Rudisill v. Chesapeake & O. Ry. Co.

• Decision Date: 01 April 1948
• Docket Number: No. 5701.,5701.
• Citation: 167 F.2d 175
• Parties: RUDISILL v. CHESAPEAKE & O. RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

167 F.2d 175 (1948)

RUDISILL v. CHESAPEAKE & O. RY. CO.

No. 5701.

Circuit Court of Appeals, Fourth Circuit.

April 1, 1948.

R. Roy Rush, Asst. U. S. Atty., of Roanoke, Va., (Howard C. Gilmer, Jr., Acting U. S. Atty., of Pulaski, Va., on the brief), for appellant.

J. M. Perry, of Stanton, Va., and Edward M. Hudgins, of Richmond, Va., for appellee.

Before PARKER, SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

The question raised in this case is whether Section 8 of the Selective Training and Service Act of 1940, as amended, 50 U.S. C.A.Appendix, § 308, providing for the restoration to his former employment of a person discharged from the land or naval service, applies to a person who was deferred from induction because he was engaged in an endeavor essential to the war effort, and who surrendered his position voluntarily in order to be eligible for active duty, and was thereupon inducted into the armed forces. Rudisill, the plaintiff, was an expert railroad telegraph operator who had been deferred by his local Draft Board from military service at the request of the Railway Company because his services were deemed necessary for the performance of the duties imposed upon the Railway Company by the war. The deferment was extended for successive periods, limited by executive order to six months' duration, from July 24, 1942, to September 26, 1945. During the last six month's period, that is, on July 19, 1945, the local Board, at the request of the plaintiff, classified him as 1-A. Thereupon the Railway Company appealed and the order of deferment was continued, and on August 9, 1945, the plaintiff was deferred to September 26, 1945. During his deferment he was prohibited from voluntary enlistment by Executive Order of the President No. 9279, par. 4, 50 U.S.C.A.Appendix, § 310 note, and he was ineligible, for induction under the statute, 50 U.S.C.A.Appendix § 305(k), so long as he remained in an endeavor essential to the war effort.

On August 9, 1945, the plaintiff resigned his position in order, as stated in his letter of resignation, that he might establish himself in a non-essential status, and might be drafted into the military service. On August 19, 1945, he wrote his local Draft Board requesting that he be made available for services in the armed forces, and on August 23, 1945, he volunteered to be inducted. The Local Board took no action until September 26, 1945, the date of the expiration of his deferment, when it ordered the appellant to report for induction. On October 8, 1945, he was inducted.

The plaintiff received an honorable discharge and a certificate of satisfactory completion of training and service on April 1, 1946; and on April 21, 1946, applied for reemployment in his former position. His application was refused but he was offered reemployment as a new man without seniority which he declined until November 5, 1946, when he returned to work without benefit of his previously acquired seniority. He sues to obtain restoration to his former position and to recover the pay lost as the result of the Railway Company's failure to comply with the terms of the statute.

With respect to a person who has completed his services in the land or naval forces, and has been given a certificate of discharge, Section 308 of the statute provides:

"(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within forty days after he is removed from such training and service —

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(B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so * * *." See also Section 357.

It will be noted that the facts relating to the plaintiff's employment and military service bring him within the literal terms of the statute; but the District Judge holds the opinion that in this war Congress provided not only for the active service of men at the front, but also for the use of the manpower of the nation in civilian service at home when necessary to the maintenance of the war effort, and that the assignment of a registrant to either kind of service was binding upon him. To this end provision was made for the registration of all persons between the ages of 18 and 65, who were required to make returns to questionnaires so as to determine their availability for services in the national defense, Section 302. The President was authorized to provide for the deferment of all men whose employment in industry, agriculture or other occupation should be found necessary to the maintenance of the national health, safety or interest, Section 305(e) (1); Selective Service Boards were set up to hear and determine all questions with respect to the inclusion for or deferment from training and service, Section 310(a) (2), and these Boards were directed to defer from service any person found to be engaged in an endeavor essential to the war effort so long as the registrant remained so engaged, Section 305(k); voluntary enlistment by one in deferred classification was prohibited, Section 303(a), and it was provided by Executive Order 9279 that entry into the armed services was permissible only under the provisions of the statute, and all hiring of workers in any occupation essential to the war effort was required to be done through the United States Employment Service under the supervision of the War Manpower Commission.

The argument based on these provisions is well stated by the District Judge as follows:

"It is clear that in enacting the Selective Service Act of 1940 the purpose of Congress was not limited merely to the recruitment of men for the military and naval forces. The act had the broader purpose of arraying the man-power of the nation and utilizing it for whatever activities, whether military or civilian, as might be necessary to the national safety. The purpose was not only to pick men for the army and navy but also to determine those who, in a time of war or threatened war, could serve with greater value to the country outside of the armed forces.

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"The reference to these scattered provisions of the...