United States v. Stephens

• Decision Date: 13 November 1917
• Docket Number: 1.
• Citation: 245 F. 956
• Parties: UNITED STATES v. STEPHENS.
• Court: U.S. District Court — District of Delaware

245 F. 956

UNITED STATES v. STEPHENS.

No. 1.

United States District Court, D. Delaware.

November 13, 1917

Charles F. Curley, U.S. Atty., of Wilmington, Del.

Henry Budd, of Philadelphia, Pa., for defendant.

BRADFORD District Judge.

An indictment has been found against Donald Stephens charging him with violation of the act of Congress of May 18, 1917 entitled 'An act to authorize the President to increase temporarily the Military Establishment of the United States ' The defendant has demurred to the indictment, and its sufficiency is now to be determined. Section 5 of the above act, so far as pertinent to this case, is as follows:

'Sec. 5. That all male persons between the ages of twenty-one and thirty, both inclusive, shall be subject to registration in accordance with regulations to be prescribed by the President; and upon proclamation by the President or other public notice given by him or by his direction stating the time and place of such registration it shall be the duty of all persons of the designated ages, except officers and enlisted men of the regular army, the navy, and the national guard and naval militia while in the service of the United States, to present themselves for and submit to registration under the provisions of this act; and every such person shall be deemed to have notice of the requirements of this act upon the publication of said proclamation or other notice as aforesaid given by the President or by his direction; and any person who shall wilfully fail or refuse to present himself for registration or to submit thereto as herein provided, shall be guilty of a misdemeanor and shall, upon conviction in the district court of the United States having jurisdiction thereof, be punished by imprisonment for not more than one year, and shall thereupon be duly registered: * * * Provided further, that persons shall be subject to registration as herein provided who shall have attained their twenty-first birthday and who shall not have attained their thirty-first birthday on or before the day set for the registration, and all persons so registered shall be and remain subject to draft into the forces hereby authorized, unless exempted or excused therefrom as in this act provided.'

Pursuant to the above section and on the day of the approval of the act the President made proclamation to all persons subject to registration in the several states and District of Columbia, that the registration would be had June 5, 1917, at the registration place in the precinct wherein they had their permanent homes, and defining the class of persons required to register.

The indictment alleges in substance that the defendant June 5, 1917, being included in the class of persons subject to registration under the act, was required by the President's proclamation to present himself for and submit to such registration at the proper registration place in the district of Delaware, on the day and between the hours designated in the proclamation, and unlawfully and wilfully failed and refused so to present himself for and submit to registration. The grounds of demurrer are in substance as follows: (1) That the act of May 18, 1917, is in violation of section 8 of article I of the Constitution. (2) That it is in violation of article I of the amendments to the Constitution. (3) That it is in violation of section 1 of article III of the Constitution. (4) That, in so far as it provides for the assignment of drafted persons to service other than military, it is in violation of article XIII of the amendments to the Constitution. (5) That in other respects it is in violation of the Constitution.

Section 8 of article I so far as material to the consideration of this case is as follows:

'Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to * * * provide for the common defence and general welfare of the United States; * * * to declare war; * * * to raise and support armies; * * * to provide and maintain a navy; * * * to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; to provide for organizing, arming and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; * * * to make all laws which shall be necessary and proper for carrying into execution the foregoing powers,' etc.

In section 57 of the act of Congress of June 3, 1916, entitled 'An act for making further and more effectual provision for the national defense, and for other purposes,' 39 Stat. 166, 197 (Comp. St. 1916, Sec. 3041), it was provided:

'The militia of the United States shall consist of all able-bodied male citizens of the United States and all other able-bodied males who have or shall have declared their intention to become citizens of the United States, who shall be more than eighteen years of age and, except as hereinafter provided, not more than forty-five years of age, and said militia shall be divided into three classes, the national guard, the naval militia, and the unorganized militia.'

It is urged on the part of the defendant that Congress possesses only such powers as have been expressly or by fair implication conferred upon it by the Constitution; that the 'militia of the United States' includes all able-bodied citizens of the United States and all other able-bodied males who have or shall have declared their intention to become citizens of the United States, who shall be older than the minimum and younger than the maximum ages above specified, subject to exceptions not pertinent in this connection; that the only purposes for which Congress is empowered to provide for calling forth the militia are to 'execute the laws of the Union,' to 'suppress insurrections,' and to 'repel invasions'; and that the war in connection with which the act of May 18, 1917, provides for a registration, contemplates military service in foreign fields, and not merely the accomplishment of the ends for which the militia under the terms of the Constitution can be compulsorily called out. It is not denied, but conceded, that the regular army as constituting part of the permanent military establishment of the United States may be compelled to render military service abroad. But it is asserted that this obligation results from the fact that the soldiers of the regular army in their contract of enlistment consent to such service, and that without such consent they could not constitutionally be sent abroad to take part in the war. In other words, it is contended that, however exigent the demand for military operations on a large scale in Europe, however inadequate the regular army to conduct those operations, the government is powerless in this dire struggle between democracy and a powerful autocracy practicing the atrocities of barbarism and threatening the freedom of the world to compel any one not belonging to the permanent military forces of the nation, to fight for this country in the only place where, perchance, his efforts may be of avail. Were such the case, the American nation would present a pitiable spectacle of emasculated sovereignty. But I regard the contention as utterly unsound. The fundamental right of self-preservation forbids any construction of the Constitution so limiting powers of Congress essential to continued national existence. In the preamble to the Constitution it is declared that the people of the United States 'do ordain and establish this Constitution' in order to 'provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.' As means to the attainment of those beneficent ends the Constitution empowers Congress to declare war, to raise and support armies, to provide and maintain a navy, and, in addition to the provisions touching the militia, to enact all laws necessary and proper for carrying these powers into execution. These broad powers, essential to the welfare and life of the nation, are not, I think, restricted or impaired in any manner by the provisions touching the militia.

The power of Congress to raise armies, like the power to declare war, is unconditional, unqualified and absolute; and Congress is the exclusive judge of the necessity for the exercise of the power and of the means and manner prescribed by it for its exercise. The constitutional provisions relating to the militia manifestly apply to state militia in contradistinction to militia of the United States. Otherwise it would be difficult to understand the provision 'reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. ' Further, the clause providing for 'calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions' is predicated upon the organization of the militia, without which the ends intended could not be attained. The provisions of the Constitution relating to the militia having application only to the organized state militia, it does not follow, from the lack of power in Congress to send such militia to fight in a foreign country, that Congress has not power to organize the militia of the United States and send it to any part of the globe deemed best for the conduct of military operations. There is no necessary or logical connection between the two propositions. The militia of the United States, as defined in the act of June 3, 1916, is...