321 U.S. 542 (1944), 215, Billings v. Truesdell

Docket NºNo. 215
Citation321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917
Party NameBillings v. Truesdell
Case DateMarch 27, 1944
CourtUnited States Supreme Court

Page 542

321 U.S. 542 (1944)

64 S.Ct. 737, 88 L.Ed. 917

Billings

v.

Truesdell

No. 215

United States Supreme Court

March 27, 1944

Argued February 2, 1944

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE TENT CIRCUIT

Syllabus

1. A registrant under the Selective Training and Service Act of 1940 becomes "actually inducted" within the meaning of § 11 of the Act when, in obedience to the order of his draft board and after the Army has found him acceptable for service, he undergoes whatever ceremony or requirements of admission the War Department has prescribed. P. 559.

2. Until "actually inducted" within the meaning of § 11 of the Selective Training and Service Act, a registrant under that Act is subject solely to civil, and not to military, jurisdiction. P. 557.

3. A registrant under the Selective Training and Service Act of 1940, whose claim that he was a conscientious objector had been rejected, was ordered by his board to report for induction. At the induction center, he was examined and put in Class 1-B. He informed the officers in charge that he refused to serve in the Army, and that he wanted to turn himself over to the civil authorities. He refused to take the oath, but it was read to him and he was told that he was in the Army. He was then ordered to submit to fingerprinting, but refused to obey. Military charges were preferred against him for willful disobedience of that order.

Held: that he was not subject to trial by court-martial, but was subject solely to civil jurisdiction. Pp. 544, 558.

135 F.2d 505 reversed.

Certiorari, 320 U.S. 725, to review the affirmance of an order, 46 F.Supp. 663, discharging a writ of habeas corpus and remanding the petitioner to the custody of the respondent.

Page 543

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Sec. 11 of the Selective Training and Service Act of 1940 (54 Stat. 894, 50 U.S.C.App. § 311) provides that

No person shall be tried by any military or naval court martial in any case arising under this Act unless such person has been actually inducted for the training and service prescribed under this Act or unless he is subject to trial by court-martial under laws in force prior to the enactment of this Act.1

Petitioner Billings, who is held by the Army on a charge of a violation of the Articles of War, claims that this provision of the Act exempts him from military jurisdiction and makes him responsible solely to the civil authorities. The answer turns on whether or not Billings has been "actually inducted" into the Army. These are the facts.

Page 544

Billings claims to be a conscientious objector. He registered under the Act with Local Board No. 1 of Ottawa County, Kansas, stating on his card at the time that he would never serve in the Army. He was given a 1-B classification because of defective eyesight, but was reclassified as 1-A in January, 1942. The local board rejected his claim that he was a conscientious objector. He appealed to the board of appeal, which affirmed the ruling of the local board. Though petitioner resolved never to serve in the Army, he desired to comply with all of the requirements of Selective Service short of actual induction, so that he might avoid all civil penalties possible. Accordingly, he consulted with draft officials in Texas and faculty members at the University of Texas, where he taught, and concluded that taking the oath was a prerequisite to induction into the armed forces. He thought he might be finally rejected by [64 S.Ct. 740] the Army on account of defective eyesight. But he resolved that, if he was not rejected at the induction station, he would not take the oath, but would turn himself over to the civil authorities. He was ordered by his local board to report on August 12, 1942, and to proceed to the induction center at Fort Leavenworth. He joined the group selected for induction and was transported to Fort Leavenworth, where he and the others in his group spent the night in the barracks. The next morning, after breakfast in the mess hall, petitioner was given both the physical and mental examinations, during which he made clear to the examining officials his purpose not to serve in the Army. He then reported to the officer who passed on the results of the examinations, and who told him that he had been put in Class I-B. He then reported to the induction office and told the officers in charge that he refused to serve in the Army and that he wanted to turn himself over to the civil authorities. They said that he was already under the jurisdiction of the military, and put him under guard to prevent him from

Page 545

leaving the reservation. With their consent, however, he used the telephone and procured the services of an attorney whom he retained to file a petition for habeas corpus on his behalf. Thereupon, an Army officer read petitioner the oath of induction, which petitioner refused to take. He was advised that his refusal made no difference, that "You are in the army now." He was then ordered to submit to fingerprinting. He refused to obey. Military charges were preferred against him for willful disobedience of that order.

On August 14, 1942, petitioner filed this petition for a writ of habeas corpus alleging that he was not a member of the armed forces of the United States, that he was not subject to military jurisdiction, and that, if he had violated any laws, they were the civil laws of the United States. The writ issued. Respondent filed a return, and a hearing was had at which petitioner testified. The District Court discharged the writ and remanded petitioner to respondent's custody, holding that petitioner was subject to military jurisdiction. Ex parte Billings, 46 F.Supp. 663. The Circuit Court of Appeals affirmed, holding that "[i]nduction was completed when the oath was read to petitioner and he was told that he was inducted into the Army." 135 F.2d 505, 507. The case is here on a petition for a writ of certiorari which we granted because of the importance of the problem in the administration of the Act.

I

It is conceded that petitioner was not "actually inducted" in the Army within the meaning of § 11 of the Act when he was ordered to report to the induction station. But it is contended that, from that time, on he was subject to at least a limited military jurisdiction by reason of the Articles of War.

Among those whom Article 2 of the Articles of War, 41 Stat. 787, 10 U.S.C. § 1473, subjects to military law are

Page 546

all persons

lawfully called, drafted, or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft or order to obey the same.

This provision, standing alone, would have made petitioner subject to military law from August 12, 1942, the date when he was required by the local board to present himself for induction. That was indeed the consequence under the Selective Draft Act of 1917 (40 Stat. 76). Franke v. Murray, 248 F. 865; United States v. Bullard, 290 F. 704; Digest Op. J.A.G. 1912-1930, Sec. 2238; 2 Op. J.A.G. (1918) 327.3; Second Report, Provost Marshal General (1918), p. 221. The Articles of War then in force (39 Stat. 651) had substantially the same provision as the present Article 2. Sec. 2 of the 1917 Act provided, moreover, that

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. . . .

40 Stat. 78. And the regulations under the 1917 Act stated that, when a registrant was ordered to report to a local board or a state adjutant general for duty, he was "in the military service" from and after the day and hour thus specified. §§ 133, 159D, 159E, 159F, 159G, 161. And see United States v. McIntyre, 4 F.2d 823. But the present Act and the regulations promulgated under it are differently designed.

Sec. 3 of the Act provides that

no man shall be inducted for training and service under this Act unless and until he is acceptable to the land or naval forces for such training and service and his physical and mental fitness for such training and service has been satisfactorily determined.

Moreover, as we have noted, Congress, by § 11, withheld from military courts martial jurisdiction over cases arising under the Act unless the person involved had been "actually inducted" or "unless he is subject to trial by court-martial under laws in force prior to the enactment of this Act." The "actually inducted"

Page 547

clause of § 11 was offered as an amendment on the floor of the Senate by Senator Bone. 86 Cong.Rec. 10895. It was designed, as stated by the Senate conferees, to give civil courts jurisdiction over violations of the Act prior to induction for training in substitution for the House provisions that civil and military courts should have concurrent jurisdiction in such cases. 86 Cong.Rec. 11710, 12039, 12084. In view of this legislative history, the Congress can hardly be presumed to have restored by the second "unless" clause in § 11 what it took away by the first "unless" clause. That is to say, § 11 of the Act, read together with § 3, indicates to us a purpose to vest in the civil courts exclusive jurisdiction over all violations of the Act prior to actual induction. It is suggested, however, that, prior to that time, a selectee may be subject to military jurisdiction by reason of Art. 2 of the Articles of War, and be prosecuted before courts martial for all offenses proscribed by the Articles, provided those acts are not made criminal by the Act. Under that view, a selectee who failed to report for induction (Bowles v. United States, 319 U.S. 33) or who, having reported, refused to be examined (United States v. Collura, 139 F.2d 345) could be prosecuted for such offenses only in civil courts. § 11. But, since, by Art. 2, he became a soldier when ordered to...

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