Ex parte Caplis

• Decision Date: 04 April 1921
• Docket Number: 3286,3287.
• Citation: 275 F. 980
• Parties: Ex parte CAPLIS (two cases .
• Court: U.S. District Court — Western District of Texas

275 F. 980

Ex parte CAPLIS (two cases .

Nos. 3286, 3287.

United States District Court, W.D. Texas, San Antonio Division.

April 4, 1921

Terrell Davis, Huff & McMillan, of San Antonio, Tex., for petitioners.

Hugh R Robertson, U.S. Atty., and Leo Brewer, Asst. U.S. Atty., both of San Antonio, Tex., for respondent.

WEST District Judge.

The cases will be considered together, as they are controlled by the same facts and the same questions of law. The petitioners were charged, by indictment filed in December, 1918, in the United States District Court at Shreveport, La., with conspiring to evade the provisions of the Selective Service Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 2019a 2019b, 2044a-2044k) on or about June 9, 1917. The respondent's return shows that the petitioners were held by the military authorities at Ft. Sam Houston under a charge of conspiracy to desert from the army. A question of jurisdiction is presented-- whether the petitioners are civilian citizens of the United States or whether they are soldiers of the army of the United States. The following are the facts:

Petitioners registered under the terms of the Selective Service Act on June 5, 1917. Within five days after having registered they left the United States, and remained absent until long after the Armistice. Their whereabouts were unknown; their mother testifying that she did not know where they were. On December 29, 1917, and likewise on January 4, 1918, questionnaires, as provided by the rules and regulations of the Selective Service Act, were mailed by their local board at Benton, La to them at their home address, Taylortown, some 30 miles distant. These questionnaires were never returned to the local board. There is evidence to the effect that they were destroyed by members of the Caplis family. The local board placed each of the petitioners in class 1, posted and mailed notices of such classification, and made the required report of delinquency to the Adjutant General of the state of Louisiana, who thereafter duly issued an order, described in section 133 of the Selective Service Regulations as the 'order into military service.' This order appeared on a post card, 'form 1014,' directing that, unless certain conditions were performed, which were not in fact performed, 'you shall be in the military service of the United States on and after April 2, 1918, at 10 o'clock p.m.' The record from the Adjutant General's office shows that this form 1014, embodying the order referred to, was mailed to each of the petitioners on March 19, 1918, and addressed to Taylortown, La., being the address given by petitioners when they registered. At the time of issuance and mailing of this order, both petitioners had long since fled the country. Neither has been discharged from the military service, if either can be said to be or to have been in the military service. If they are soldiers, their status as civilians must have been changed by some law of the United States.

Directing attention to the provisions of the Selective Service Act, and the regulations promulgated by the President thereunder, under which these parties must necessarily have been inducted into the military service, if at all, it appears that on June 5, 1917, petitioners reported at the designated point in Louisiana-- Benton-- and duly registered. No claim is made that mere registration inducted them into the military service. The next forward step toward entry into the military service was the mailing of the questionnaires by the local board of Benton to each petitioner in December, 1917, and January, 1918. At that time the petitioners had fled the country, and the questionnaires were never received by them. Because of their failure to return these questionnaires they were classed by the local board as delinquents. The word 'delinquent,' in the Selective Service Regulations, is applied to the registrant who is derelict in his duties so far as registering and reporting for duty is concerned, and the word 'desertion' is applied to the runaway registrant after having been inducted into the military service. In that sense the inquiry is whether these parties were delinquents, or whether they are soldiers, or deserters after having been inducted into the military service. No claim is made that the failure to return the questionnaires constituted an induction of these registrants into the military service, or constituted them soldiers; but the respondent does claim these registrants were inducted into the military service because of the post card order 'form 1014' mailed by the Adjutant General of the state of Louisiana to each of the petitioners on March 19, 1918, and contends that, though the parties did not actually receive the post card, order form 1014 notice, nevertheless by reason of the force and effect of the Selective Service Act and the regulations promulgated thereunder, they became and were involuntarily inducted into the military service, and became soldiers.

The Adjutant General of the state of Louisiana was acting under section 133, First S.S.R., when he issued his order of induction. The President, under date November 8, 1917, by proclamation, first promulgated the rules and regulations to carry into effect the provisions of the Selective Service Act. These were amended by the subsequent proclamation of September 16, 1918. A copy of section 133 is inserted next hereunder, showing the text of the section as it existed from November 8, 1917, until its amendment September 16, 1918; the amendment being shown by the underlined portions, the balance being the original text of the first proclamation:

Amendment Sept. 16, 1918: 'Section 133. Adjutant General to order delinquents to report; and notice to registrant.-- Upon receipt of form 1013 (p. 233), the Adjutant General of the state shall forthwith notify on form 1014 (sec. 286, p. 234) the persons named therein to report to him for instructions by mail, telegraph, or in person not later than a day and hour to be specified by such Adjutant General in such notice, which day and hour shall not be less than 10 days from the date of the notice. A copy of form 1014 (p. 234), showing the names of registrants under words 'Delinquent order number,' shall also be sent at the same time to the registrant's local board for its information; and the fact and date of mailing form 1014 shall be entered in column 5 of form 1013A (sec. 318, p. 270).

Actual Notice

'The day and hour shall be specified by the Adjutant General of the state as the day and hour from and after which such registrants shall be in the military service of the United States, unless, upon the registrant reporting as ordered, the Adjutant General shall stay or rescind such order into military service.

Amendment Sept. 16, 1918: Constructive Notice

'If the order into military service is not stayed or rescinded by the Adjutant General by a subsequent order in writing prior to the arrival of the day and hour so specified, then from and after the day and hour so specified such person shall be in the military service of the United States, and after the arrival of such day and hour the Adjutant General of the state has no power to stay or rescind such order; and either the entering of such date after the name of any such registrant on form 1013A, or the mailing to any such registrant of form 1014, shall constitute the giving of notice to such registrant that from and after the day and hour named in form 1014 he will be in the military service of the United States.'

It is apparent that the provisions of this section must be strictly complied with by the Adjutant General if the changed status and new duties imposed upon the citizen are to be fixed by a conclusive presumption of notice, rather than by actual notice. The only duty and obligation placed on the citizen by the act and the President's proclamation was to present himself on June 5, 1917, to the local board of his precinct for the purpose of enrollment. The proclamation further advised the country that, merely because some of its citizens had been called on to register, the ordinary avocations and pursuits were to be continued, and the usual course of life and business in the country was not, by reason of the registration, to be interfered with. Young men affected were especially warned not to surrender their occupations. Millions registered who were never called. The registrant was advised he was liable to be called, and if he willfully committed any act which interfered with any obligation, he might become subject to sections 37, 125, and 337 of the Criminal Code of the United States, but in no case did the act, proclamation, or regulation automatically change his status as a citizen.

In Ex parte Henry, 253 F. 209, Geiger, District Judge, Eastern District of Wisconsin, concerning the status of the registrant citizen, says 'That the law (Selective Service Law) contemplates continued existence of civil authority in all of the states until such time when it shall unmistakably be indicated that ordinary civil authority is superseded. And it is not incumbent upon the courts to ascribe to Congress an intention by this law to supersede a status which attached to an individual prior to the time of its attempted application to that individual. * * * I am unwilling to give the law that effect, because it ascribes to Congress an intention which it would have effectuated other than through legislation disclosing merely the ranges of ages and the additional direction that those within those ages should be liable to be drawn. Congress intended to recognize the continued existence of the civil authority of the states and the nation, and necessarily, to recognize the continued status which individuals might have...