Ex parte Mason

256 F. 384, 1882 U.S. App. LEXIS 2867

• Court: U.S. Circuit Court for the District of Northern New York
• Decided: October 2, 1882
• Status: Published

Opinion

WALLACE, Circuit Judge.

The petition for the writ proceeds upon two grounds: First, that the general court-martial was without jurisdiction to try- the petitioner, Mason, for the offense of which he was convicted, such offense being a breach of the civil peace, and not a military offense, and the sentence of the court being therefore void; and, second, that the Judge Advocate General has reversed that sentence, thereby nullifying the conviction of the court-martial.

[1] As to the first branch of the application we are concluded by the decision of the Supreme Court of the United States, which, by the unanimous opinion of the court, adjudged Mason’s offense to be one against military discipline, and properly cognizable by court-martial.

That decision is of controlling authority, and disposes of the first ground of the application adversely to the petitioner.

[2, 3] The second ground of the application is not tenable, because the alleged reversal by the Judge Advocate General of the findings of the court-martial is not a reversal at all, and does not purport to be. It is merely an advisory report to the Secretary of War, giving the opinion of the Judge Advocate General upon the merits of the trial and sentence. We might rest our decision here, but, as it has been strenuously contended by the counsel for the petitioner that Congress has conferred authority upon the Judge Advocate General to reverse the proceedings of courts-martial, it is proper that we should express our dissent from such a conclusion. It is urged that, because the statute makes it the duty of that officer to “receive, revise and cause to be recorded the proceedings of all courts-martial,” the power to reverse is to be implied. It is not reasonable to suppose that the exercise of such an important power would be conferred in vague and doubtful terms, or that it lurks behind the word “revise.” Applying the rule “noscitur a sociis,” the word “revise” is to be read in connection with the words that precede and follow it, and, thus read, the duty it imposes is analogous to the duty of receiving and recording the proceedings. Had it been intended by the statute to introduce such a marked innovation into the pre-existing functions of that officer, and to convert a staff officer or the head of a bureau into a judicial officer having the ultimate decision in all cases of military offenses the power to affirm, reverse, or modify the proceedings of courts-martial would have been lodged in plain and explicit language. The language employed is more appropriate to indicate the discharge of clerical duties.

It is not intended to intimate that it is not the province and the duty of the Judge Advocate General to revise the proceedings of courts-martial so far as may be necessary to rectify errors of form, and to point out errors of substance which, in his judgment, should be corrected by the proper authorities, nor is it doubted that, as to all such topics as are within the purview of his official scrutiny, his opinion is entitled to that respectful consideration which is due to the dignity and importance of the position which he holds.

The rule is discharged, and the application for a writ of habeas corpus is denied.