United States v. Sugar

• Decision Date: 10 July 1917
• Docket Number: 5875.
• Citation: 243 F. 423
• Parties: UNITED STATES v. SUGAR et al.
• Court: U.S. District Court — Eastern District of Michigan

243 F. 423

UNITED STATES v. SUGAR et al.

No. 5875.

United States District Court, E.D. Michigan, Southern Division.

July 10, 1917

[Copyrighted Material Omitted]

John E Kinnane, U.S. Dist. Atty., and J. Edward Bland, Asst. U.S Dist. Atty., both of Detroit, Mich.

Maurice Sugar, of Detroit, Mich., pro se.

Joseph B. Beckenstein, of Detroit, Mich., for defendants.

TUTTLE District Judge.

Defendants have moved to quash the indictment herein, alleging that it charges in a single count two distinct offenses, that the acts of the defendants recited do not constitute an offense against the United States, and that the Conscription Act, on which such indictment is based, is unconstitutional for various reasons stated.

The statute in question is the act of Congress known as the Conscription Act, which was approved on May 18, 1917. The purpose of the act is the raising of national armies for the prosecution of the war against Germany, declared by Congress a few weeks before the enactment of such act, and for that purpose it provides for the registration of all male persons between the ages of 21 and 30 years, inclusive, on a day and in the manner to be fixed by the President; for the exemption from its provisions of certain classes of persons named therein; for the establishment of exemption boards, to be appointed by the President and to have charge of the application of the exemptions referred to; for the mustering into the national forces of the persons conscripted by the act; and for the making of rules and regulations by the President governing the execution of the provisions relative to such registration and exemptions and the other provisions of the act. Section 5 of the act provides that:

'Any person who shall willfully fail or refuse to present himself for registration or to submit thereto as herein provided, shall be guilty of a misdemeanor meanor and shall, upon conviction by a District Court of the United States having jurisdiction thereof, be punished by imprisonment for not more than one year.'

Section 6 provides, among other things, that:

Any person who 'evades or aids another to evade the requirements of this act or of said regulations, or who, in any manner, shall fail or neglect fully to perform any duty required of him in the execution of this act, shall, if not subject to military law, be guilty of a misdemeanor, and upon conviction in the District Court of the United States having jurisdiction thereof, be punished by imprisonment for not more than one year.'

This indictment charges the defendants with having unlawfully conspired to violate the provisions of the act just quoted, by conspiring to unlawfully aid and abet, counsel, command, induce, and procure other persons to violate said provisions, as hereinafter more fully set forth. The indictment will be found in full at the end of this opinion. See page 439.

The claim that the indictment charges in a single count two distinct offenses, to wit, one a conspiracy to commit an offense against the United States, and the other a conspiracy to defraud the United States, cannot, in my opinion, be sustained. The indictment in charging the offense in general terms follows the language of the statute defining conspiracy (section 37 of the Criminal Code); but, in stating the acts alleged to constitute the crime charged, the indictment makes it quite clear that the defendants are charged with conspiracy to commit an offense against the United States, and not to defraud the United States. I am satisfied that the words in the indictment, 'to defraud the United States,' are mere surplusage and should be disregarded. Davey v. United States, 208 F. 237, 125 C.C.A. 437.

Defendants contend that the object of the conspiracy alleged in the indictment does not constitute any offense against the United States. The indictment charges in substance that the defendants named unlawfully conspired to commit an offense against the United States, in that they so conspired to 'unlawfully and willfully aid and abet, counsel, command, induce, and procure ' certain persons to violate the provisions of said Conscription Act by failing and refusing to register as required by said act and to evade the requirements of said act, and that in pursuance of such conspiracy and to effect the object thereof the defendants unlawfully and feloniously distributed and circulated copies of a certain newspaper containing articles and editorials inciting and urging its readers to refuse to register as required by said act.

That the willful refusal or failure to register as required by the Conscription Act is an offense against the United States cannot, of course, be disputed. Section 332 of the Criminal Code provides that:

'Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.'

If, therefore, these defendants aided, abetted, counseled, commanded, induced, or procured the actual violation of said Conscription Act, they themselves thereby violated said act and committed an offense against the United States; and if they unlawfully conspired to aid, abet, counsel, command, induce, or procure the violation of said act, and one or more of them did any act to effect the object of such conspiracy, each of them would be guilty of an unlawful conspiracy to commit an offense against the United States, in violation of section 37 of the Criminal Code, which provides that:

'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both.'

If this indictment charged the defendants with aiding, abetting, counseling, commanding, inducing, or procuring the violation of the Conscription Act, it would be necessary that it should allege specifically that said act had been actually violated. United States v. Mills, 7 Pet. 138, 8 L.Ed. 636.

The indictment, however, does not charge defendants either with having actually violated the Conscription Act or with having aided, abetted, counseled, commanded, induced, or procured such violation. It charges an entirely distinct offense, namely, an unlawful conspiracy to violate said act by the means and in the manner already pointed out. It will be noted that this conspiracy statute does not make the actual commission of the crime contemplated by the conspirators an essential element of the conspiracy. It is necessary only to prove that after such conspiracy any one of the conspirators did some act 'to effect the object of the conspiracy' in order to render such conspiracy a violation of this statute. As was said in United States v. Rogers (D.C.) 226 F. 512:

'The commission of the crime of conspiracy is not complete until one or more of the conspirators does some act or acts in execution or furtherance of the conspiracy. These acts are called 'overt acts,' and may be innocent acts in and of themselves.'

It is, I think, quite clear that the alleged acts of the defendants in circulating the literature referred to were acts in furtherance of, and done for the purpose of effecting, the object of their conspiracy. It therefore follows that the indictment properly charges a conspiracy to commit an offense against the United States, which, of course, is itself an offense against the United States.

Defendants attack the constitutionality of the Conscription Act on various grounds, which may be conveniently grouped as follows:

(1) That the act is contrary to the Thirteenth Amendment to the United States Constitution, which provides that:

'Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.'

(2) That the act constitutes class legislation.

(3) That the act deprives the courts of the United States of the power to pass upon the exemptions provided for in said act.

(4) That the act vests in the President legislative and judicial powers.

(5) That the act is not an exercise of any power conferred upon Congress by the Constitution, and is therefore void.

(6) That the act calls out the militia for a purpose not authorized by the Constitution.

These contentions will be considered in the order named, and in approaching a consideration of the questions raised it is to be borne in mind that the act must be presumed to be constitutional unless it is clearly shown to be otherwise. Buttfield v. Stranahan, 192 U.S. 470, 24 Sup.Ct. 349, 48 L.Ed. 525. In the language of the Supreme Court in Fairbank v. United States, 181 U.S. 283, 21 Sup.Ct. 648, 45 L.Ed. 862:

'The constitutionality of an act of Congress is a matter always requiring the most careful consideration. The presumptions are in favor of constitutionality, and before a court is justified in holding that the legislative power has been exercised beyond the limits granted, or in conflict with restrictions imposed by the fundamental law, the excess or conflict should be clear.'

(1) The contention that compulsory military service constitutes involuntary servitude, within the meaning of the constitutional provision already quoted, cannot, in my opinion, be sustained. Considering the well-known historical circumstances surrounding the enactment of such provision, it seems to me quite clear that it has reference to slavery, or enforced labor, as between private individuals, and was not intended to prevent, or to apply to,...