Commers v. United States

• Decision Date: 25 July 1946
• Docket Number: No. 276.,276.
• Citation: 66 F. Supp. 943
• Parties: COMMERS v. UNITED STATES.
• Court: U.S. District Court — District of Montana

66 F. Supp. 943

COMMERS v. UNITED STATES.

No. 276.

District Court, D. Montana, Helena Division.

July 25, 1946.

John W. Mahan and C. E. Pew, both of Helena, Mont., for petitioner.

Francis J. McGan, Atty., Department of Justice, of Butte, Mont., for respondent.

BROWN, District Judge.

Petitioner filed his amended petition for a declaratory judgment, alleging that he is a native born citizen of the United States and a resident of Helena, Montana; that the United States, acting under the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq., drafted him into the military service of the country on the 19th day of October, 1942; that he remained in such service until the 6th day of August, 1945; that upon being selected he took his basic training in infantry in the United States; that he was thereafter assigned to the Sixth Division of the United States Army; that with that Division he was sent to the Pacific theater of war on the 20th day of September, 1943, and took part in several major engagements against the Japanese Army while in that theater of operation; that while so fighting he was wounded in combat action and as a result he is totally unable to follow any substantially gainful occupation at manual work, continuously or at all; that prior to his induction into the Army he was earning $200 a month and is now receiving from the Veterans Administration of the United States the sum of $34.50 a month for his disabilities. He alleges his taking into the Army by the United States constituted slavery and involuntary servitude condemned by the Thirteenth Amendment to the Constitution; that his body was his private property and could not be taken without just compensation under the Fifth Amendment to the Constitution, and that he has a right to maintain the action against the United States without specific consent on its part to be sued other than the consent implied from the Fifth Amendment to the Constitution. He prays for a declaratory judgment of the Court, construing the Fifth, Seventh and Thirteenth Amendments to the Constitution, and declaring that his induction into the Army constituted a taking of his body, and its earning power, his private property, for public use and for which he was entitled to just compensation under the Fifth Amendment; that he has a right to a trial by jury in this court for a determination of the compensation to be paid him.

The respondent has filed a motion to dismiss on the grounds (1) that the amended petition fails to state a claim upon which relief can be granted, and (2) the Court is without jurisdiction to hear and determine this cause for that the United States cannot be sued without its consent and that such consent has not been given.

Extensive oral argument was had before the Court by counsel for the respective parties and a voluminous brief filed. The theory of the petitioner seems to be set out in the following paragraphs of his complaint, which read:

"XV. That by reason of the foregoing, petitioner has been damaged beyond the power of respondent to restore; but that he has been damaged financially to the extent of the cost of a comfortable livelihood, comparable to that enjoyed by the average citizen in comfortable financial circumstances; the cost of all necessary or beneficial hospitalization, and the cost of such education or vocational training as will enable petitioner to receive as much enjoyment out of his remaining life as is reasonably possible;" "XVIII. That the body of petitioner was taken by respondent by virtue of said acts of Congress, and acting through its War Department and the officers and agents thereof, for a public use, to-wit: the defense of the United States against its enemies, and was used by said respondent for such purpose, and as the direct result of such use the body of petitioner has been injured and damaged and his earning power destroyed as herein set forth;"

"XXIII. That under the pronouncement contained in said Declaration of Independence, and under said constitution and the amendments thereto above set forth or referred to, the body of petitioner is his own, and the earning power of his body is his property, and not the property of the United States or of any other group of its citizens; that under the institutions of liberty established by the Constitution each citizen has equal right to life, liberty and the pursuit of happiness, and each citizen has an equal share in the sovereignty of the United States; that when in the course of human events a part of such citizens are required by law to sacrifice their liberty, the pursuit of happiness, and the integrity of their bodies, in the common defense, they do not thereby become the slaves, serfs, or chattels of those who do not fight; to be sacrificed without obligation; but under the compact under which we live, those disabled in the common defense are entitled, not only as a matter of natural right, as between sovereigns, but by the express terms of the Fifth Amendment to said constitution, to be restored as near as may be to a dignified and honorable status among the sovereign people of this democracy, and to just compensation; and they also have the right, as a corollary to the main proposition, to the due process of law and the jury trial in establishing that obligation, guaranteed by said constitution and its amendments;"

"XXVII. That the expenditure of the bodily integrity of man and of his earning power in battle or in any other type of military service in time of war is the taking of private property for a public use, for which the respondent is required to make just compensation under the Fifth Amendment to the Constitution, the same as for earning power in the form of ships, planes, guns, or other processed articles of merchandise, or material of war;"

"XXX. That no consent to be sued, other than the consent implied from the Fifth Amendment, is necessary to entitle petitioner to maintain this action; that moreover, this is not an action for a specific recovery against the respondent, but is a proceeding for a judgment of this Court construing the constitutional provisions herein referred to; that this Court is a Court of general jurisdiction in all matters arising under the constitution or laws of the United States, and has jurisdiction to entertain this action."

The petitioner apparently bases his right to maintain this action upon the theory that his body is private property; that it is owned by him and such being true it falls within the purview of that portion of the Fifth Amendment to the Constitution which provides: "Nor shall private property be taken for public use, without just compensation." Counsel for petitioner have cited no authority holding that since the adoption of the Thirteenth Amendment to the Constitution the body of a human being within the United States is that character of private property referred to in the Constitutional Amendment, or is subject to private ownership. The argument advanced, that the body of the petitioner is private property owned by him which could not be taken for public use without just compensation, is pregnant with the admission that his body owned by him is private property which could be taken for public use upon the payment of just compensation. The taking of the character of private property contemplated by the Fifth Amendment for public use upon the payment of compensation is a taking not limited to times of war, but the right may be exercised equally as lawfully under the Constitution by the United States in times of peace, and to assert that one's body is private property that may be taken by the United States for any governmental purpose of any kind upon the payment of just compensation is to contend for something so far contrary to our theory or government, the relationship of the government and citizens as to be untenable.

In adopting the Constitution the people authorized the Congress to raise and support armies. Article 1, Section 8, Clause 12. This was not only an authorization to Congress, it was also a mandate to Congress to raise and support armies whenever the nation was in peril and under attack by a foreign power, and in enacting the Selective Training and Service Act of 1940, Title 50 Appendix, U.S.C.A., § 301 et seq., the Congress but carried out the constitutional authority granted it. Arver v. United States, Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856. The power to raise and support armies, granted to the Congress by the Constitution, is neither limited nor conditioned by the Section. It is an unrestricted grant of power unless, as contended by petitioner, the Fifth Amendment to the Constitution conditions the power of Congress to raise and support armies upon payment of just compensation to those inducted into the army. If, as contended by petitioner, his body and its earning power in civilian pursuits is his own private property which cannot be taken without just compensation for a public use, then the taking of his body was not at the time he was injured, but at the time he was inducted into the army. It was at that time that he was prevented from capitalizing on its actual earning power in civilian pursuits and it was at that time that the right to just compensation arose. If the United States paid the petitioner less than $200 a month when he was first taken into the army, he was then earning less than he was when his body was taken, and under his theory just compensation would be the difference between what he was then being paid by the government and what he had been earning when he was taken. The fact that he was wounded and the earning power of his body permanently impaired operates only to entitle him to further compensation for a permanent impairment after his discharge, whereas had he been discharged unwounded and in good bodily health, the payment of just compensation by the government...