In re Herman, 91.
| Decision Date | 18 September 1944 |
| Docket Number | No. 91.,91. |
| Citation | 56 F. Supp. 733 |
| Parties | In re HERMAN. |
| Court | U.S. District Court — Northern District of Texas |
Louis Herman, of New York City, in pro. per.
Joe H. Jones, Asst. U. S. Atty., and Captain John H. Haley, Jr., J. A. G. D., Headquarters Eighth Service Command, both of Dallas, Tex., for United States.
On March 27, 1944, in the case of Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, the Supreme Court, in a carefully considered opinion, held that one is not inducted into the United States Army until he has taken the oath. The regulations made in pursuance of the Act of the Congress, as well as the precise wording of the Act itself, support that decision.
By Sec. 11 of the Selective Training and Service Act of 1940, 54 Stat. 894, 50 U.S.C.A.Appendix § 311, the "actual induction" is shown to be the administration of this oath. The War Department regulations in force when the petitioner was called, recognizes the accuracy of that statement by providing that men successfully passing the examination will be immediately inducted into the Army, and the induction will be performed by an officer in a short, dignified ceremony in which the oath is administered. They will then be informed that they are members of the United States Army. The regulation further provides that, "In the event of refusal to take an oath (or affirmation) the individual will not be required to receive it, but will be informed that such action by him does not alter, in any respect, his obligation to the United States."
The selective service of persons who are to make up the Armed Forces of the United States, divides the jurisdiction between civil and military authorities. This division and recognition is made in the Act. It provides that no man shall be inducted for training and service unless he is acceptable to the Armed Services. And, it further provides that the civil authorities retain jurisdiction over him until he is actually inducted.
If the person does not conform to the orders issued by the authorities of the Selective Service, he is subject to the civil penalties which are severe in both fine and imprisonment. Thus, it seems to be clear that a refusal to submit to induction —as above outlined — is a violation of an Act, rather than of a military order.
Sec. 11, mentioned above, withholds from military courts, jurisdiction over those who offend against the act.
The nice shadings of the reasoning will be more readily appreciated by a study of Bowles v. United States, 319 U.S. 33, 63 S.Ct. 912, 87 L.Ed. 1194, United States v. Collura, 2 Cir., 139 F.2d 345, and Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346.
A recent opinion by Judge Yankwich of California, in Ex parte Yost, D.C., 55 F. Supp. 768, may also be of assistance to the student.
Congress having drawn the line between the civil and military jurisdiction, it is the duty of the courts to observe and respect that division of authority.
A patient and rather exhaustive presentment of testimony leads irrefutably to the conclusion that this petitioner has never been inducted into the United States Army, as provided by the Act of the Congress.
Upon his liberation from a civil prison sentence imposed in the United States District Court of Los Angeles, California, for refusal to abide by orders looking to his induction, he was again ordered by his Board to report to the Army. That he did, and was examined. He was accepted. He refused to sign or to take the oath, notwithstanding which he was placed in the Army and taken from California to Texas, and, there, half-heartedly, participated in soldier activities. He objected to and did not accept any pay. He at first refused to buy any bonds, but, subsequently, upon pressure, did attempt to purchase a $25 bond, which purchase was never completed. Upon the same sort of pressure, he reluctantly signed an insurance provision and an allotment. But, in...
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DeRozario v. COMMANDING OFFICER, ARMED FORCES EX. & IND. S.
...145 F.2d 758 (5th Cir. 1944); Enge v. Clark, 144 F.2d 638 (9th Cir. 1944); Berman v. Clark, 144 F.2d 640 (9th Cir. 1944); In re Herman, 56 F.Supp. 733 (N.D.Tex. 1944); H. R. Rep. No. 36, 79th Cong., 1st Sess. 4-5 (1945). But see Ex parte Fabiani, 105 F.Supp. 139 Under the peculiar circumsta......
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United States ex rel. Norris v. Norman, 69 C 91.
...a member of the armed forces while performing duties and accepting pay under conditions when he had no real alternative. Cf. In re Herman, 56 F.Supp. 733 (N.D. Tex.); United States v. King, 11 USCMA 19, 28 CMR 243 (Ct.Mil.App.) both of which recognize that the doctrine of ratification or co......
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Miller v. COMMANDING OFFICER, CAMP BOWIE, TEX., Civ. A. No. 1264.
...D.C., 53 F.Supp. 582. The cases of Billings v. Truesdell, 321 U. S. 542, 64 S.Ct. 737, Ex parte Yost, D.C., 55 F.Supp. 768, and In re Herman, D.C., 56 F.Supp. 733, are in harmony with this idea, as each showed actual The oath is not mentioned by the Congress. The oath is a regulation of the......