Franke v. Murray

Citation248 F. 865
Decision Date14 February 1918
Docket Number5053.
PartiesFRANKE v. MURRAY.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

The appellant, a citizen of the United States, between the age of 21 and 31, filed a petition for a writ of habeas corpus alleging that he is unlawfully imprisoned and deprived of his liberty by the respondent, commandant of Jefferson Barracks in the county of St. Louis, state of Missouri. He stated in his petition that he was duly enrolled and registered under the act of Congress of May 18, 1917, known as the 'Selective Draft Act'; that subsequently he was informed by notice from the local board that he had been drafted for service in the military establishment of the United States under said act of Congress; that in response to said notice he attended upon said board, and claimed exemption under the terms of said act, on the ground that he was a member of a well-recognized religious sect and organization, whose principles and creed forbid its members participating in war in any form, and that his religious convictions were against war or participation therein, which claim was by the board rejected; that, having been found physically qualified for service, he was duly notified to report for transportation to a military encampment of the United States, for the purpose of being assigned to duty as a member of said military establishment of the United States that he refused to appear in response to the notice given him, whereupon he was arrested and taken into custody by direction of the board, and turned over to the respondent as a deserter from the army of the United States, to be tried by a court-martial; that his detention is without due process of law and in violation of the Constitution.

Upon presentation of the petition, a writ of habeas corpus was granted by the District Court. The respondent produced the appellant and made a return to the writ, denying that the petitioner was a member of any religious sect or organization whose creed and principles forbade its members to participate in war in any form. The response also set up all the steps which were taken by the board, and which were in strict conformity with the act of Congress and the mobilization regulations of the President of the United States. To this return the petitioner filed what may be termed a reply, denying that he deserted the military service of the United States, and that he was a deserter, as he never was in the military service of the United States, never having taken the oath as a soldier. The hearing was had on the pleadings, no evidence being introduced by either party, whereupon the writ was discharged, and the appellant remanded to the custody of the respondent. From this judgment this appeal is being prosecuted.

Chester H. Krum, of St. Louis, Mo. (Kurt von Reppert, of St. Louis, Mo., on the brief), for appellant.

Lieut. Col. Nathan William MacChesney, Judge Advocate, N.A., U.S. Army, of Chicago, Ill., and Walter N. Davis, Sp. Asst. U.S. Atty., of St. Louis, Mo. (Arthur L. Oliver, U.S. Atty., and Joseph Wheless, both of St. Louis, Mo., and William J. Martin, of Chicago, Ill., on the brief), for appellee.

Before HOOK and SMITH, Circuit Judges, and TRIEBER, District Judge.

TRIEBER District Judge (after stating the facts as above).

The grounds upon which it is sought to reverse the judgment of the court below are: (1) That in order to be a deserter one must be in the actual military service, and that until he has been sworn in as a soldier he has not lost his status as a civilian. (2) If he has committed any offense, or violated any of the laws of the United States, he subjected himself to civil prosecution only, under the provisions of section 6 of the Conscription Act. (3) That Congress had no power to authorize the President to make any rules and regulations which should have the effect of law, that being a delegation of legislation which is not permissible under the Constitution.

As to the last claim, it is sufficient to say that it was adversely disposed of by the Supreme Court in Arver v. United States, 245 U.S. 366, 38 Sup.Ct. 159, 62 L.Ed. . . ., opinion filed January 7, 1918.

To sustain the first proposition, counsel rely on Houston v. Moore, 5 Wheat. 1, 5 L.Ed. 19, and In re Grimley, 137 U.S. 147, 11 Sup.Ct. 54, 34 L.Ed. 636. Neither of these cases is applicable to the issues in this case, or the acts of Congress under which appellant is held. In Houston v. Moore the question before the court was, whether a statute of the state of Pennsylvania, which provided that a militiaman of that state was subject to trial by a court-martial of the state for failing to respond when called, was constitutional. The contention was that Congress alone had that power, and a statute of a state is therefore unconstitutional. This was denied by the highest court of the state of Pennsylvania, and upon writ of error to the Supreme Court of the United States that judgment was affirmed; the court holding that, in the absence of action by Congress, the state possessed that power.

In Re Grimley the only question involved was that of a voluntary enlistment, hence does not apply to a Selective Draft Act, such as is the act of Congress of May 18, 1917. McCall's Case, Fed. Cas. No. 8,669. Section 2 of the Selective Draft Act provides:

'All persons drafted into the service of the United States * * * shall, from the date of said draft or acceptance, be subject to the laws and regulations governing the regular army.'

This, of course, includes the Articles of War, as members of the regular army are subject to trial by court-martial. Article 2 of the Articles of War (section 1342, Rev. St., as amended by Act Aug. 29, 1916, c. 418, 39 Stat. 650, U.S. Comp. St. 1916, Sec. 2308a) provides:

Persons Subject to Military Law. The following persons are subject to these articles and shall be understood as included in the term 'any person subject to military law,' or 'persons...

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  • United States v. Cain, 418.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 15, 1944
    ...245 F. 871; Ex parte Graber, D.C.N.D.Ala., 247 F. 882; United States ex rel. Pascher v. Kinkead, 3 Cir., 250 F. 692; Franke v. Murray, 8 Cir., 248 F. 865, L.R.A. 1918E, 1015; Brown v. Spelman, D.C. E.D.N.Y., 254 F. 215; Napore v. Rowe, 9 Cir., 256 F. 832; cf. United States v. Grieme, 3 Cir.......
  • United States v. COMMANDING OFFICER, ETC., Civil Action No. 27.
    • United States
    • U.S. District Court — District of Nebraska
    • February 15, 1945
    ...Draft Act of 1917, 50 U.S.C.A.Appendix, § 201 et seq., judicial review of classifications was not allowed. Franke v. Murray, 8 Cir., 248 F. 865, 868, L.R.A.1918E, 1015. Not only is no general right of judicial review, by appeal or certiorari provided, but, for the strict purpose of review o......
  • United States v. Freidericks
    • United States
    • U.S. District Court — District of New Jersey
    • May 17, 1921
    ......' Frost v. Wenie, 157 U.S. 46, 15 Sup.Ct. 532, 39 L.Ed. 614;. United States v. Lee Yen Tai, 185 U.S. 213, 22. Sup.Ct. 629, 46 L.Ed. 878; Franke v. Murray (C.C.A. 8) 248 F. 865, 160 C.C.A. 623, L.R.A. 1918E, 1015, Ann. Cas. 1918D, 98; United States v. Sacein Rouhana Farhat. (D.C.S.D. Ohio, ......
  • Ex parte Catanzaro
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 23, 1943
    ...and had afforded him a fair hearing. See United States v. Kinkead, D.C., 248 F. 141, affirmed by this court, 250 F. 692; Franke v. Murray, 8 Cir., 248 F. 865, L.R.A.1918E, 1015; Shimola v. Local Board No. 42, D.C., 40 F.Supp. 808. It has also been held that a writ of habeas corpus is availa......
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