United States v. Bullard

• Decision Date: 07 May 1923
• Docket Number: 203.
• Citation: 290 F. 704
• Parties: UNITED STATES ex rel. FELD v. BULLARD.
• Court: U.S. Court of Appeals — Second Circuit

290 F. 704

UNITED STATES ex rel. FELD v. BULLARD.

No. 203.

United States Court of Appeals, Second Circuit.

May 7, 1923

[Copyrighted Material Omitted]

William Hayward, U.S. Atty., of New York City (James C. Thomas, Jr. Asst. U.S. atty., of New York City, and Thomas L.Heffernan of Providence, R.I., of counsel), for appellant.

Weinberger & Weinberger, of Passaic, N.J. (Harry H. Weinberger, of Passaic, N.J., of counsel), for appellee.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

MANTON Circuit Judge.

Appellant appeals from an order sustaining a writ of habeas corpus. The appellee was held in the custody of the commanding officer at Ft. Jay, New York Harbor, having been arrested as a deserter from United States military service. He is said to have been inducted into that service pursuant to the provisions of the Selective Service Law (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 2044a et seq.). The question here presented is whether or not the appellee was lawfully inducted into that service, and therefore whether or not the appellant had jurisdiction to hold him for trial as a deserter.

On June 5, 1917, the appellee was 23 years of age, having been born in the United States. He registered under the Selective Service Law, giving his address as No. 99 Jackson street, Passaic, N.J. Thereafter his registration card was assigned to the local board for division No. 2, Passaic, N.J., and he was given order No. 281, serial No. 1006. On June 9, 1917, he wrote the Provost Marshal General at Washington, D.C., as follows:

'I desire to leave the United States for Brazil. My object is to transact business in hides while there. I understand my obligation under the Draft Act. My post office address will be Rio de Janeiro, Brazil, in case I go. Kindly let me know disposition in my case.'

On June 11, 1917, the Provost Marshal General wrote a letter to the Bureau of Citizenship, State Department, which recited that the appellee had satisfied the War Department of his registration under the Act of May 18, 1917, and that it had no objection to the issuance of a passport to him, by means of which letter he procured a passport to leave the United States in July, 1917, to go to Brazil. In the application for a passport he stated that he was an attorney and a hide broker, and he was about to go abroad temporarily and intended to return to the United States within six months, and he further stated that he could be communicated with at 99 Jackson street, Passaic, N.J. He sailed in July, 1917, and remained until July, 1919, and when hostilities ceased he returned to the United States. Upon the expiration of six months provided in the passport, he submitted to the Consul General at Buenos Aires the original passport, upon which the Consul General endorsed an extension and renewal of an additional period of six months, and he continued obtaining extensions of six months each until his new passport was issued to return to this country.

On January 7, 1918, the local board, pursuant to section 92 of the existing Selective Service Regulations, mailed to the appellee at 99 Jackson street, Passaic, N.J., a questionnaire, with notice, pursuant to the law, to fill it out, swear to it, and return it to the local board within seven days. On January 11, 1918, it was partly filled out and returned to the local board by the appellee's father, the petitioner in this proceeding. It stated that the appellee had a passport to go to South America. It contained a waiver of all claims for exemption or deferred classification. The local board reported to the adjutant general of the state of New Jersey the fact that the appellee failed to return his questionnaire. On April 5, 1918, the adjutant general, pursuant to section 133 of the Selective Service Regulations, mailed to his home a notice or delinquent order directing him to report by mail, telegraph, or in person to the office of the adjutant general of the state of New Jersey by the 15th of April, 1918. The notice provided:

'Unless, upon your so reporting to this office, orders rescinding the present order are issued, then from and after the date just specified you shall be in the military service of the United States.'

This order of April 5, 1918 was never rescinded. Appellee did not report as directed and he was recorded as a deserter. He was apprehended through the military authorities of the United States on September 6, 1921. The proper military officer duly preferred a charge under the fifty-eighth Article of War, in which charge and specification it was alleged that he was duly inducted into the military service of the United States, and by his remaining absent deserted that service. This charge is now untried, and, awaiting trial, he was confined in the guard house at Governor's Island, New York Harbor. On April 19, 1919, the appellee was arrested under a charge of having violated the provisions of the Selective Service Regulations and was arraigned in the District Court of New Jersey, but he has never been tried on that charge. After his arrest by the military authorities, he sued out this writ of habeas corpus in the Southern district of New York.

Persons lawfully called, drafted, or ordered into or to duty or for training in military service of the United States are persons subject to military law from the date they are required by the terms of the call, draft, or order to obey the same. Article 2 of Articles of War, 41 Stat. 787. Under the Selective Service Law, approved May 18, 1917, all male persons between the ages of 21 and 30 (except persons already in the military or naval service) were required to register on June 5, 1917. Appellee came within this class as to age, and he registered and became subject to the orders of his local board and to the orders of the adjutant general of the state of New Jersey in accordance with the rules and regulations prescribed by the President on November 8, 1917. What has been said above as to the happening of events as to appellee culminated in the issuance by the adjutant general of the state of New Jersey of an induction order on April 15, 1918. If this order was lawfully made, pursuant to the requirements of the Selective Service Law, then the military authorities have jurisdiction over the appellee, and he may not succeed in this proceeding.

Appellee contends that because of his absence in South America, sailing under a lawfully issued passport, without objection by the War Department, followed by the various extensions by the Consul General at Buenos Aires, he could not be inducted into service during that time by the military authorities. The Provost Marshal General consented to such an absence for six months, and the further extensions made by the consul were without knowledge or consent of the Provost Marshal General or the local board to whose orders he was subject. The situation which confronted the country at the time of the passage of the Selective Service Law required an army of millions, and it was determined that the burden be borne equally by all her citizens, except those provided for, who were required at home. This was emphasized by the President in his proclamation setting the date of registration. Under the act (40 Stat. 1665) the rules and regulations prescribed by the President provided that all persons between 21 and 30 years of age were liable to call, and later, by amendment on August 31, 1918, the ages were fixed at from 18 to 45, and civilians were thus drawn into military service. Provision was made for exemption, and registrants were given the right to a hearing, but this right must be claimed, and, if not claimed, it was waived. The act (chapter 15, 40 Stat. 76 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 2044a et seq.)) was held to be constitutional and the rules and regulations thereunder prescribed by the President had the effect of law. Arver v. United States (No. 663) 245 U.S. 366, 38 Sup.Ct. 159, 62 L.Ed. 349, L.R.A. 1918C, 361, Ann. Cas. 1918B, 856; Angelus v. Sullivan, 246 F. 54, 158 C.C.A. 280. The same rules and regulations as were prescribed by the President on November 8, 1917, were in force and effect at the time of the appellee's induction.

We are not concerned with appellee's guilt or innocence of the charge of desertion for, if the military authorities have lawful jurisdiction, they must try that issue. But by section 6 of the Selective Service Law (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 2044f), it is provided that:

'Any person * * * who, in any manner, shall fail or neglect fully to perform any duty required of him in the execution of this act, shall, if not subject to military law, be guilty of a misdemeanor, and upon conviction in a District Court of the United States having jurisdiction thereof be punished by imprisonment for not more than one year, or if subject to military law, shall be tried by court-martial and suffer such punishment as a court-martial may direct.'

Thus, after the induction, a registrant becomes subject to military law and must be tried for an offense against it by the military authorities. Franke v. Murray, 248 F. 865, 160 C.C.A. 623, L.R.A. 1918E, 1015, Ann. Cas. 1918D, 98. If a court-martial has jurisdiction, its proceedings are not subject to review by the civil tribunals, except for the purpose of ascertaining whether a military court has jurisdiction of the person or subject-matter, and whether, though having such jurisdiction, it had exceeded its powers in the sentence pronounced. Carter v. Roberts, 177 U.S. 496, 20 Sup.Ct. 713, 44 L.Ed. 861; Carter v. McClaughry, 183 U.S. 365, 22 Sup.Ct. 181, 46 L.Ed. 236.

Appellee's absence from the United States did not in any manner affect the jurisdiction of the draft officials over him. He was subject to...