United States v. Drum, 173.

• Decision Date: 04 December 1939
• Docket Number: No. 173.,173.
• Parties: UNITED STATES ex rel. BERGDOLL v. DRUM, Lieutenant General, et al.
• Court: U.S. Court of Appeals — Second Circuit

129 ALR 1165, 107 F.2d 897 (1939)

UNITED STATES ex rel. BERGDOLL v. DRUM, Lieutenant General, et al.

No. 173.

Circuit Court of Appeals, Second Circuit.

December 4, 1939.

Harry Weinberger, of New York City (Harold M. Weinberger, Chester A. Pearlman, and W. E. Aronberg, all of New York City, of counsel), for relator-appellant.

Mathias F. Correa, Asst. U. S. Atty., of New York City (John T. Cahill, U. S. Atty., and Walter H. Gahagan, Jr., Asst. U. S. Atty., both of New York City, on the brief), for respondents-appellees.

Before SWAN, CLARK, and PATTERSON, Circuit Judges.

CLARK, Circuit Judge.

Grover Cleveland Bergdoll appeals from the dismissal below of a writ of habeas corpus, sued but on his relation against the officers of the United States Army who are detaining him in military prison pursuant to a sentence imposed by a military court martial.

On June 15, 1917, Bergdoll, the relator, then twenty-three, registered with the draft authorities, as was required of all persons of draft age for the World War under the Selective Service Law of May 18, 1917, 40 Stat. 76, 50 U.S.C.A. § 226 note. On August 11, 1917, a post card was mailed to his home by Local Board 32, notifying him to appear for a physical examination on August 14. It is Bergdoll's claim that he was on a vacation trip when this notice was mailed. His mother received the post card, and communicated with the draft authorities in an attempt to secure a postponement. When Bergdoll failed to appear on the date set for his physical examination, Local Board 32 disclosed to the newspapers that Bergdoll was a delinquent. He claims that he became frightened by the tumult aroused; hence he fled and remained a fugitive until his apprehension by the military authorities in 1920. Local Board 32 was required by Section 133 of the Selective Service Regulations to inform the Pennsylvania Adjutant-General of Bergdoll's failure to report, but it did not do so.

About a year later, on July 15, 1918, the Local Board mailed to Bergdoll's address a questionnaire which Regulation 92 required him to answer within seven days. When no reply was forthcoming, the Local Board notified the Pennsylvania Adjutant-General, and on July 29, 1918, the Pennsylvania Adjutant-General's office mailed the notice (Form 1014) by which it is claimed Bergdoll was inducted into the army. The notice required him to report by August 8. He did not report. On August 13, the Pennsylvania Adjutant-General notified the Adjutant-General of the Army that Bergdoll was a delinquent and had been inducted into military service.

Relator was seized by the military authorities on January 7, 1920, and detained pending a court martial for desertion. He sued out a writ of habeas corpus, which was dismissed by Judge Learned Hand on March 5, 1920. The court martial then reached a judgment of conviction, and imposed upon him a five-year sentence in military prison. Shortly thereafter Bergdoll escaped, remaining at large until his recent voluntary return on May 25, 1939, when he was retaken by the military authorities. He now brings this second writ of habeas corpus, and appeals from its dismissal by the District Court.

When the relator sued out his first writ of habeas corpus in 1920, he raised and Judge Learned Hand disposed of many of the same issues now argued before us. All the remaining issues could have been, though they were not, argued in the prior proceeding, from which no appeal was taken. It is said that strict theories of res judicata have no application in habeas corpus cases. But among the matters which may be considered and even given controlling weight is a prior refusal to discharge the relator on a like application. It is within our power to dismiss this writ in reliance on the disposition made by Judge Hand of the earlier petition. Salinger v. Loisel, 265 U.S. 224, 231, 44 S.Ct. 519, 68 L.Ed. 989. Nevertheless, we have re-examined the contentions of the relator on their merits.

It is Bergdoll's claim that at no time was he lawfully inducted into the army. If he is correct, the army had no power to discipline him for desertion and he should be released from their custody and turned over to the civil authorities to answer for whatever crimes he has committed as a civilian failing to comply with the terms of the draft law.

The relator assigns four reasons for questioning the legality of his induction into the army: (1) The time set in the last notice mailed to him was less than ten days; (2) actual notice was not given; (3) the Adjutant-General never performed his proper functions; (4) the Selective Service Regulations, proclaimed by the Executive, exceed the authority conferred upon the President by the Selective Service Law. We take them up in order.

1. Failure to give ten days' notice. Section 131 of the Selective Service Regulations provides that the Local Boards shall furnish the Adjutant-General with the names of delinquents, by filling out and mailing to him Form 1013. Section 133 then recites:

"Upon receipt of Form 1013, the Adjutant-General of the State shall forthwith notify (Form 1014) the persons named therein to report to him for instructions by mail, telegraph or in person not later than a day and an hour, to be specified by such Adjutant-General in such notice, which day and hour shall not be less than ten days from the date of the 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.

"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."

Following the sending out of Form 1014, induction into the army normally would occur automatically. Form 1014 called for the specification of a day and hour, at least ten days after the date of the notice, after which, as it stated, "you shall be in the military service of the United States." When that day and hour arrived, a draftee was in the army, and properly within the jurisdiction of the military authorities.

Form 1014 was mailed to Bergdoll, and on it was stated an appointed day and hour as required. But in this, of all cases, in view of the notoriety it had already received, the day and hour set was less than ten days from the date of the notice. The post card was mailed July 29; it required Bergdoll to report on August 8. Section 8 of the Selective Service Regulations states that in computing time the date of mailing and Sundays shall be excluded. Applying the test of Section 8, ten days would not have expired by August 8. In this respect the requirement of S. S. R. 133 was not literally complied with.

The relator urges that this error vitiates the notice. He argues that he could only be...