United States v. Mellis

• Decision Date: 21 February 1945
• Docket Number: No. 86.,86.
• Citation: 59 F. Supp. 682
• Court: U.S. District Court — Middle District of North Carolina
• Parties: UNITED STATES ex rel. SELDNER v. MELLIS.

59 F. Supp. 682

UNITED STATES ex rel. SELDNER v. MELLIS.

No. 86.

District Court, M. D. North Carolina, Durham Division.

February 21, 1945.

E. M. Whitman, of Winston Salem, N. C., for plaintiff.

Carlisle W. Higgins, U. S. Atty., of Greensboro, N. C., for defendant.

HAYES, District Judge.

The relator in this case has sought a writ of habeas corpus to test the legality of his imprisonment in the custody of the respondent for violating the regulations of the army, and relies entirely on the case of Billings v. Truesdale, 321 U.S. 542, 64 S.Ct. 737, and alleges that he was never inducted into the armed services of the United States within the meaning of that case.

The facts in this case, however, clearly show that the Billings case has no application. The relator did refuse to take the oath but the army authorities explained to him that it was not essential and that notwithstanding his refusal to take the oath, he was in the army and would be considered as such. Thereupon the relator made application for insurance and applied for benefits for his dependent mother, wore the uniform and in all respects did everything like any other soldier from April 6, 1943, until the day he was brought before this court on this writ, with the exception that on May 10, 1943, he violated some order of his commanding officer and was court-martialed on May 18, 1943, and given a sentence of six months, which was suspended after he had served two months of the time.

On October 28, 1944, he disobeyed an order of his commanding officer for which he was tried and given a sentence of three years at Fort Leavenworth.

While it is true that the relator stated his conscientious objections to the Chairman of the Local Draft Board and to the various commanding officers of the various camps and Forts where he was stationed, nevertheless he obeyed orders as a member of the armed forces within the meaning of the law which took him out of the status as a civilian and placed him under the jurisdiction of the army. It has been held that the selectee is subject to the orders of the Selective Service Board until he has been inducted into the army, and for a violation of its orders must be tried in the District Court of the United States, but after being inducted into the army he is subject to military law. Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346; Billings v. Truesdale, 321 U.S. 542, 64 S.Ct. 737. The difficulty seems to arise in determining the exact line of division between the civilian and military authority; when a man ceases to be a civilian and becomes a soldier in the army. It is not difficult to understand the Billings case and determine why he did not become a member of the army, because he not only refused to take the oath but refused to do anything else that was required of him, and immediately challenged the jurisdiction of the military authority over him. Nor is it difficult, in my opinion, to decide when the relator in this case ceased to be a civilian and was inducted into the army. Although he refused to take the oath the relator did everything required of him; he obeyed all orders and conducted himself like all other soldiers, although he did signify his unwillingness to bear arms and refused to do so. The fact that he accepted the status as a soldier from the 6th day of April, 1943, to the 28th day of October, 1944, during all of which time he was in the army except two weeks when he was out on furlough, shows beyond a shadow of a doubt that he recognized himself to be in the army, that he was inducted into it, and his...