Warren v. United States
| Decision Date | 31 October 1949 |
| Docket Number | No. 3921.,3921. |
| Citation | 177 F.2d 596 |
| Parties | WARREN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Harrop A. Freeman, Ithaca, N. Y. (Dale Bruce, Wichita, Kan., on the brief), for appellant.
Eugene W. Davis, Asst. U. S. Atty., Topeka, Kan. (Lester Luther, U. S. Atty., and Malcolm Miller, Asst. U. S. Atty., Topeka, Kan., on the brief), for appellee.
Before PHILLIPS, Chief Judge, MURRAH, Circuit Judge, and RICE, District Judge.
Warren was indicted, tried, and convicted on an indictment which charged him with a violation of § 462(a) of the Selective Service Act of 1948,1 50 U.S.C.A. Appendix, §§ 451-470.
The indictment charged "that on October 23, 1948, at Wichita, in the Second Division of the District of Kansas, * * * Warren did knowingly counsel * * * Walter Dean Murrah * * * who was required by the Selective Service Act of 1948 to register for training and service in the armed forces of the United States to fail and refuse to register for service in such * * * armed forces."
The evidence established these facts: Murrah became 18 years of age on October 20, 1948. He lived with Warren, who is his stepfather, in Wichita, Kansas. Shortly before October 20, 1948, Warren advised, counseled, and urged Murrah not to register as required by the Act and suggested that Murrah, with funds provided by Warren, either go to Canada or Mexico. Murrah rejected Warren's counsel and duly registered. Warren testified that he is a practicing physician; that he is a member of the Unitarian Church; that he felt that Murrah and others should not comply with the Act; that he believed war to be a great evil; that without compulsory military training, war could not be carried on and that war could be prevented if the Act could not be enforced; that he believed certain laws are detrimental to man as a whole and, therefore, should be disobeyed; that from time to time he undertook to instruct Murrah with respect to moral, social, and religious matters in accordance with his beliefs, and admitted that he advised Murrah not to register and told Murrah if he did not register and would go to Canada, he would pay the expenses incurred by Murrah in so doing.
By § 1 of Title I of the Act, Congress declared: "* * * that an adequate armed strength must be achieved and maintained to insure the security of this Nation", and "* * * that it is essential that the strength and organization of the National Guard, both Ground and Air, as an integral part of the first line defenses of this Nation, be at all time maintained and assured", and "To this end, it is the intent of the Congress that whenever Congress shall determine that units and organizations are needed for the national security in excess of those of the Regular components of the Ground Forces and the Air Forces, and those in active service under this title, the National Guard of the United States, both Ground and Air, or such part thereof as may be necessary, together with such units of the Reserve components as are necessary for a balanced force, shall be ordered to active Federal service and continued therein so long as such necessity exists."
Section 3 of Title I of the Act in part provides: "* * * it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder."
Section 12(a) of Title I in part provides: "* * * any person * * * who knowingly counsels, aids, or abets another to refuse or evade registration or service in the armed forces or any of the requirements of this title * * * shall, upon conviction * * * be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment * * *."
Section 12(a) also defines in the disjunctive nine other offenses, six of which precede and three of which follow the definition of the offense set out above. A single penalty provision prescribes the same punishment for each of the defined offenses. Courts should interpret a statute in accordance with its dominant purpose; particular provisions should be read in the light of their context and if the words fairly permit, they should be given an interpretation that will carry out the manifest legislative policy.2 Here, the manifest legislative policy was to make effective the requirement of registration and service in the armed forces. We believe Congress intended that counseling, aiding, or abetting another to refuse or evade registration or service in the armed forces should be a primary and not an accessorial offense and that it should not be essential to consummate the offense that the person counseled, aided, or abetted should refuse or evade registration or service in the armed forces. Construed otherwise, the provision would be identical in its effect with the general aider and abettor statute, 18 U.S.C.A. § 550 now § 2, and would serve no useful purpose.
Warren asserts that because he believed war to be wrong, and registration, since it is in aid of war, likewise wrong, he had the right to counsel Murrah, with whom he stood in the relation of loco parentis, to evade and refuse registration. He predicates his contention on the rights of freedom of religion and freedom of speech secured by the First Amendment to the Constitution of the United States.
The constitutional power of Congress to raise armies necessarily connotes the like power to say who shall serve in them and in what way.3
Under the war power, Congress may provide for conscription into combatant military service those who are conscientiously opposed to participation in war. Who shall be exempt from service in the armed forces is dependent upon the will of Congress and not upon the religious scruples of the individual, except as Congress may provide.4
Congress has power to raise armies by conscription in time of peace as well as in time of war.5 The power to do so is essential to the national security. We must accept as true the recitals of Congress in the Act. Moreover, we can take judicial notice that when the Act was passed, the balance between peace and war was so delicate that no one could forecast the future with certainty and that our national security required the maintenance of adequate military, air, and naval establishments and that, without such establishments, our survival as a nation of free and independent people would be in jeopardy. Congress has power to prepare against an enemy, actual or potential. It is not required to postpone that preparation until a time when it would be too late.
Freedom of religion and freedom of speech, guaranteed by the First Amendment, with respect to acts and utterances calculated to interfere with the power of Congress to provide for the common defense and to insure the survival of the nation are qualified freedoms.6 They may not be construed so as to prevent legislation necessary for national security, indeed, that may be necessary to our survival as a nation.
7
We hold that the provisions of the Act...
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