Atkinson vs. Stewart, et al.

The Philippine Scouts are part of the Regular Army of the United States, and officers of the Regular Army are competent to sit on courts-martial for their trial. The prohibition in Article 77 of the Articles of War against Regular Army officers trying officers or soldiers of "other forces" applies only to temporary or volunteer forces, not to forces that are part of the permanent military establishment maintained both in peace and war.

The petitioner was a second lieutenant in the Philippine Scouts, a military organization created pursuant to Section 36 of the Act of February 2, 1901, which authorized the President to enlist natives of the Philippine Islands for service in the Army, to be organized as scouts. The Articles of War, specifically Articles 77 and 78, governed the composition of courts-martial, with Article 77 prohibiting Regular Army officers from sitting on courts-martial to try officers or soldiers of "other forces." The statutory framework distinguishing the Regular Army from volunteer forces originated in the Act of April 22, 1898, which defined the Regular Army as "the permanent military establishment which is maintained both in peace and war according to law."

The petitioner, Theodore E. Atkinson, was a second lieutenant of the Philippine Scouts who was tried by a court-martial convened at Cuartel de España, Manila, composed entirely of officers of the Regular Army of the United States. He was sentenced to be dismissed from the service of the United States and to be confined at hard labor for a period of four years. The sentence was approved by the convening authority, and the record of trial was forwarded for the action of the President under the One Hundred and Sixth Article of War. On October 14, 1911, President William H. Taft confirmed the sentence but mitigated the confinement at hard labor from four years to two years. By order of the Secretary of War, dated October 25, 1911, Atkinson ceased to be an officer of the Army, and Bilibid Prison in Manila was designated as the place of his confinement.

The petitioner alleged that he was unlawfully detained because the 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. He further alleged that he was tried without due process of law and in violation of Articles 77 and 78 of the Articles of War, rendering the sentence null and void. The Acting Director of Prisons admitted the detention but justified it under the order from the War Department.

The legal question raised was whether officers and enlisted men of the Philippine Scouts are part of the permanent military establishment of the United States and, as such, triable before courts-martial composed of officers of the Regular Army. The Court examined the legislative history of the military establishment, including the Act of April 22, 1898, which provided for the Regular Army and the Volunteer Army as two branches in time of war, and defined the Regular Army as "the permanent military establishment which is maintained both in peace and war according to law." The Act of March 2, 1899, increased the efficiency of the Army but was temporary in character, with volunteer forces to be mustered out by July 1, 1901. The Act of February 2, 1901, was entitled "An Act to increase the efficiency of the permanent military establishment of the United States" and included Indian Scouts as part of the permanent establishment, with Section 36 authorizing the enlistment of natives of the Philippine Islands for service in the Army as scouts.

The Court noted that the petitioner relied on the decision in McClaughry vs. Deming (186 U.S., 49), which held that officers of the Regular Army were incompetent to try officers of the Volunteer Army under Article 77. However, the Court distinguished that case, noting that the Volunteer Army was a temporary force organized under the Acts of 1898 and 1899, whereas the Philippine Scouts were organized under the Act of February 2, 1901, which related solely to the permanent military establishment. The Court also observed that for more than ten years, the executive branch had consistently interpreted the law to allow Regular Army officers to try Philippine Scouts, and that the reason underlying Article 77—the difference in military training and discipline between Regular Army officers and volunteer officers—did not apply to the Philippine Scouts, who were officered by Regular Army officers and governed by the same Articles of War and regulations.

• Illegal Composition of Court-Martial: Petitioner argued that the court-martial was illegally constituted because it was composed entirely of officers of the Regular Army, who were incompetent and without jurisdiction to try him as a second lieutenant of the Philippine Scouts under Article 77 of the Articles of War.
• Violation of Due Process and Articles of War: Petitioner alleged that he was tried without due process of law and in violation of the Seventy-seventh and Seventy-eighth Articles of War, rendering the sentence absolutely null and void.
• Classification as "Other Forces": Petitioner contended, relying on McClaughry vs. Deming, that the Philippine Scouts constitute "other forces" within the meaning of Article 77 and are not part of the Regular Army, thus prohibiting Regular Army officers from sitting on his court-martial.

• Validity of Detention: The Acting Director of Prisons admitted the detention but justified it by virtue of the order from the War Department of Washington, D.C., dated October 25, 1911, which implemented the President's confirmation of the sentence.
• Executive Construction of the Law: The respondents invoked the interpretation given by the President and the Secretary of War to the Acts of Congress relating to the Army, noting that for more than ten years the executive branch had continued to try Philippine Scouts by courts composed of Regular Army officers, as reflected in the cablegram exchange between the commanding general in Manila and the Acting Secretary of War in 1902.

• Jurisdiction of the Court-Martial: Whether the Philippine Scouts are part of the permanent military establishment of the United States and, as such, triable before courts-martial composed of officers of the Regular Army, notwithstanding Article 77 of the Articles of War.
• Applicability of Article 77: Whether the Philippine Scouts constitute "other forces" within the meaning of the Seventy-seventh Article of War, thereby prohibiting Regular Army officers from sitting on courts-martial for their trial.

• Jurisdiction of the Court-Martial: Yes. The Philippine Scouts are part of the Regular Army of the United States, being part of the permanent military establishment maintained both in peace and war, and are therefore properly triable before courts-martial composed of officers of the Regular Army.
• Applicability of Article 77: No. The Philippine Scouts are not "other forces" within the meaning of Article 77 of the Articles of War, as the distinction between the Regular Army and other forces applies only to temporary or volunteer forces, not to permanent forces maintained in time of peace.

• Jurisdiction of the Court-Martial: The Court traced the legislative history of the military establishment, noting that the Act of April 22, 1898, defined the Regular Army as "the permanent military establishment which is maintained both in peace and war according to law." The Act of February 2, 1901, was entitled "An Act to increase the efficiency of the permanent military establishment of the United States" and included Indian Scouts as part of that establishment, with Section 36 authorizing the enlistment of Philippine natives as scouts. Unlike the Volunteer Army created under the Acts of 1898 and 1899, which was temporary and to be mustered out by July 1, 1901, the Act of February 2, 1901, contained no such limitation for the Philippine Scouts. The Court concluded that the Philippine Scouts are enlisted in the same manner and for the same term as other soldiers of the United States Army and are maintained both in peace and war as part of the permanent military establishment.

• Applicability of Article 77: The Court distinguished McClaughry vs. Deming, which concerned officers of the Volunteer Army organized under the Acts of 1898 and 1899. The Supreme Court of the United States in that case found that the distinction between the Regular Army and the Volunteer Army was maintained in those acts. However, the Act of February 2, 1901, was passed for a different purpose—to increase the efficiency of the permanent military establishment. The Court further reasoned that the underlying reason for Article 77—the difference in military training, discipline, and conception of military service between Regular Army officers and volunteer officers—does not exist with respect to the Philippine Scouts. The Scouts were officered by Regular Army officers, governed by the same Articles of War and regulations, used the same drill regulations, and were paid from a common fund. The Court also noted that the executive branch had consistently interpreted the law for over ten years to allow Regular Army officers to try Philippine Scouts, and that this long-standing construction should not be disturbed where the question is doubtful.

• Regular Army as Permanent Military Establishment — The Regular Army is the permanent military establishment of the United States, maintained both in peace and war according to law. The Court applied this definition, derived from the Act of April 22, 1898, to determine that the Philippine Scouts, organized under the Act of February 2, 1901, which relates solely to the permanent military establishment, are part of the Regular Army and not a separate or temporary force.

• Distinction Between Regular Army and Volunteer Forces — The distinction drawn in Article 77 of the Articles of War between officers of the Regular Army and officers of "other forces" applies to temporary or volunteer forces, such as the Volunteer Army organized under the Acts of 1898 and 1899, which were to be mustered out upon the conclusion of hostilities. The Court held that this distinction does not exist between the Regular Army and permanent forces maintained in time of peace, such as the Philippine Scouts.

• Executive Construction of Statutes — The opinions of executive officers entrusted with the execution of a statute, while not controlling or conclusive upon the courts, should receive careful consideration and, in doubtful cases, should be permitted to lead the way to judicial decisions. The Court applied this principle in affirming the long-standing executive interpretation that Philippine Scouts were triable by courts composed of Regular Army officers.

• Reason of the Rule — Where the language of a law is ambiguous, the underlying principle of the law, the motives of the legislature in enacting it, and the effect of its practical operation are properly considered. The Court applied this canon of construction to find that the reason underlying Article 77—the difference in military training and discipline between Regular Army officers and volunteer officers—does not apply to the Philippine Scouts, who were trained under the same military code as the Regular Army.

• "The Regular Army is the permanent military establishment which is maintained both in peace and war according to law." — This definition, drawn from the Act of April 22, 1898, is the foundational statutory basis for the Court's conclusion that the Philippine Scouts, organized under the Act of February 2, 1901, are part of the Regular Army.

• "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." — This passage articulates the Court's central holding that Article 77's prohibition does not apply to the Philippine Scouts because they are part of the permanent military establishment.

• "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." — This excerpt states the Court's conclusion that the policy rationale for Article 77—the difference in military training and discipline between Regular Army and volunteer officers—does not apply to the Philippine Scouts, who share the same military culture and training as the Regular Army.

• McClaughry vs. Deming, 186 U.S. 49 — Distinguished. The Supreme Court of the United States held that officers of the Regular Army were incompetent to try officers of the Volunteer Army under Article 77. The Court in the present case distinguished this precedent on the ground that the Volunteer Army was a temporary force organized under the Acts of 1898 and 1899, whereas the Philippine Scouts were organized under the Act of February 2, 1901, which relates solely to the permanent military establishment.

• Deming vs. McClaughry, 113 Fed. 639 — Cited with approval for its exposition of the reasons underlying Article 77, particularly the differences in military training, discipline, and conception of military service between Regular Army officers and volunteer officers. The Court found these reasons inapplicable to the Philippine Scouts.

• Article 77, Articles of War — Provides that 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 Court held that this prohibition does not apply to the Philippine Scouts because they are part of the Regular Army, not "other forces."

• Article 78, Articles of War — Provides for the association of Marine Corps officers with Regular Army officers on courts-martial for the trial of offenders belonging to the Regular Army or to forces of the Marine Corps so detached. The Court noted this provision but found it inapplicable to the present case.

• Section 2, Act of April 22, 1898 (30 Stat. L., 361) — Provides that in time of war the Army shall consist of two branches designated as the Regular Army and the Volunteer Army of the United States. The Court used this provision to establish the statutory distinction between the Regular Army and temporary volunteer forces.

• Section 3, Act of April 22, 1898 (30 Stat. L., 361) — Defines the Regular Army as "the permanent military establishment which is maintained both in peace and war according to law." This definition is central to the Court's reasoning that the Philippine Scouts, as part of the permanent establishment, are part of the Regular Army.

• Section 36, Act of February 2, 1901 (31 Stat. L., 748) — Authorizes the President to enlist natives of the Philippine Islands for service in the Army, to be organized as scouts. The Court held that this provision, part of an act relating solely to the permanent military establishment, makes the Philippine Scouts part of the Regular Army.

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