Local Draft Board No. 1 v. Connors

• Decision Date: 13 December 1941
• Docket Number: No. 9937.,9937.
• Parties: LOCAL DRAFT BOARD NO. 1 OF SILVER BOW COUNTY, MONT., et al. v. CONNORS.
• Court: U.S. Court of Appeals — Ninth Circuit

124 F.2d 388 (1941)

LOCAL DRAFT BOARD NO. 1 OF SILVER BOW COUNTY, MONT., et al. v. CONNORS.

No. 9937.

Circuit Court of Appeals, Ninth Circuit.

December 13, 1941.

John B. Tansil, U. S. Atty., and R. Lewis Brown and W. D. Murray, Asst. U. S. Attys., all of Butte, Mont., Francis M. Shea, Asst. Atty. Gen., Sidney J. Kaplan, Sp. Asst. to Atty. Gen., and Martin Norr, of Washington, D. C., for appellants.

Harlow Pease and John K. Claxton, both of Butte, Mont., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

This matter is before us upon a motion entitled "Motion to suspend preliminary injunction pending appeal, or in the alternative to set appeal down for immediate hearing and to dispense with printing of the record."

The preliminary injunction appealed from and sought to be affected by this motion was granted and issued by the Judge of the United States District Court for the District of Montana in the following circumstances:

Peter Larry Connors, as plaintiff, filed his complaint in the referred to court in which he alleges or admits that he was registered and filed a questionnaire in accordance with the provisions of the Selective Training and Service Act of 1940, c. 720, 54 Stat. 885, 50 U.S.C.A. Appendix, § 301 et seq., in which questionnaire, "he expressly claimed the right to a deferred classification by reason of certain facts therein stated, viz.: the occupation of a college student"; that he is in all respects subject to induction into the armed forces of the United States under said Act except for a claim for deferment under the discretionary powers of the Local Board, hereinafter referred to as the "Board", and that he will be inducted into said forces unless the Board and the members thereof are restrained from proceeding with such induction.

He alleges that at all pertiment times he was and now is "* * * a college student at * * * and by reason thereof was and is entitled to have the discretion of the said defendant board exercised by the consideration of his claim for deferred classification * * *"; that he was and is, under the due process law of the land, entitled to and that it was the duty of the board to accord him a full and fair hearing on the merits in the matter of said claim for deferment; that the board refused to give him a hearing upon his said claim, and denied said claim "without hearing or trial of any kind * * * arbitrarily and capriciously and without the exercise of any discretion whatever", and ordered him "to appear for induction into the military service at ten o'clock on Monday, August 18, 1941 at Butte Montana". It is further alleged that the plaintiff caused an appeal to be taken to the State Board of Appeal and that he appealed and protested to Col. E. M. Birely,¹ Selective Service Headquarters at Helena, Montana, and that his appeal to the board "was not sustained nor any action taken to modify or annul the action of the draft board and that Col. Birely refused either to grant a hearing or to stay proceedings or otherwise act in the premises."

It is prayed that the court vacate and annul the orders, decisions and directions of the board and that the court order the board to cease and desist from enforcing its orders regarding plaintiff's proposed induction into the armed forces of the nation and order general relief and costs.

In granting the preliminary injunction the trial court stated that it did not pass upon the merits of plaintiff's claim although the order followed the taking of evidence ranging in scope over the whole factual situation. The court stated that it was leaving the merits "for consideration and decision at a later day when all of the facts and circumstances surrounding and leading to the making of the orders complained of have been developed and presented to the Court". The restraint on the Board is by the terms of the order (we quote from it) "until the further order of this Court, or until final judgment in this action, whichever shall first be made".

The injuction, therefore, is interlocutory in character and preserves the status quo pending the determination at a later trial of plaintiff's claim that he has been denied due process in the Board's proceedings.

Mindful of the court's wide discretion in such a situation, it is clear that the restraint should not be disturbed at this juncture if the complaint states a cause of action within the jurisdiction of the District Court.

In plan the Selective Training and Service Act of 1940 is patterned after the Draft Act of 1917, Selective Draft Act of 1917, c. 15, 40 Stat. 76, 50 U.S.C.A. Appendix, § 201 et seq. The latter act was the subject of extensive litigation, leaving for our guidance several well considered and ably written opinions. These opinions so well cover the theory, the history and the legal basis of military service acts that we are spared the necessity of writing originally thereon. See 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.

United States ex rel. Troiani v. Heyburn, D. C., 245 F. 360, 361, was a case in which the moving party had been inducted into the military service. Although the subject matter under consideration arose by way of a petition for the writ of habeas corpus, the following passage from the Court's opinion is concise and pertinent:

"The national defense is an absolute necessity of our existence. The people of the United States have prepared themselves for such a situation by confiding to Congress the power to declare war and to support and maintain armies for the national defense. This is necessarily a master power, to be exercised without the hampering interference of any one. The call of men to the colors is within, and necessarily within, the exercise of this power. To whom the call goes out, and who is to make an answering response, are matters germane to, and indeed necessarily involved in, the exercise of the war-making power. Questions which necessarily arise, or may be expected to arise, must be determined in some way and by some tribunal. The war-making power may therefore provide the required system and constitute the needed tribunals."

It is within the congressional power to call everyone to the colors. No one under the jurisdiction of the sovereign nation, whatever his or her status, is exempt except by the grace of the government. In enacting the Selective Service measure Congress made specific exemptions, and, as well, prescribed certain classifications within which exemptions and deferments may be granted. It provided, section 304, for the selection of men "in an impartial manner, under such rules and regulations as the President may prescribe, from the men who are liable for such training and service and who at the time of selection are registered and classified but not deferred or exempted" under Section 305 of the Act. The Regulations provide for classification (Regs. § XVIII), for an appearance before the Local Board (Regs. § XXVI), for an appeal to the Board of Appeal (Regs. § XXVII) and for an appeal in certain limited circumstances to the President (Regs. § XXVIII). Nowhere in the Act or in other statute is the District Court given specific authority over or concerning it. The Board's decision, under the limited appeal provided to a special Appeal Board and to the President is by the Act expressly made final.²

As has already been stated the gravamen of plaintiff's complaint is that he has been denied due process of law in that the Board has ordered him into the service without affording him the benefit of the Board's discretion in a consideration of the petition for deferment made to the Board by him and upon his behalf.

In selecting their approach to the solution of problems with the far reaching effect that the decision in this appeal may have, it has often taxed the good judgment of the courts to determine whether to place their decisions upon the narrow ground of lack of the statement of facts sufficient to constitute a cause of action, assuming for the point only that the pleader's theory of the case brings it within the court's jurisdiction, or upon the broader ground that the trial court was without jurisdiction of the subject matter where both of these issues exist.

If we take the latter course we shall necessarily decide whether or not the District Court has any jurisdiction whatever in a case arising under the Selective Service Act other than by way of habeas corpus.³ We think it better not to do this where as in this case the broader question has not been satisfactorily explored in argument.

For these reasons we have first considered the narrower question and as will be seen presently have concluded that no cause of action has been stated in the complaint. Now that we are acquainted with the Selective Service Act generally and with plaintiff's requested relief together with the basis therefor, it will be necessary to examine the Act more closely for the purpose of understanding the scope of the grantable deferments under which plaintiff claims his right.

The Act provides for deferment "in no event later than July 1, 1941" of any person who, during the year 1940, entered upon attendance for the academic year 1940-1941 at any college or university which grants a degree in arts or science, etc. § 305 (f). It is apparent therefore that, since the complaint in this cause was filed August 16, 1941, or a full month and a half after deferment on the basis of being a college student could be effective, this provision is inapplicable and it will not be adverted to again.

The Act provides that "The President is authorized, under such rules and regulations as he may prescribe, to provide for the deferment from training and service * * * of those men whose employment in industry, agriculture, or other occupations or employment, or whose activity in other endeavors, is found in accordance with section 10(a) (2)(310(a) (...