Ex parte Billings, 776.

• Decision Date: 11 September 1942
• Docket Number: No. 776.,776.
• Citation: 46 F. Supp. 663
• Parties: Ex parte BILLINGS.
• Court: U.S. District Court — District of Kansas

46 F. Supp. 663

Ex parte BILLINGS.

No. 776.

District Court, D. Kansas.

September 11, 1942.

William D. Reilly, of Leavenworth, Kan., for petitioner.

Lester Luther, Asst. U. S. Atty., of Topeka, Kan., and Captain Allan R. Browne and Lieutenant W. H. Edwards, both of the Judge Advocate General's Department, Leavenworth, Kan., for respondent.

HOPKINS, District Judge.

This is a habeas corpus case. Petitioner contends that he is unlawfully restrained of his liberty and held for army service by Maj. Gen. Karl Truesdell, United States Army, Leavenworth, Kansas; that petitioner is not a member of the armed forces of the United States, is not subject to military jurisdiction, and that he should be brought before the civil courts for any alleged unlawful act committed by him. In response the Army sets up that petitioner was duly inducted into the Army on or about August 13, 1942, for the duration of the war and that formal charges had been preferred against petitioner for wilful disobedience of a lawful command of his superior under Article of War No. 64, 10 U.S.C.A. § 1536. In reply to this, petitioner states that he is a conscientious objector and urged that claim before his local draft board, and being overruled appealed to the state board, and being denied by the state board, he then presented himself at the reception center, Fort Leavenworth, Kansas, where he was given a physical examination and notified of his acceptance for service in the Army, and thereafter was commanded to stand and take an oath of induction, which he refused, informing the officers that he was a conscientious objector.

The writ was ordered to issue. Petitioner was produced in court and testified at some length.

From petitioner's own testimony it appears that he reported to the reception center at Leavenworth in obedience to orders of his local draft board; that upon reporting he was assigned to barracks, slept there that night, and on the following morning a soldier directed him to the army mess hall where he had his breakfast and proceeded with various tests and examinations, including physical examination. The next step involved finger printing and petitioner balked, saying that if finger printing "involves induction into the army I shall refuse to be finger printed," and speaking to officers in the induction office petitioner explained his intention to refuse to serve in the army and asked to be turned over to the civil authorities. The officers explained that petitioner was already in the army and ordered him to stand and take the oath. Petitioner refused to stand and refused to raise his hand, and after the oath was read to him he said, "I do not. I refuse to take this oath." Petitioner was then ordered to the guard house and this habeas corpus proceeding followed.

We have the question: When is induction actually accomplished? In the movement from civilian to soldier, at what point does the authority of the military attach? Can a draftee, examined and found acceptable and who has been notified of his acceptance and told that he is now in the army, stay beyond the reach of military orders by refusing to take and accept an oath? Has this government become so impotent that in a time of great emergency and danger army service must depend upon acceptance by the citizen? If so, petitioner should be ordered released, but if not, the writ should be denied. The question is one of jurisdiction; jurisdiction of the Army over the petitioner. Sanford v. Robbins, 5 Cir., 115 F.2d 435, certiorari denied 312 U.S. 697, 61 S.Ct. 737, 85 L.Ed. 1132.

Before giving specific consideration to the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 301 et seq., and the rules and regulations made thereunder, it may be of interest to review some of the facts developed by petitioner's testimony.

Petitioner is a single man with no dependents. He is thirty-one years of age, six feet tall and weighs 165 pounds. To all appearances he is a well-developed, able-bodied man. His preliminary education was in this state. He was graduated from the University of Kansas, high in his class; was elected to Phi Beta Kappa. He later attended the University of Paris for two years. Following this he served three years in the diplomatic service in the American Embassy at Moscow. Spent some time in China and Japan. Later studied at Harvard University where he procured his Master's Degree. Is working for a Doctor's Degree. During the past summer he has taught in the University of Texas.

It appears that instead of being a conscientious objector under the regulations and the law, petitioner is an agnostic, as found by the draft board. He likens himself to Socrates and refuses to conform to or abide by any law of the United States that does not suit his whim. While claiming to be a citizen of the United States ("and proud of it"), he says he believes, with some modifications, in the doctrine of Mohandas Gandhi. He says that if the Germans and the Japanese came to take over our country, our people and institutions, he would refuse to resist but would refuse to cooperate with them. He discounts claims of German and Japanese atrocities; says they are greatly exaggerated and asserts that many of the alleged German atrocities of the last war did not in fact take place.

It is helpful to review some of his testimony in considering the question presented:

"I have friends who are professors of law there at the University of Texas also, and they were rather interested in my case and they looked up the law and they told me. * * *

"Q. (Interrupting) When did they do that? A. Oh, this was last January.

"Q. You were sort of getting ready for this business? A. Oh, yes, I have expected to go to prison if I passed the physical examination. I expected to go to prison anyway. I had made up my mind I would never serve in the army and I would take the consequences, whatever they might be, so I had inquired from everybody who I thought might know about the draft law. I went to the state draft headquarters at Austin, Texas. The draft headquarters are in the same city as the University and the state officials of the draft there, who are army men, informed me that I was not in the army until or unless I took the oath of induction and took the physical examination.

"Q. You know some of these officers might be mistaken as to what the law is. A. Yes, they might be, but I take also a conscientious objector newspaper. * * * A. And in this magazine they reported a number of cases. They record cases. That is mainly what the magazine is for, to inform other conscientious objectors.

"Q. Well, you have been studying and working on this question then for a good many months, I take it? A. Oh, yes, after all, it involved my whole life, my future and everything.

"Q. Did you tell some folks that you were going to take this physical examination and you thought likely you wouldn't pass, but if you did, then you were going to refuse to serve? A. Oh, yes, I told many people that. * * *

"Q. Yes. Why do you seek to get into the civil courts? If you don't believe in everybody obeying the laws and the rules, why do you wish to submit your matter to any court? A. Well, I don't know. It is sort of like Socrates drinking the hemlock. I thought the law was unjust, but I didn't feel the call to evade it.

* * * * * *

"Q. Have you ever voted at elections? A. Yes, oh, surely.

"Q. Did you vote for a congressman? A. Yes.

"Q. Did you expect him to vote to adopt laws that you wouldn't abide by? A. Well, no.

* * * * * *

"Q. Anyhow, why do you prefer the civil courts since there are two options? Why do you prefer the civil courts rather than the court martial of this army? A. Well, I don't know. * * * I think the civil courts are more objective and more fair; that they will convict me of what I am actually guilty of, for refusing to serve. * * * I was simply flabbergasted when the army authorities succeeded in holding me after this physical examination because every inquiry I have made, and I have made them from the army officers in charge of the state draft offices in Texas, I have made them from professors of law; one of them was a visiting professor of law who was there at Texas and he looked the thing up. Everybody said without any hesitation that you were not in the army until you subscribed to the oath of induction, until you took the oath of induction, and taking the physical examination did not put you outside the jurisdiction of the civil courts."

* * * * * *

"The Court: You were seeking protection from the army? A. That is right. Yes, I was, yes. That is right. I was not seeking to be protected by the army, but to be protected from the army."

Referring to the attempt of a friend to change him:

"A. He was a volunteer, too. He spent all his time trying to get me to see the light, trying to make me believe it was my duty.

"The Court: To be really a true American Citizen? A. Well, to go into the army, which he thinks is serving America, but I don't think the army is serving the best interests of this country. * * *"

Speaking of his refusal to put on a uniform, petitioner testified:

"The Court: What is this you have on? A. This is the same kind of thing they are wearing. This is supposedly the army thing.

"The Court: Isn't it the regular army uniform? A. Yes, it is.

"The Court: You call it, `this thing.' A. Well, you see I view the army somewhat differently from what the majority of people do.

"The Court: From what ordinary Americans do. You don't claim to be an American, do you? A. I certainly do, sir, and I am very proud of that fact."

Petitioner was quick to seek the court and the aid afforded by its processes. He draws upon rights accorded to him and all others alike, and without prejudice by reason of the somewhat ambiguous philosophy disclosed in his testimony.

The history of the writ of habeas corpus is lost in antiquity. But it was in use before Magna Charta and exists today as part of...