Smith v. Richart, Civil Action No. 1100.

• Citation: 53 F. Supp. 582
• Decision Date: 27 January 1944
• Docket Number: Civil Action No. 1100.
• Court: U.S. District Court — District of South Carolina
• Parties: SMITH v. RICHART, Colonel United States Army.

53 F. Supp. 582

SMITH v. RICHART, Colonel United States Army.

Civil Action No. 1100.

District Court, E. D. South Carolina, Columbia Division.

January 27, 1944.

Grover C. Powell, of Atlanta, Ga., and Curran E. Cooley, of Anderson, S. C., for petitioner.

C. N. Sapp. U. S. Atty., and H. H. Edens, Asst. U. S. Atty., both of Columbia, S. C., and Captain Myron T. Nailling, J.A.G.D., Litigation Officer, Fourth Service Command, of Atlanta, Georgia, for respondent.

WYCHE, District Judge (sitting by designation).

This is an application for writ of habeas corpus filed by Lila Smith, the mother of Louis Dabney Smith, Jr., to obtain his release from the military stockade at Fort Jackson, South Carolina, where he is being held awaiting trial by a general court-martial of the United States Army for violations of Articles of War 64, 65 and 96, 10 U.S.C.A. §§ 1536, 1537, 1568.

I find the facts to be as follows:

The petitioner and her son Louis Dabney Smith, Jr., (hereinafter called the registrant), are members of the sect known as Jehovah's Witnesses. On January 29, 1943, he returned the questionnaire sent him by his Local Draft Board, claiming exemption from combative and non-combative military service on the ground that he was a conscientious objector and a minister "as shown at Acts 20: 20 and Luke 8: 1 in the Bible". His claim for exemption on the ground of being a conscientious objector was later withdrawn. In his questionnaire he stated that he was eighteen years old; that he was a student at the University of South Carolina, majoring in Engineering, preparing for a B.S. degree, and intended to take an examination for a license in Engineering. He also stated that he was not a student preparing for the ministry in a theological or divinity school; that he had been a minister of Jehovah's Witnesses since September, 1938; that he had been formally ordained scripturally as shown by certain verses in Luke, John and Isaiah. He was living with his father, had always received his support, maintenance and education from his father, and no steps had been taken to remove the disability of minority, or to emancipate him from the parental custody and control.

On April 2, 1943, the Local Draft Board placed him in 1-A. The classification was appealed to the Board of Appeal on May 25, 1943, and was affirmed. On June 22, 1943, he appealed from the decision of the Board of Appeal to the President of the United States. His classification was again affirmed. In addition to the regular hearing, the Local Board granted him several special hearings after his classification, and after his first order to report for induction, in which he contended, first, that he was an advertising servant, and later a Pioneer.

The members of the Board had no prejudice against him or his religious sect; they gave full consideration to the matters that were presented by him before and after the President had denied his appeal, and classified him in 1-A, and after due consideration of his additional contentions, concluded that sufficient evidence had not been presented to the Board to justify reopening or re-classifying his case, and on September 18, 1943, he was finally ordered to report, on September 30, 1943, for induction.

On the morning of September 30, 1943, the registrant arrived at Fort Jackson, South Carolina, in company with Magistrate Ollie Mefford, Constable Hough and Constable Thornton; these men were county officers and had called for the registrant at the home of his father Louis Smith in Columbia, South Carolina, in accordance with arrangements previously made with them by his father.

The registrant's father had made arrangements with the county officers to conduct his son to Fort Jackson, South Carolina, because he knew that his son had received an order from his local draft board to report for induction on September 30, 1943, and that he was not going to report. He adopted this plan because of his sense of responsibility in his son's welfare. Neither the local board nor the military authorities knew of or participated in the plan. After the officers arrived at the Smith home, and while they were waiting, the registrant conferred with his father, who advised him to go along with the officers, that they would take him whether he resisted or not. Following this conference, the registrant left the house, entered the automobile with the officers and proceeded to Fort Jackson. No physical force was used, only "moral persuasion".

Upon arrival at Fort Jackson the party stopped at the Provost Marshal's office and were guided from that office to the Induction Station by Sergeant Taylor, who went along with the party to the Induction Station merely to direct them to the location of the Induction Station. He had no advance knowledge that the county officers would bring the registrant to Fort Jackson.

After the party arrived at the Induction Station, the county officers departed and the registrant remained in the office of Sergeant Lanier, Chief Clerk at the Induction Station. He complained to Sergeant Lanier about his classification, stating that he should have been classified 4-D as a minister. Sergeant Lanier called the Clerk of the Local Board in Columbia over the telephone and was told that the registrant had been properly classified, that he was in 1-A, and had been ordered to report on that day for induction. A short time later the registrant joined a group of inductees ordered to report on that day, and went through the process of induction along with them. Before their arrival the registrant told Sergeant Lanier that he would not take the oath. Thereupon Sergeant Lanier read to him the Army Regulations (615-500, Sec. 13e (4)). and advised him that it was not necessary for him to take the oath in order for him to be inducted into the army.

The registrant was not placed under any restraint by the military authorities after his arrival at Fort Jackson and during the induction process he was treated similarly to the other inductees in his group. He had his meals, received his physical and mental examination, and lodged in the barracks with the group. On October 1, 1943, when the group was assembled to receive the oath, he stepped out of line and announced that he refused to take the oath. After the oath was given to the group, he was allowed to return to his home in Columbia, having been transferred to the Enlisted Reserve with orders to report for active duty on October 22, 1943. On October 22, 1943, pursuant to said orders, he voluntarily reported to his local board in Columbia, South Carolina, and was transported to the Reception Center at Fort Jackson.

After the registrant reported back to Fort Jackson on October 22nd, he refused to wear the uniform, or to obey any orders of the officers, or non-commissioned officers, was subsequently arrested, and the foregoing charges preferred against him.

The registrant having not yet been tried, the sole issue before me in this controversy is: Has a court-martial of the United States Army jurisdiction of his person, and of the offenses charged against him? Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692; McCune v. Kilpatrick, Commanding Officer of Hampton Roads Port of Embarkation, et al., D.C. E. D. Va., 53 F.Supp. 80, decided, December 28, 1943.

To decide this issue several questions must be answered,

(1) Was the action of the local draft board arbitrary or unreasonable or invalid for any other reason?

I may not try over the issue as to classification passed upon by the board, but if the order of the board is found to lack foundation in law, or to be unsupported by substantial evidence, or to be so arbitrary or unreasonable as to amount to denial of due process, then I must treat it as a nullity. Baxley v. United States, 4 Cir., 134 F. 2d 998. There is nothing in the action of the board in this case upon which such a finding of invalidity can be based. The classification made by the board finds support in the statement of the registrant contained in his questionnaire, and there is nothing in the record of the trial before me upon which I can find that the board's action was arbitrary or unreasonable or invalid for any other reason.

(2) Was the registrant inducted into the United States Army?

The Selective Training and Service Act of 1940, as amended, is implemented by rules and regulations prescribed by the President and appropriate executive agencies, 50 U.S.C.A.Appendix, § 310(a) (1). Under this authority the Selective Service Regulations and Army Regulations pertaining to induction were promulgated.

The Selective Service Regulations provide for the order to report for induction, delivery of men to induction centers, reception of men at induction centers. (Selective Service Regulations, Second Edition, as amended, Section 633.1-633.10.) Section 601.7 reads: "An `inducted man' is a man who has become a member of the land or naval forces through the operation of the Selective Service System." Neither the Selective Training and Service Act nor the Selective Service Regulations prescribe the induction procedure. Army Regulations (615-500) provide a procedure for induction. Section II, Subsections d and e of Paragraph 13, read: "d. Induction. — Upon completion of the physical examination and after certification by a medical officer, selectees found to be physically and mentally fit for general military service will be inducted.

"e. Induction ceremony. (1) The induction will be performed by an officer in a short, dignified ceremony in which the men are administered the oath, Article of War 109 10 U.S.C.A. § 1581: (Here follows form of oath). * * * (4) They will then be informed that they are now members of the Army of the United States and given an explanation of their obligations and privileges. In the event of refusal to take the oath (or affirmation) of allegiance by a declarant alien or citizen he will not be required to receive it, but will be informed that his...