Billings v. Truesdell

• Decision Date: 30 April 1943
• Docket Number: No. 2661.,2661.
• Citation: 135 F.2d 505
• Parties: BILLINGS v. TRUESDELL, Major General, U. S. Army.
• Court: U.S. Court of Appeals — Tenth Circuit

135 F.2d 505 (1943)

BILLINGS v. TRUESDELL, Major General, U. S. Army.

No. 2661.

Circuit Court of Appeals, Tenth Circuit.

April 30, 1943.

Lee Bond, of Leavenworth, Kan., for appellant.

Lester R. Luther, Asst. U. S. Atty., of Topeka, Kan., and Allan R. Browne, Major, JAGD, Staff Judge Advocate, of Kansas City, Mo. (George H. West, U. S. Atty., and Eugene W. Davis, Asst. U. S. Atty., both of Topeka, Kan., and Bert E. Church, Captain, JAGD, Litigation Officer, Seventh Service Command and Frank E. Shaw, Colonel, J A G D, both of Omaha, Neb., on the brief), for appellee.

Before PHILLIPS, MURRAH, and WILLIAMS, Circuit Judges.

PHILLIPS, Circuit Judge, delivered the opinion of the court.

Arthur Goodwyn Billings, hereinafter called the petitioner, filed his application for a writ of habeas corpus directed to Major General Karl Truesdell, Commanding Officer, Reception Center, United States Army, Fort Leavenworth, Kansas, in whose custody petitioner was detained. The writ was issued and Major General Truesdell duly filed his return thereto. After a hearing, the trial court entered an order discharging the writ and remanding petitioner to the custody of Major General Truesdell. The petitioner has appealed.

The petitioner is thirty-one years of age. He graduated with honors at the University of Kansas in 1933. Thereafter, he attended the University of Paris for two years and served three years in the American Diplomatic Service at Moscow. In 1938 he spent a short vacation in China and Japan and in the fall of that year entered Harvard University. After three years of studies at Harvard, he received his Master's Degree and passed the general examination for a Doctor's Degree but did not write the thesis required for the latter degree. He became a professor in the University of Texas in the fall of 1941 where he remained until called for induction into the Army.

Petitioner registered under the Selective Training and Service Act of 1940,¹ 54 Stat. 885, 50 U.S.C.A.Appendix § 301 et seq., in the first registration with local board No. 1, for Ottawa County, Minneapolis, Kansas. He was classified in Class 1-B because of a defective eye. Later, he was reclassified and placed in Class 1-A. He sought reclassification on the ground that he was a conscientious objector. The local board denied his claim for reclassification. From that ruling he appealed. The decision of the local board was sustained by the Board of Appeals. Petitioner determined that he would not serve in the armed forces of the United States. He believed, however, that upon his physical examination, he would be rejected because of defective vision in one eye. He determined to comply with Selective Service requirements up to the point where the civil jurisdiction ceased and military jurisdiction commenced, or just short of submitting himself to the latter jurisdiction. He made inquiries of Selective Service officials in Texas and of others to ascertain up to what point he could comply with the requirements of the Act and the regulations and orders made pursuant thereto, including the order of his local board to report for induction, and stop short of actual induction into the Army. He was ordered by the local board to report to Minneapolis, Kansas, for induction into the armed forces. With the consent of the local board, he joined, at Victory Junction, Kansas, the group selected for induction, and was transported to the induction station at Fort Leavenworth, Kansas. He went to the barracks, was furnished his meals and lodging, and submitted to a physical and mental examination. He was advised that he had passed and would be accepted. He was then taken to a room at the induction station and in the presence of several officers was asked to stand and take the oath, which he refused to do. The oath of induction was then read to him and he was asked if he subscribed to that oath. He stated he did not. He was then informed that he was in the Army. He was then ordered to submit to having his fingerprints taken. He refused so to do. He endeavored to surrender to the civil authorities. Military charges were then preferred against him for refusing to be fingerprinted and he was confined in the guardhouse.

He predicated his petition for the writ of habeas corpus on the alleged ground that he had not been inducted into the Army and that, therefore, the military authorities had no jurisdiction over him.

Section 3 of the Act, as amended, 50 U. S.C.A.Appendix § 303, in part, provides:

"(a) Except as otherwise provided in this Act, every male citizen of the United States, and every other male person residing in the United States who is between the ages of twenty and forty-five at the time fixed for his registration, * * * shall be liable for training and service in the land or naval forces of the United States. * * *"

Section 10 of the Act, 50 U.S.C.A.Appendix § 310, in part, provides:

"(a) The President is authorized —

"(1) to prescribe the necessary rules and regulations to carry out the provisions of this Act; * * *."

Section 11 of the Act, 50 U.S.C.A.Appendix § 311, makes it a criminal offense for any...