will be considered. That article reads:

'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.'

The exception in article 78 relates to the officers of the marine corps, and does not withdraw the appellant or the officers who tried him from the prohibition of the general rule announced in article 77. The provisions of the act of March 2, 1899, pertinent to the issue under consideration are these:

'That from and after the date of the approval of this act the army of the United States shall consist of * * * ten regiments of cavalry, seven regiments of artillery, twenty-five regiments of infantry,' and appropriate officers, departments and corps. 30 Stat. 977, c. 352, Sec. 1.

'That to meet the present exigencies of the military service, the president is hereby authorized to maintain the regular army at a strength of not exceeding sixty-five thousand enlisted men to be distributed amongst the various branches of the service, including the signal corps, according to the needs of each, and raise a force of not more than thirty-five thousand volunteers to be recruited as he may determine from the country at large, or from the localities where their services are needed, without restriction as to citizenship or educational qualifications, and to organize the same into no more than twenty-seven regiments organized as are infantry regiments of war strength in the regular army and three regiments to be composed of men of special qualifications in horsemanship and marksmanship to be organized as cavalry for service mounted or dismounted, * * * provided, further, that such increased regular and volunteer force shall continue in service only during the necessity therefor and not later than July 1st, 1901. All enlistments for the volunteer force herein authorized shall be for the term of two years and four months unless sooner discharged.' 30 Stat. 977, Sec. 12.

That...