Angelus v. Sullivan

• Decision Date: 22 October 1917
• Docket Number: 130.
• Citation: 246 F. 54
• Parties: ANGELUS v. SULLIVAN et al.
• Court: U.S. Court of Appeals — Second Circuit

246 F. 54

ANGELUS v. SULLIVAN et al.

No. 130.

United States Court of Appeals, Second Circuit.

October 22, 1917

[Copyrighted Material Omitted]

Charles Recht, of New York City, for appellant.

Francis G. Caffey, U.S. Atty., of New York City, for appellees.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS Circuit Judge.

This suit was instituted for the purpose of securing a review in the courts of the action taken by the local and district exemption boards created under an act of the Congress of the United States known as the Conscription Act, approved May 18 1917.

The complainant alleges that he is a subject of Austria-Hungary and that he arrived in the United States on November 10, 1913. He avers that neither he nor his father at any time made declaration of intention to become a citizen of the United States, and that he is therefore an alien who has not declared his intention to become a citizen. He charges that as such he is not subject to conscription under the provisions of the Conscription Act, which provides that aliens who have not declared their intention to become citizens are not subject to the draft provided for in the said act. He avers that he filed an affidavit in due form, claiming exemption from military service by reason of the fact of his being an alien who had made no declaration of his intention to become a citizen, and that the defendants, who constitute local board No. 155 of the city of New York, which division has jurisdiction over the district in which he resides, denied his application for exemption; and that upon appeal to the district board of the city of New York, which is the local board having jurisdiction of appeals from local board No. 155, the finding of the local board was affirmed. He has accordingly been certified and ordered to report for military service. He asks an injunction enjoining the defendants, and all persons claiming to act in their authority, direction, or control, from certifying his name to the military authorities for military service, and that the defendants be directed to grant him the exemption from military service to which he is entitled under the act, and to strike his name from the list of persons certified to as subject to military service. An order was granted by a judge of the District Court directing the defendants to show cause why they should not be enjoined and restrained pendente lite. Upon the return of the order to show cause, a special appearance was filed for the defendants, and motion was made to dismiss the proceedings for lack of jurisdiction. The motion was granted. In granting the motion the District Judge said:

'I think Congress had no intention that the courts should interfere with this drafting proposition. It is a military measure in time of war, and it would be most subversive of military control and the proper disposition of this extremely difficult new problem if the courts should interfere in this situation. If Congress had intended that the courts should review the action of the local and district boards it would have so provided, and, unless an appellate court says to the contrary, I am of the opinion that a District Court of the United States should resolve any doubt in favor of the government; any other view might tend seriously to embarrass the work of raising an army, with its manifold difficulties and its tremendous detail. If those who believe they are entitled to exemption were able to apply to the courts, it would be a most disturbing situation and directly contrary to my understanding of the intent of Congress. Congress intended this to be an executive measure, to be carried out by the executive branch of the government, without interference of the courts.'

The appeal is taken from this order, and the complainant claims not only that the Conscription Act is unconstitutional, but that the District Court has jurisdiction to grant the relief asked for in the complaint.

This court has no doubt as to the constitutionality of the act of Congress. The Constitution, art. 1, Sec. 8, expressly provides that the Congress shall have power to raise and support armies, and to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces. The purpose of the Conscription Act is to raise an army, and the right to raise it does not involve the exercise of an implied power, but of one expressly granted. How can the courts deny to Congress a right which the Constitution in plain and distinct terms confers upon it?

The Constitution, in conferring the power upon Congress, has not prescribed the mode in which the power shall be exercised. The power is conferred fully, completely, and unconditionally. It is for the Congress to determine the means by which the army shall be raised. It is left to its judgment whether it shall be raised by calling for volunteers, or whether it shall be raised by conscription. At the time the Constitution was adopted conscription was not an unknown mode of raising armies, but had been resorted to by governments throughout the world.

In May, 1777, the General Assembly of Virginia had passed a Conscription Act which had been drafted by Thomas Jefferson. Writings of Thomas Jefferson (Ford's Ed.) vol. 2, p. 123. And other of the colonies had resorted to like measures. The Constitution adopted by New York in 1777 declared, 'It is the duty of every man who enjoys the protection of society to be prepared and willing to defend it. ' If it had been intended that Congress should not have the power to raise anything but a volunteer army, the grant of power would have been restricted and not made unconditional. Conscription was resorted to on both sides during the Civil War, and the validity of the draft laws was upheld by the courts in the North and in the South. McCall's Case, Fed. Cas. No. 8669 (1863); Lanahan v. Birge, 30 Conn. 438, 443 (1862); Kneedler v. Lane, 5 Phila. (Pa.) 485; Id., 45 Pa.St. 238 (1863); In re Griner, 16 Wis. 423 (1863); Matter of Spangler, 11 Mich. 298 (1863); Druecker v. Salomon, 21 Wis. 621, 94 Am.Dec. 571 (1867); Allen v. Colby, 47 N.H. 544 (1867); Ex parte Coupland, 26 Tex. 386 (1862); Jeffers v. Fair, 33 Ga. 347 (1862); Barber v. Irwin, 34 Ga. 28 (1864); Parker v. Kaughman, 34 Ga. 136 (1865); Ex parte Hill, 38 Ala. 429 (1863); Ex parte Bolling, 39 Ala. 609 (1865); Gatlin v. Walton, 60 N.C. 333 (1864); Burroughs v. Peyton, 16 Grat. (57 Va.) 470 (1864).

And Judge Cooley, in his Principles of Constitutional Law, p. 99, discussing the power of Congress over armies, declares that 'all persons capable of performing military duty, irrespective of age or previous exemptions, may be compelled to do so under laws for the purpose. ' The argument made against the constitutionality of the draft act of 1863 has always been regarded as extremely weak. The argument was that liability to compulsory military service was due, before the adoption of the Constitution, to the states; that it had not been granted to the federal government by the Constitution; and that it must, therefore, still be enforced, if at all, by the states. 'Whether a power can be implied,' said Mr. Lincoln, 'when it is not expressed, has often been the subject of controversy; but this is the first case in which the degree of effrontery has been ventured upon of denying a power which is plainly and distinctly written down in the Constitution. ' Washington, who presided over the deliberations of the Constitutional Convention, transmitted to Congress, in the second year of his administration, a bill which provided for compulsory military service, which was jointly drawn by himself and General Knox, who was Secretary of War at the time. See American State Papers, vol. 1, p. 5.

The validity of the draft act of 1863 never was passed on by the Supreme Court. Mr. Justice Field, however, although the question was not directly involved, said in Tarble's Case, 13 Wall. 397, 408 (20 L.Ed. 597) (1871), in speaking of the power of the government to raise and support armies:

'The execution of these powers falls within the line of its duties, and its control over the subject is plenary and exclusive. It can determine, without question from any state authority, how the armies shall be raised, whether by voluntary enlistment or forced draft, the age at which the soldier shall be received, and the period for which he shall be taken, the compensation he shall be allowed, and the service to which he shall be assigned. * * *'

So in Jacobson v. Massachusetts, 197 U.S. 11, 29, 25 Sup.Ct. 358, 362 (49 L.Ed. 643) (1905), in discussing the liberty secured by the Constitution of the United States, Mr. Justice Harlan, speaking for the court, declared that it did not import an absolute right in each person to be at all times and in all circumstances wholly freed from restraint, and he added that-- 'he may be compelled by force, if need be, against his will, and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense. It is not, therefore, true that the power of the public to guard itself against imminent danger depends * * * upon his willingness to submit to reasonable regulations established by the constituted authorities, under the sanction of the state, for the purpose of protecting the public collectively against such danger.'

The Thirteenth Amendment to the Constitution did not restrict the power granted to Congress in the first article to which allusion has already been made. The amendment provides that--

'neither slavery nor involuntary servitude, except as punishment for crime, whereof the parties shall have been duly convicted,...