United States v. Flint, 1040.

• Decision Date: 17 September 1943
• Docket Number: No. 1040.,1040.
• Citation: 54 F. Supp. 889
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES ex rel. ALTIERI v. FLINT, Commanding Officer.

54 F. Supp. 889

UNITED STATES ex rel. ALTIERI v. FLINT, Commanding Officer.

No. 1040.

District Court, D. Connecticut.

September 16, 1943.

On the Merits September 17, 1943.

Trotta, Fasano & Trotta, of New Haven, Conn., for relator.

Thomas J. Dodd, Jr., Sp. Asst. to the Atty. Gen., of Hartford, Conn., for respondent.

HINCKS, District Judge.

This matter is before the court upon the respondent's oral motion to dismiss the elator's petition and the writ of habeas corpus which under the direction of the court had issued pursuant thereto.

The petition alleges in substance that the relator had been erroneously classified by a Local Board as 1-A under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., and that consequent upon his induction he "was placed under the authority of the Commanding Officer at the Induction Center for the United States Army at New Haven, Conn., and is now subject to his orders and is by him unlawfully and illegally detained and restrained of his liberty."

The respondent's motion to dismiss is predicated upon the contention that the writ will not lie because the relator is not actually confined and restrained of his liberty and that the respondent is without custody and without power to produce the body in court. Indeed, the respondent in his return recites a lack of power to comply but states that "obedient, however, to the mandate of the writ of Habeas Corpus, the respondent herewith has requested said Altieri to appear before this court".

The motion, of course, will be deemed to admit only allegations of fact. And the allegation that the relator is subject to the respondent's orders and is by him illegally detained and restrained of his liberty is not an allegation of fact; it is a conclusion of law. However, for present purposes the court is not restricted to the bare allegations of fact as contained in the petition; it may also take into account such facts as are within the reach of judicial notice. Accordingly for present purposes I take into account Army Regulations No. 615-500 issued by the War Department September 1, 1942.

These regulations provide (Sec. 13(e) (4) that upon induction the inductees "will then be informed that they are now members of the army of the United States and given an explanation of their obligation and privileges", and that (Sec. 16) those "who so desire will be given the opportunity, immediately after induction, to return to their residence to arrange personal, financial, and business affairs. This will be accomplished by release from active service, transfer to the Enlisted Reserve Corps and subsequent call to active service." And the same section provides that an order should be prepared, transferring such inductees to the Enlisted Reserve Corps, ordering them to proceed to the situs of their respective Local Boards, and calling them to active service on a certain date a fortnight later (with a two-day leeway to obviate Sunday travel). The regulations further disclose that the resulting travel shall be at public expense and that the order just referred to shall be explained to the inductees by "the Commanding Officer of a recruiting and induction station or other officer appointed by him", who is also directed to "appoint one member of the group an acting corporal to be in charge of the group" while en route.

At least for purposes of the pending motion I may assume that the procedure prescribed above has been followed and that accordingly the relator has been transferred to the Enlisted Reserve and is subject to an order issued by the respondent herein to report at a reception center for active duty at a time certain after travel "in charge of an acting corporal" appointed by the respondent, and that subject to the foregoing the relator is completely at liberty.

Under the law as laid down in this Circuit, the court may not consider the validity of a classification made by a Local Board before the "final acceptance" of the registrant by the army. United States v. Kauten, 2 Cir., 133 F.2d 703, 706. This holding is based upon the view that an earlier interposition of the court would disturb the orderly conduct of business confided to the Local Board as an administrative agency. But the opinion in this case goes on to say:

"Under this rule there would seem to have been no good reason for interrupting proceedings leading to induction until some substantial physical restraint occurred. Then the writ of habeas corpus is sufficient to remedy any irregularities of Draft Boards and to satisfy all reasonable scruples on the part of inductees. Moreover, it is the practice of the Army to grant a furlough of seven days after a registrant is formally inducted before he is subjected to military training. This gives him time to apply for a writ of habeas corpus without disturbing the selective service machinery, if he thinks that his rights as a conscientious objector have been infringed."

Doubtless the court in its reference to the seven days' furlough had in mind the regulation specified above whereby the inductee is released to the Enlisted Reserve for a period now extended to fourteen days.

I can only construe the passage quoted as indicating an appellate view, though to be sure a dictum for purposes of the precise case then before the court, that the inductee even while released to the Reserve is subject to sufficient restraint to support the issue of a writ of habeas corpus. For throughout his "furlough" the inductee is subject to the Articles of War and Army orders. 50 U.S.C.A.Appendix, § 311. Cf. United States v. Bowles, 3 Cir., 131 F.2d 818. Though for the time being he is physically at large, he is subject to military call and hence subject to a restraint upon the otherwise unrestricted course of conduct open to him. Obviously, such liberty as he enjoys by the grace of military authorities is of substantially narrower dimensions than the liberty to which he is entitled as of right under the civil law. And so I hold that his petition is not defective in that it fails to show a restraint of liberty sufficient to support the writ.

I likewise hold that the Commanding Officer of the Induction Center, who is physically within the jurisdiction of this court, is a proper respondent to the writ. For he it is who accomplished the relator's induction with its consequent curtailment of his liberty and who, pursuant to the regulations of the military establishment, has ordered him to active duty and travel under military supervision at a specified future date. His order, tested by the plenitude of the underlying military authority therefor, is in effect a continuing and effective assertion of custody,—a custody loose at the moment but a custody which may at any time be made as close as the military establishment by further order or regulation shall direct.

If, as the respondent apparently under military instructions urges, I should dismiss the writ and the relator, still obedient to the obligations of citizenship, should travel as ordered to the reception center, in this case at Camp Devens in the District of Massachusetts, what would be gained? Under the doctrine of United States ex rel. Phillips v. Downer, 2 Cir., 135 F.2d 521, and United States v. Grieme, 3 Cir., 128 F.2d 811, the relator would be entitled to his writ there. The issues there would be the issues already framed here. And the only effect would be to make it necessary for the Camp Commander to produce the relator at the seat of court in Boston (which I should not suppose would be either convenient or conducive to the morale of his Camp) and for all the witnesses, including associates of the relator and the personnel of the Local Board in New Haven, to attend court in Boston. If, as held in the Kauten case, a proper regard for the administrative exigencies of the Selective Service System precludes an issuance of the writ before induction, a similar regard for military administration as also for the convenience of parties and witnesses suggests that the writ when sought after induction but prior to active service in some distant scene should then be entertained.

Indeed, I am perplexed to know why the military authorities, unless motivated by a legalistic attitude, should take the position that the writ here is premature. On argument they asserted their position but were unable or unwilling to explain its reasonableness. Perhaps their position is attributable to the thought that once in Massachusetts the relator, at least until the Supreme Court speaks, Cf. Bowles v. United States, 319 U.S. 33, 63 S.Ct. 912, 87 L.Ed. 1194, will be beyond the reach of the liberal doctrine of the Downer and Grieme cases, and, instead, subject to the more rigorous holding of United States v. Smith, D.C., 47 F.Supp. 607. But if I am confronted with a legal stratagem growing out of this conflict of decisions, I must of course apply the law as laid down by the appellate court in this circuit.

The respondent cites Judge Smith's decision in United States ex rel. Gascone v. Cottan, in this court, handed down in January, 1943, wherein it was held, in effect, that the writ would not lie until the relator was in active military service. But since then the Kaut...