Ex parte Stewart

• Decision Date: 30 September 1942
• Docket Number: No. 2341.,2341.
• Citation: 47 F. Supp. 410
• Court: U.S. District Court — Southern District of California
• Parties: Ex parte STEWART.

47 F. Supp. 410

Ex parte STEWART.

No. 2341.

District Court, S. D. California, Central Division.

September 30, 1942.

A. L. Wirin, of Los Angeles, Cal., for petitioner.

Leo V. Silverstein, U. S. Atty., and Howard V. Calverley, Asst. U. S. Atty., both of Los Angeles, Cal., for the Government.

YANKWICH, District Judge (after stating the facts as above).

Except where an appeal is authorized, the Selective Service Act makes the decision of the Board on classification final. 50 U.S.C.A.Appendix § 310(a); see: United States ex rel. Broker v. Baird, D.C.N. Y.1941, 39 F.Supp. 392, 394. In the trial of cases for violations of the Act, the Judges of this district have declined to submit to the jury the question of the correctness of the classification. But they have allowed inquiry to determine whether there was a hearing. And, in submitting the question of guilt or innocence to the jury, we have, invariably, informed them that they do not sit as a court of appeal. I have repeatedly given the following instruction:

"You are not sitting as a court of appeal to determine whether the draft board was right in its determination of the classification of the defendant. The actions of the draft board were gone into merely for the purpose of showing what opportunity was afforded to the defendant to present his proof for the classification he claimed. So that, from it and all the remainder of the evidence in the case, you may determine whether there was a refusal or neglect on the part of the defendant to do what the law required of him and whether, if you find beyond a reasonable doubt that there was such refusal or neglect, the defendant did so refuse or neglect knowingly."

Recently, the Third Circuit Court of Appeals has had the matter before it and has sustained the view embodied in the practice. United States v. Grieme, 3 Cir., 1942, 128 F.2d 811, 814.

Notwithstanding this, however, the district courts may entertain writs of habeas corpus questioning the classification. These are not in the nature of a trial of the merits of the classification. The object of the writ, in such cases, is merely to determine whether there was a hearing and not whether a proper determination was arrived at.

Precedents sustaining this view are available not only as to the present Selective Service Act, but also as to similar acts containing similar words of finality in effect during the Civil War and the first World War. See Stingle's Case, 1863, 23 Fed.Cas. page 107, No. 13458; Angelus v. Sullivan, 2 Cir., 1917, 246 F. 54; Arbitman v. Woodside, 4 Cir., 258 F. 441, 442; Ver Mehren v. Sirmyer, 8 Cir., 1929, 36 F.2d 876; Dick v. Tevlin, D.C.N.Y.1941, 37 F.Supp. 836; Petition of Soberman, D.C.N.Y.1941, 37 F. Supp. 522; United States ex rel. Filomio v. Powell, D.C.N.J.1941, 38 F.Supp. 183; Application of Greenberg, D.C.N.J.1941, 39 F. Supp. 13; United States ex rel. Errichetti v. Baird, D.C.N.Y.1941, 39 F.Supp. 388; United States ex rel. Pasciuto v. Baird, D.C.N. Y. 1941, 39 F.Supp. 411; United States ex rel. Ursitti v. Baird, D.C.N.Y.1941, 39 F. Supp. 872; Shimola v. Local Board, D.C. Ohio 1941, 40 F.Supp. 808; United States v. Grieme, 3 Cir., 1942, 128 F.2d 811, 814; Micheli v. Paullin, D.C.N.J.1942, 45 F. Supp. 687. See note 1940, 129 A.L.R. 1171, 1182 et seq.; note 30 Cal.Law Rev. (1942) 226. (See Note 1).¹

The need for a competent judicial authority to question the possible arbitrariness of a board is clearer, because of the fact that no questioning of the action of the Board is allowed in a prosecution resulting from disobedience of any of the orders issued by the Board. Were it otherwise, we would have an instance of finality of administrative action, which might leave a person at the mercy or caprice of a lay board, without the power to review its arbitrariness, abuses of authority or even lack of jurisdiction. Such a situation would be inconsistent with the doctrine of limited sovereignty, which is at the basis of our constitutional structure, and which postulates the existence in the individual of certain rights which he can assert against the sovereign power itself. And, perhaps, the most fundamental of these rights is the right of freedom of person, of which the individual cannot be deprived, even in war time, except through machinery which guarantees the fundamentals of due process. See, Yankwich, The Constitution and the Future, Ch. III.

Counsel for the Government, in effect, concede this. But they insist that the defendant should submit himself to induction first, and then question the classification. They insist that there is no precedent for the issuance of the writ against the marshal while he is holding him in custody under a complaint which charges him with failing to obey the lawful order of the Board. I cannot agree with this view.

Grave danger to orderly legal process would result from sanctioning it. For it is the function of the writ of habeas corpus to question the right of any agency of the Government to deprive a person of his liberty at any stage when a person is put under restraint by an authority, the legitimacy of which, or of the edicts of which, he challenges. Constitution of the United States, Art. I, § 9, Clause 2; 28 U.S.C.A. § 453; In re Neagle, 1890, 135 U.S. 1, 40-43, 10 S.Ct. 658, 34 L.Ed. 55; Mooney v. Holohan, 1935, 294 U.S. 103, 113, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Johnson v. Zerbst, 1938, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461; McNally v. Hill, 1934, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238; Bowen v. Johnston, 1939, 306 U.S. 19, 26, 59 S.Ct. 442, 83 L.Ed. 455; Walker v. Johnston, 1941, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Smith v. O'Grady, 1941, 312 U.S. 329, 331, 61 S.Ct. 572, 85 L.Ed. 859; Holiday v. Johnston, 1941, 313 U.S. 342, 350, 550, 61 S.Ct. 1015, 85 L.Ed. 1392; Waley v. Johnston, 1942, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Angelus v. Sullivan, 2 Cir., 1917, 246 F. 54, 64. Absent congressional action, the writ cannot be denied even in wartime. See Ex parte Milligan, 1866, 4 Wall. 2, 125, 18 L.Ed. 281; Ex parte Quirin et al., 63 S.Ct. 1, 87 L.Ed. ___, decided July 31, 1942.

The exact point in a proceeding when the writ may be resorted to is not strictly delimited. So long as there is a detention, as the consequence of the final decision of an administrative body, and all administrative remedies have been exhausted, the writ will lie. Resort to the writ, in selective service cases, does not call for induction as a condition precedent.

In United States ex rel. Filomio v. Powell, D.C.N.J.1941, 38 F.Supp. 183, the Government contended that when Filomio presented himself for induction, he waived the right to habeas corpus. It was urged that Filomio should subject himself to charges of desertion in order to be able to test his detention on habeas corpus. The Court rejected the contention, saying:

"The function of the writ of habeas corpus is to release a person unlawfully restrained of his liberty. Submission to that restraint under protest as in the case at bar obviously should not deprive one of that right. That the petitioner should subject himself to charges of desertion at the instance of the military authorities in order to preserve his inherent right to release from unlawful restraint under habeas corpus is a requirement far too exacting to be projected into this field of the law without direct authority therefor.

"We do not think that Filomio's conduct constitutes a waiver of civil release: He submitted with unequivocal protest; he refused to take the oath on induction, and we conclude that he could not have more peremptorily demonstrated his objection without forcibly resisting induction — this he was not required to do." United States ex rel. Filomio v. Powell, 38 Fed.Supp. 183, 186.

In Ver Mehren v. Sirmyer, 8th Cir.1929, 36 F.2d 876, the petitioner submitted to induction. He deserted, was tried by courtmartial, imprisoned and escaped his guard. The question arose whether the writ would lie. And the Court not only held that it did lie, but also ruled that the Board was wrong in drafting the petitioner. The Court said:

"In the case at bar the local draft board failed in a number of particulars to take the steps necessary to the induction of the petitioner into the military service. It utterly failed to mail him any notice that he had been found physically qualified for military service. It utterly failed to post notice of such fact on the classification list. Both acts were required by the Selective Service Regulations." Ver Mehren v. Sirmyer, 8 Cir., 36 F.2d 876, 881.

The Court thus went behind the courtmartial back to the Board, and having found that the Board had improperly inducted him, it wiped out the courtmartial conviction entirely. In other words, after the petitioner had actually been convicted by courtmartial, the Court proceeded to review, not his conviction, but the legality of the action of the Selective Service Board, in inducting him, in the first instance, saying:

"The induction of a civilian into military service is a grave step, fraught with grave consequences. It means, among other things, that he is subject to military law instead of to the ordinary common and statutory law. A new status is taken on; he becomes a soldier; new responsibilities are assumed; failure to strictly meet those responsibilities is followed by extreme punishment. All this is quite right and necessary, and meets no criticism at our hands. But what we emphasize is the necessity that all the steps prescribed by statute, and by regulations having the force of law, shall be strictly taken before it can be held that a person has been lawfully inducted into the military service. In the case at bar those steps were not taken.

"We therefore hold that petitioner was never lawfully inducted into the military service; that the court-martial had no jurisdiction to try him as a deserter; that its judgment was void; that the District Court erred in not granting...