Franke v. Murray

TRIEBER, District Judge (after stating the facts as above). The grounds upon which it is sought to reverse the judgment of the court below are: (1) That in order to be a deserter one must be in the ac tual military service, and that until he has been sworn in as a soldier he has not lost his status as a civilian. (2) If he has committed any offense, or violated any of the laws of the United States, he subj ected himself to civil prosecution only, under the provisions of section 6 of the Conscription Act. (3) That Congress had no power to authorize the President to make any rules and regulations which should have the effect of law, that being a delegation of legislation which is not permissible under the Constitution. [ 1 ] As to the last claim, it is sufficient to say that it was adversely [868] disposed of by the Supreme Court in Arver v. United States, 245 U. S. 366, 38 Sup. Ct. 159, 62 L. Ed. -, opinion filed January 7, 1918. [2] To sustain the first proposition, counsel rely on Houston v. Moore, 5 Wheat. 1, 5 L. Ed. 19, and In re Grimley, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636. Neither of these cases is applicable to the issues in this case, or the acts of Congress under which appellant is held. In Houston v. Moore the question. before the court was, whether a statute of the state of Pennsylvania, which provided that a militiaman of that state was subject to trial by a court-martial of the state for failing to respond when called, was constitutional. The contention was that Congress alone had that power, and a statute of a state is therefore unconstitutional. This was denied by the highest court of the state of Pennsylvaniá, and upon writ of error to the Supreme Court of the United States that judgment was affirmed; the court holding that, in the absence of action by Congress, the state possessed that power. In Re Grimley the only question involved was that of a voluntary enlistment, .hence does not apply to a Selective Draft Act, such as is the act of Congress of May 18, 1917. McCall’s Case, Fed. Cas. No. 8,669. Section 2 of the Selective Draft Act provides: “All persons drafted into the service of the United States * * * shall, from the date of said draft! or acceptance, be subject to the laws and regulations governing the regular army.” This, of course, includes the Articles of War, as members of the regular army are subject to trial by court-martial. Article 2 of the Articles of War (section 1342, Rev. St., as amended by Act Aug. 29, 1916, c. 418, 39 Stat. 650, U. S. Comp. St. 1916, § 2308a) provides: Persons Subject to Militwry Law. The following persons are subject to these articles and shall be understood as included in the term ‘any person subject to military law,’ or ‘persons subject to military law,’ whenever used in these articles: Provided, that nothing contained in this act, except as specifically provided in article two, subparagraph (e), shall be construed to apply to any person under the United States naval jurisdiction, unless otherwise specifically provided by law. “(a) All officers and soldiers belonging to the Regular Army of the United States; all volunteers, from the dates of their muster or acceptance into the military-service of the United States; mid all other persons lawfully called, drafted or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft or order to obey the same.” There is therefore no room fo r doubt that, under the Selective Draft Act and the Articles of War, tire appellant having been drafted into the service of the United States, he became from the date of said draft, and certainly after acceptance and notice, subject to the laws and regulations governing the regular army, including the Articles of War. The laws governing voluntary enlistments cannot be applied to involuntary enlistments by draft or conscription. [3] It is also claimed that the time when he became a soldier, within the meaning of the law, is regulated by article 109 of the Articles of War. But that article only refers to voluntary enlistments. It reads, “At the time of his enlistment every soldier shall take the fol [869] lowing oath or affirmation,” and then follows the form of the oath. But as the petitioner did not enlist, but was drafted under the Selective Draft Act, this article does not apply. [4] The claim that, if the petitioner committed any offense, he can only be prosecuted in a civil court, and that therefore a court-martial is without jurisdiction, is equally untenable. The contention of counsel is that, as section 6 of the Selective 'Draft Act makes it a misdemeanor to violate any of the provisions of the act or the regulations made thereunder, the appellant can only be tried in a civil court. But that section expressly excepts those subject to military laws, ft therefore applies only to those “not subject to military laws,” and as we hold that the petitioner is, under the Selective Draft Act, subject to military law, the contention must fail. [5, 6] The claim of appellant that he is a member of a well-recognized religious sect or organization, whose creed and principles forbid the members participating in war in any form, cannot be raised in a collateral proceeding like this. That was a question to be determined under the act of Congress, first by the local board, and upon appeal by the district board. That provisions of this nature constitute due process of law, under the constitutional guaranty, has been frequently and uniformly held. That it applies to the act in question has been decided by the United States Circuit Court of Appeals for the Second Circuit in Angelus v. Sullivan, 246 Fed. 54, - C. C. A. -, and by District Courts in United States ex rel. v. Heyburn (D. C.) 245 Fed. 360, In re Hutflis, 245 Fed. 798, and United States ex rel. v. Finley, 245 Fed. 871. It is only when the action of such a board was without jurisdiction, or if, having jurisdiction, it failed to give the party complaining a fair opportunity to be heard and present his evidence, that the action of such a tribunal is subject to review by the courts. Chin Yow v. United States, 208 U. S. 8, 28 Sup. Ct. 201, 52 L. Ed. 369; Gegiow v. Uhl, 239 U. S. 3, 36 Sup, Ct. 2, 60 L. Ed. 114. But no such claim is made by appellant. On the contrary, he admits in his petition that he had a fair opportunity to be heard and present his evidence. [7] It is further claimed that article 2 of the Articles of War was repealed by implication by section 6 of the Selective Draft Act. But there is no merit in this claim. Repeals by implication are never favored, and only when the two acts are totally inconsistent and irreconcilable will the older act be held to be repealed by the later. No repugnancy has been pointed out by counsel, and none can be found. Frost v. Wenie, 157 U. S. 46, 15 Sup. Ct. 532, 39 L. Ed. 614; United States v. Greathouse, 166 U. S. 601, 17 Sup. Ct. 701, 41 L. Ed. 1130; Washington v. Miller, 235 U. S. 422, 428, 35 Sup. Ct. 119, 59 L. Ed. 295 ; Chase v. United States, 238 Fed. 887, 152 C. C. A. 21. In Washington v. Miller, the court said: “Such repeals are not favored, and usually occur only where there is such an irreconcilable conflict between an earlier and a later statute that effect reasonably cannot be given to both.” The judgment of the District Court was right, and is affirmed.