United States v. Henderson

Decision Date29 May 1950
Docket NumberNo. 9996-9999.,9996-9999.
Citation180 F.2d 711
PartiesUNITED STATES v. HENDERSON. UNITED STATES v. WILDMAN. UNITED STATES v. SHUFFLEBARGER. UNITED STATES v. FRANTZ.
CourtU.S. Court of Appeals — Seventh Circuit

Harrop A. Freeman, Ithaca, N. Y., E. Earl Robbins, Centerville, Ind., for appellant.

B. Howard Caughran, United States Attorney, Indianapolis, Ind., Elba L. Branigin, Jr., Assistant United States Attorney, Maurice W. Graston, Assistant United States Attorney, Indianapolis, Ind., for appellee.

Before KERNER, FINNEGAN and SWAIM, Circuit Judges.

Writ of Certiorari Denied May 29, 1950. See 70 S.Ct. 997, 998.

SWAIM, Circuit Judge.

Each of the above named defendants was charged, either by indictment or information, with having unlawfully, knowingly, and wilfully failed and refused to present himself for, and submit to registration before a duly authorized registration official or local selective service board, all as required of him by the Selective Service Act of 1948, 50 U.S.C.A.Appendix, §§ 451-470, a Proclamation of the President of the United States, issued and promulgated thereunder July 20, 1948, No. 2799, 50 U.S.C.A.Appendix, § 453 note, and Selective Service Regulations duly issued pursuant to said Act and then in full force and effect, all as the defendant then and there well knew. Three of the defendants were tried by a jury and one by the Court. All were found guilty as charged, sentenced to imprisonment for ninety days and fined $100.00. Since all four cases present the same questions, defendants' attorneys have stipulated with the United States Attorney that the four cases should be consolidated for the purposes of this appeal.

In appellant's brief it was alleged that the trial court had not conducted the trial in such a manner as to result in a fair trial to the defendants. In the argument before this Court, however, counsel for the defendants stated that they were not urging this as a ground for reversal, and we shall, therefore, not further consider it.

The defendants contend that because of their religious beliefs, their rights under the First Amendment would be violated if they were required to comply with the Selective Service law by registering thereunder. Three of the defendants are members of the Society of Friends (Quaker) and affiliated organizations. They profess to believe, and their sincerity is not questioned, that war is never justified and that since registration is in aid of war it is likewise wrong. The fourth defendant professed the same belief, although not a member of any church.

Each of the defendants admitted that he was familiar with and understood the requirements of the Act as to registration, but insisted he would not register because of his religious beliefs. At the time for registration under the Act, each of the defendants, instead of appearing in person, wrote a letter to the local board explaining that he was opposed to war and conscription and did not intend to register; and each indicated that he was willing to accept the consequences of disobedience. Thereafter, they were interrogated by a special agent of the Federal Bureau of Investigation. In these interviews each stated that he could have registered, but that he did not register at any time or place under the Selective Service Act of 1948; and each again stated that he did not intend to register due to his religious beliefs.

The letters written by the defendants illustrate their attitudes.

Defendant Wildman, in his letter to his local board said, "I feel that conscription for military service is wrong and I must protest it by refusing to register. I do this only after a great deal of thought, for I realize that going against the law may have serious implications."

The defendant Shufflebarger said in a letter to his local board that he felt that he could not comply with the Selective Service Act of 1948 (requiring registration). Although he did submit to registration under the Selective Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., he explained that, "I now feel that I cannot accept conscription even by the token of registration for selective service."

Defendant Henderson in a letter to the local board said, "I cannot register for military draft. Not only am I unwilling to take military training myself, but I am also unwilling for my country to have a law requiring military training for its youth. I must protest against that law. Of course, I believe in government. If I must disobey a law, I must be willing to accept the consequences of disobedience, as set forth in the law."

The defendant Frantz wrote a letter to his local draft board inclosing a copy of his letter to the President of the United States and saying, "I regret there is no place in the present Act in which I can give my cooperation." In his letter to the President, Frantz explained his membership in the Society of Friends; stated that he did not believe in war, nor preparation for war; stated that registration is a recognition of the government's right to conscript for war and is wrong, because war is wrong; and said that he could not be consistent with his belief and acknowledge the right of the government to conscript, "an admission I would be making if I should register."

Section 3 of the 1948 Selective Service Act, 50 U.S.C.A.Appendix, § 453, provides that: "* * * it shall be the duty of every male citizen of the United States * * * who, on the day or days fixed * * * is between the ages of eighteen and twenty-six, to present himself for and submit to registration * * *."

Section 12 of the Act, 50 U.S.C.A.Appendix, § 462, defines offenses under the Act and provides penalties therefor. It provides that: "* * * any person who shall knowingly make * * * any false statement or certificate regarding or bearing upon a classification * * * or who otherwise evades or refuses registration * * * or who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under (the Act) * * * shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment * * *."

The defendants contend that the 1948 Selective Service Act is unconstitutional. They impliedly admit, as they must, that it is within the power of Congress to enact a selective service or draft law in time of war, Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856, but contend that Congress may not exercise such power in time of peace. Both reason and the decided cases are against this contention of the defendants.

Congress was expressly given the power, "To raise and support Armies * * *". U.S.Const., Art. I, Sec. 8, Cl. 12. This is an unqualified power given to Congress in order that it may protect the very existence of government. There is neither express nor implied limitation in the Constitution to this power. If, as contended by defendants, Congress could only exercise this power to conscript and train men when the country is at war, such action might then be unavailing, because it would come too late. To successfully fight modern war an army must be equipped with modern implements of war and be thoroughly trained in their use. This cannot be accomplished in a short time. One of the stated purposes of our Constitution was to "provide for the common Defense". It is fundamental that a nation must have the power to defend itself against enemies, both actual and threatened. Peace-time selective service acts have been held constitutional in United States v. Lambert, 3 Cir., 123 F.2d 395; United States v. Lamothe, 2 Cir., 152 F.2d 340; United States v. Rappeport, D.C., 36 F.Supp. 915, affirmed in United States v. Herling, 2 Cir., 120 F.2d 236.

The principal contention of the defendants is that the Act is unconstitutional as applied to them in that their religious belief, being contrary to war and even contrary to registering under a selective service act, which is, or may be, in aid of war, is protected by the First Amendment to the Constitution to the extent that they were not required by the Selective Service Act of 1948 to present themselves for, and submit to registration. Consequently, they contend that their right to exercise religious freedom cannot be abrogated by requiring their obedience to the Act. It is our opinion that the defendants have neither reason, nor authority, to sustain this contention.

The Constitution, Art. I, Sec. 8, after giving Congress various powers, including the power to raise armies, expressly gives Congress the power: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers * * *." U.S.Const., Art. I, Sec. 8, Cl. 18. To raise an army Congress must necessarily have the power to take an inventory of and to classify the available manpower of the nation. This is all that registration under the Act actually amounted to, so far as these defendants were concerned. All of the defendants admitted that they were familiar with the provision of the Act by which the local boards were empowered to defer them on account of their religious beliefs. One of them was past the age at which he would have been required to serve under the Act. Their only excuse for noncompliance with the registration provisions of the Act was that they were compelled by their religious belief to refuse to comply. If the law were to be considered applicable only to those men who have no scruples against registering, the inventory of manpower so taken would be of little value. However, the defendants insist that "A person whose religion holds that all war and preparation for war, including registration for a selective service law, are evil, cannot be found guilty of a crime for carrying out his religion by refusing...

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