# Petitioners Brief — In re Catanzaro

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1944
- **Citation:** 321 U.S. 793

## Text

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13

SUPPORTING BRIEF

Specifications of Error

The petitioner assigns the following errors in the record
and proceedings of said cause:

The United States Cireuit Court of Appeals for the
Third Cireuit committed fundamental error in affirming
the judgment of the trial eourt because:

(1) The inalienable writ of habeas corpus has been sus-
pended and withheld as a penalty for petitioner's failure
to obey an illegal order of the dratt hoards so as to deny
judicial review of the unconstitutional and illegal action
of the boards upon which the indictment is based, contrary
to 28 U.S.C. sections 451-464 and Clause 2 in Section 9 of
Article I of the United States Constitution.

(2) The facts and circumstances were xo exceptional,
extraordinary and unusual, presented a clear and present
danger of irreparable and inescapable injury, and an im-
mediate need for the writ of habeas corpus, together with
a complete absence of the right to urge the in ‘alidity of the
order on which the prosecution is based in defense to the
indictment or upon appeal, that it was the duty of the dis-
trict court to grant the writ and hold a hearing on the in-
validity of the draft board's order prior to the trial of the
indictment,

(3) The writ of habeas corpus is the only legal remedy
available to the petitioner in order to avoid the ordeal of
having to undergo a trial in execution of an act of attainder
in the district court hy denial of his right to be heard in his

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own defense, contrary to Clause 3 in Section 9 of Article ]
of, and the due process clause of the Fifth Amendment to,
the Constitution of the United States.

(4) Petitioner is in custody by color of the authority of
the United States and committed for trial before the United
States Distriet Court in violation of the Constitution and
laws of the United States upon an indictment based upon
an illegal order of the draft board which is contrary to
law, contrary to the undisputed evidence that petitioner is
exempt from duty under the Act, without support of sub-
stantial evidence that he is under duty for training and
service under the Act, made in violation of the due process
clause of the Fifth Amendment and arbitrary and capri-
cious.

(5) The eriminal sanctions clause of the Act and the
Regulations have been construed by the courts so as to
deny to the petitioner his right to show that the order upon
which the indictment is based is void, thereby violating the
due process clause of the Fifth Amendment to the Con-
stitution, transferring the Judicial powers of the courts to
the draft boards contrary to Article IIL of the Constitu-
tion and converting the Act into a Bill of Attainder con-
trary to Section 9 of Article I of the United States Con-
stitution.

or each of the above reasons the judgment of the Cir-
cuit Court of Appeals for the Third Circuit should be re-
versed together with the judgment of the district court.

ARGUMENT

The history of the writ of habeas corpus, the express
provision of the Constitution securing it to the people, the
statutes which implement the constitutional guarantee and
the absence of any language in the Act in question denying
the writ expressly as a means of judicial review of the il-
legality of the draft board order, together with the con-
struction placed on the Act in the Falbo case, dispel any
intention or implication of Congress to withhold the remedy
until compliance with the order and makes imperative the
allowance of the writ to review the cause of petitioner’s
detention.

The great and arbitrary powers assumed and granted
to the sheriffs in England in ancient times were usurped
by an abuse of ill-defined discretion. They were thereby
empowered to arrest and hold persons on suspicion without
commitment or by order of star chamber proceedings. The
intolerable abuses of the criminal process of the law of the
land led to the invention by the chancery of writs comlnand-
ing the production of the hody of the person detained. The
writ was first called the writ de homino replegiando, and
later became known as the writ of habeas corpus. The writ
of habeas corpus was issued before the Magna Charta under
the name of de odio et atia and is specifically mentioned in
Article 36 of the Magna Charta which provides that it shall
“not be refused”. During these periods it played an impor-
tant part in enabling a person to avoid trials by ordeal and
by battle in violation of the right to a judicial trial. During
the reign of Charles 1, the king and his Judges completely
lost their reasons and balance. This was due to the weak-
ness of the king, who yielded to ill-advised ministers and
who was badly served by subservient Judges. The warden
of the Fleet Prison had made returns to Writs of habeas
corpus, stating that the prisoners, in whose behalf they had

er

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been obtained, were confined by warrant of the privy council
er committed by special command of. the king. Though
counsel for the prisoners insisted that. the council was
bound to assign a suflicient cause of commitinent, just as
any petty magistrate would be, the judges decided that the
royal mandate was warrant enough for any arrest and
detention.

This same view was taken by the higher judges in
Darnel’s Case in 1627. The House of Commons thereupon
passed resolutions to the contrary, and after a conference
with the House of Lords the measure known as the Petition
of Right was passed in 1627, (3 Car. 1, ¢. i) In section 5 of
this Act are recited the above facts, and it Was enacted
“that no freeman in any such manner as is before mentioned
be imprisoned or detained”, Later, in 1641, by Act abolish-
ing the Star Chamber, the right to the writ of habeas corpus
Was given to test the legality of commitments by command
or warrant of the king or the privy council,

The reign of Charles IT was marked by further progress
of the use of the writ of habeas corpus. Lord Clarendon
Was impeached for causing Inany persons to be imprisoned
against the law and to he conveyed in custody to places
outside of England. During 1679, in consequence of Claren-
don’s arbitrary proceedings, a new bill was int roduced which
passed both Houses and became the famous Habeas Corpus
Act of 1679 (31 Car. i.e. Fy."

“The great writ of habeas corpus has been for centuries
esteemed the best and only sufficient defense of personal
freedom. In leingland after a long strugele it was firmly
cuaranteed by the famous Habeas Corpus Act of May 27,
1679, ‘for the better securing of the liberty of the subject,
Which, as Blackstone says, ‘is frequently considered as

“The above statement on history of the writ compiled from Toldsworth.
History of the Lnaglish Law, vol. 4. DP. LOS-125 3 Enenclopadia Britannica,
M42, Vol. 11. p. 58: The Ene velopedia Americana, 1942. Vol. 138: pp. GOL-GO4 +
Cooley, Constitutional Limitatious, Sth ed. vol. 1. Pp. TOX-TLS > Watson on

the Constitution, Vol. 1, pp. 121-783; Kent's Commentaries, 12th ed.
(lolmes) Vol, 2. pp. 32-42.

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another Magna Charta’ It was brought to America by the
colonists, and claimed as among the immemorial rights de-
scended to them from their ancestors, Naturally, therefore,
when the confederated colonies became united states, and
the formation of a common government engaged their de-
liberations in convention, this great writ found prominent
sanction in the Constitution. That sanction is in these
words: ‘The privilege of the writ of habeas corpus shall
not be suspended unless when in cases of rebellion or in-
vasion the public safety may require it.’

“The terms of this provision necessarily imply judicial
action. In England, all the higher courts were open to ap-
plicants for the writ, and it is hardly supposable that, under
the new government, founded on more liberal ideas and
principles, any court would he, intentionally, closed to them.

“This brief statement shows how the general spirit and
genius of our institutions has tenaed to the widening and
enlarging of the habeas corpus jurisdiction of the courts
and judges of the United States: and this tendency, except
in one recent instance, has been constant and uniform: and
it is in light of it that we must determine the true meaning
of the Constitution and the law .. .

“These considerations forbid any construction given to
doubtful words the effect of Withholding or abridging this
jurisdiction. They would strongly persuade against the de-
nial of the jurisdiction even were the reasons for affirming
it less cogent than they are.” (Er parte Yerger, 8 Wall. 85,
99-96, 102-103; and compare Bridges v. State of California,
314 US. 252, 264-266)8

In 1789 the writ of habeas corpus was first spoken of
by the legislature when Congress passed the Act of Septem-
ber 24 (1S. L. 81) to implement the provisions of the Con-
stitution. The power was extended again by the Act of
March 2, 1833, and again by the Act of August 29, 1842. The

* Mr. Justice Stone exhaustively reviews the history, how and constitu.

ional provisions on the subject in Wed ally v. Hill, 203 U.S. 131. 135-139,
to which reference is here made.

eee ons? |

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Act of February 5, 1867, expanded the right to the writ to
its present use. Section 14 of the Act of 1789, inter alia
provides that the writ shall extend to cases where prisoners
are in custody by authority of the federal government and
“are committed for trial before some court of the same”.
The provisions of the original act and the various amend
nents are now incorporated in Chapter 14 of the United
States Code, sections 451 to 466,

In Er parte Watkins, 3 Pet. 193, this court described
the writ as “a high prerogative writ, known to the common
law, the great object of which is the liberation of those who
may be linprisoned without suflicient exuse”,

The views of Mr. Justice Holmes expressed in his dis-
sent in Frank v. Magnum, 237 U.S. 309, now appear to have
heen adopted by this court. In that case. at page 345, he
said: “2... habeas corpus cuts through all forms and L00esS
to the very tissue of the structure. It comes in from the
outside, not in subordination to the proceedings, and, al-
though every form may have been preserved, it opens the
inquiry whether they have heen more than an empty shell.”
This perspective was reflected by the opinion in Mooney
Vv. Holohan, 294 ULS. 103, 113, where it is declared that the
writ was the “historical remedial process when one is de-
prived of his liberty without due process of the law in vio-
lation of the Constitution of the United States”. Later, in
Johnson v. Zerbst, BOA ULS, 458, this court held that the
writ was intended to be preserved, not destroyed; that it
Was not narrowed, but expanded, by the Constitution and
Congress; that it went outside the record and looked be-
hind the forms; that the procedure thereon had been liberal.
ized. The court held it must be alert to examine for itself.
The Chief Justice in Bowen vy. Johuston, 306 ULS. 10, de-
clared that it was a precious safeguard of liberty and was
available to release the prisoner when there is no offense
shown to have been committed. He said that upor this court
falls “no higher duty than to maintain it unimpaired”,

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(P. 26) Again, at page 27, he said: “But it is equally true
that the rule is not so inflexible that it nay not vield to
exceptional circumstances where the need for the remedy
afforded by the writ of habeas corpus is apparent.”

In Walker v. Johuston, 312.ULS, 275, the court declared :
“As we have said in Johnston y. Zerbst, 304 US. 458, Con-
gress has expanded the rights of a petitioner on habeas
corpus.” (PL 285) Sustaining the claim for. the writ, in
Smith ve O'Grady, 312 USS. 329, Justice Black referred to
the writ as the great “historic remedy”, thus echoing the
views of the court expressed in prior cases, Speaking in
Holliday v. Johuston, 313 U.S. 2 2, Mr. Justice Roberts
stated: “a petition for the writ of habeas corpus ought not
be scrutinized with technical nicety”; and further, “we have
recently emphasized the broad and liberal policy adopted
by Congress respecting the office and use of the writ of
habeas corpus in the interest of the protection of individual
freedom to the end that the very truth and substance of
the cause of a person's detention may be disclosed and
justice be done.”

Sunilarly in Waley v. Johnston, 316 U. S. 191, the court
extended the writ and broadened its scope so as to permit
a full inquiry into facts entirely dehors the record to show
the illegality of a plea of guilty, thus placing the plea on
the same footing as a confession obtained in the same man-
ner by force and duress, It was said: “In such circumstances
the use of the writ in the federal courts to test the constitu-
tional validity of a conviction for crime is not restricted
to those cases where the Judgment of conviction is void for
want of jurisdiction of the trial court to render it. It extends
also to those exceptional cases where the conviction has
heen in disregard of the constitutional rights of the accused,
and where the writ is the only effective means of presery-
ing his rights.” (Pp. 104-105)

The circumstances under whieh the writ of habeas corpus
lies has been aptly summarized in Graham v. Squier, 132 F.

Se

os Riek 8 A SE YR

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2d 681 (CCA 9th), where it was held to be available in all
‘ases of illegal imprisonment for whatever cause and under
whatever pretense. See also the dissenting opinion by Judge
Haney in Zimmerman v. Walker, 132 F.2d 442, at page 447,
Compare Cochran v. Nansas, 316 U.S. 255, 256-258, and
Pyle v. Nansas, 317 U.S. 213, 215-216. In the Pyle case the
writ issued because the conviction was alleged to have been
obtained on perjured testimony for the state and the illegal
suppression of defendant's evidence.

In the dissenting opinion in the case at bar Judge Biggs
said: “It is clear that a registrant is deprived of his liberty
when he is arrested because he fails to report for induction.
The restraint is wrongful if the order of the draft board
violated by the registrant was invalid, unless it be true
that the Selective Training and Service Act provides that
the order must be obeyed in any event and under any cir-
cumstances, The Act, however, does not so provide.” (138
I. 2d 100, 103; R. 15)

The holding in Falbo v. United States, No. 73 October
Term, 1943, decided January 3, 1944, is confined exclusively
to the denial of the defense of in ralidity of the order to
indictments prosecuted in criminal cases. It cannot be said
that the Act or that opinion circumscribed the jurisdiction
of the federal courts in habeas corpus actions. Indeed habeas
corpus was recognized in the Malbo opinion as available to
review a classification after induction: and, of course, there
is nothing in the decision from which it ean be inferred that
the writ could be denied one who has been illegally inear-
cerated under Section 11 of the Act, either by commitment
for trial or judgment of conviction. Although the scope of
Judicial review under the writ of habeas corpus is guaran-
teed by the Constitution and needs no legislative declara-
tion, Congress has seen fit to implement the constitutional
provisions with strong statutes favoring the writ. The writ
‘annot be suspended by the courts at any time, and the
executive can do so only by express enactment of Congress,

which authority is confined to cases “of rebellion or in-
vasion” where “the public safety may require it”. (Watson
on the Constitution, Vol. 1, pp. 724-729) It cannot be sus-
pended by express law of Congress or construction of
statutes by the courts in order to facilitate the war effort
or to speed the raising of an army. Ea parte Milligan, 4
Wall. 1-125; Ex parte Quirin, 317 U.S. 1,

Neither Congress nor the Constitution imposes any re-
strictions or conditions as to the time of the illegal restraint,
nor do they inflict any penalties against the person unlaw-
fully imprisoned hy denying the writ because the person
refused to obey the administrative agency or other author-
ity that causes the restraint. The prisoner is entitled to
judicial review by writ of habeas corpus at any time, when
the question cannot be otherwise reviewed, when it is shown
that the detention is either “by color of the authority of the
United States”, or the person “is in custody for an act done
or omitted in pursuance of a law of the United States”, or
“is in custody in violation of the constitution ... of the
United States”, 28 U.S. Code, See. 453. It should be noticed
that failure to report for induction under the Act and Reg-
ulations is “an act... omitted in pursuance of a law of the
United States” within the express meaning of the code.

By Section 452 of 28 U.S. Code the federal courts are
given “power to grant writs of habeas corpus for the pur-
pose of an inquiry into the cause of restraint of liberty”.
Section 461 of Title 28 confers broad jurisdiction upon the
courts, after a hearing of the writ, by providing that the
court must thereupon “dispose of the party as law and
justice require”. The broad and beneficent provisions sup-
port the conelusions of Judge Biges in his dissent here and
the opinion of Judge Yankwieh in Ev parte Stewart, 47
I’, Supp. 410, where, at page 414, on the precise problem
presented here, it is said: “In other words, my view is that,
if an inductee is restrained of his liberty, in consequence
of what he alleges to be the arbitrary action of a Selective

EC ea ENS |

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Service Board, no matter at what state he is restrained,
he may, by writ of habeas corpus, question whether there
Was evidence to sustain the action of the board. He does
not have to wait until he is inducted, and direct his writ to
the Commanding Officer. Nor does he have to risk convic-
tion, desertion or court-martial.” See also the opinion of
the district court in Goodwin vy. Rowe, 49 I. Supp. 703,
reaching the same conclusion.

Accordingly, since Congress enacted the Selective Train-
ing and Service Act of 1940 and failed to provide an ex-
press declaration nullifying the availability of the writ and
denying judicial review of illegal action of the board to
one who refused to report for induction, it cannot be said
that Congress intended to penalize such person by with-
holding the benefits of the writ. Chapter 14 of Title 28 of
the United States Code was not repealed by the passage of
the draft act. It must be assumed that the Congress in-
tended that persons proceeded against or convicted under
the Act would be equally entitled to the writ of habeas
corpus as are persons illegally proceeded against or con-
victed under any other law of the United States. This court
must not impute to Congress the intention of repealing the
habeas corpus statutes when it passed the draft act. Re-
peals by implications are not favored, and a repeal will
not be implied unless there be an irreconcilable conflict be-
tween the words expressed in two statutes. Petri v. Creel-
man Lumber Co., 199 U.S. 487; Wood v. United States, 16
Pet. 362; State v. Stoll, 17 Wall. 430.

It cannot be argued successfully that the writ should be
denied as a penalty for failure to report for induction. To
sustain such a contention would obviously for ever pre-
clude the courts from inquiring into the illegality of the
restraint of a prisoner beeause it is impossible for the
induction process to place him in military custody when he
has been reported to the district attorney as a Jelinquent.
Thereafter he is subject, according to the Act, only to the

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jurisdiction of the Department of Justice to be dealt with
according to law. This argument leads to penalizing the
petitioner by suspending the writ contrary to Clause 2 in
Section 9 of Article I of the United States Constitution.
This court early in its life held this provision to be a
restraint upon judicial action, (Er parte Yerger, 8 Wall. 85,
95-96, supra pp. 10, 17, this brief).

The strong constitutional provision securing the in-
alienable writ of habeas corpus necessarily precludes this
court from giving to the statute a construction which denies
the writ of habeas corpus contrary to the constitution. It is
the duty of this court to construe the Selective Training
and Service Act of 1940 which does not mention the writ
of habeas corpus, together with the habeas corpus statutes
(28 United States Code, Sections 451 to 464), in such a
manner as to avoid unreasonable, penalizing or unconstitu-
tional results. Anniston Mfg. Co. v. Davis, 301 U.S. 337,
301-352, where it is said: “... the provision should not be
construed as demanding the performance of a task, if ulti-
mately found to be inherently impossible, as a condition of
relief to which the claimant would otherwise be entitled.”
United States y. Kirby, 7 Wall. 482, 486-4874 To require
the petitioner to report for induction after he has been de-
clared delinquent and arrested is to inpose the performance
of an impossible condition.

This court’s conclusions in the Falbo case withholding
judicial review of the illegal draft board order in defense
to the indictment does not support the conclusion of the
courts below. In that case the court simply construed the
statute by imputing to Congress the intent of denying said
defense, Apparently this court considered the general pro-
Visions of the due process clause of the Fifth Amendment
were not strong enough to preclude this court from thus
construing the criminal sanctions clause of the Act and

‘ha parte Cohen, 254 1. 711 > Delaware & Hudson Co. Vv. Albany & Sus.
Rk. Co. 213 U.S. 435,

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impliedly held that this interpretation placed on the clause
did not bring it into collision with the (Constitution. What-
ever are the considerations and grounds that might have
led to the conclusions reached in the Falbo decision these
are not suflicient reasons for the denial of the writ of habeas
corpus to petitioner, The specifie and strong provision of
the habeas corpus clause of the First Amendment definitely
rejects any such straining of the construction powers of
the court concerning Acts of Congress challenged before the
court. West Virginia State Board of Education v. Barnette,
319 U.S. 624, 638-640; United States v. Carolene Products
Co., 304 U.S. 144, 152, note 4.

There is no legislative prohibition in the Selective Train-
ing and Service Act which denies application of the board
and liberal provisions of the habeas corpus statutes or the
Constitution. In the Falbo case this court held directly that
the petition for writ of habeas corpus is available to de-
termine whether or not the selectee is liable for training
and service or inducted lawfully into the armed forees. Even
Where individuals have been convicted by court-martial pro-
ceedings it has heen repeatedly and unanimously held that
the writ of habeas corpus is available to the prisoner in the
district court to inquire into the status of the petitioner and
legality of the proceedings whereby it is claimed he is sub-
ject to jurisdiction of the armed forces. Ey parte Reed, 100
U.S. 13; In re Grimley, 1837 U.S. 147: In re Morrissey,
IST USS. 157; Johnson v. Sayre, 158 U.S. 109: Givings V.
Zerbst, 255 U.S. 11, 20: Crowell v. Benson, 285 U.S. 22, 58:
Ex parte Cain, 39 Ala. 440, which latter case involved a
minister of religion.

In Ver Mehren v. Sirmeyer, 36 F. 2d 876 (CCA 8), it
was held that the petitioner was entitled to a discharge
under court-martial proceedings where it appeared that he
had not been legally inducted and that the Selective Service
Regulations under the Selective Service Aet of 1817 had not
been followed. See also Ew parte Milligan, 4 Wall. 1-125.

or

rary )

In the Ver Mehren ease, supra, “The court thus went behind
the court-martial back to the Board, and having found that
the Board had improperly inducted him, wiped out the
court-martial conviction entirely. In other words, after the
petitioner had actually been convicted by court-martial, the
Court proceeded to review, not his conviction, but the legal-
ity of the action of the Selective Service 3oard, in inducting
him, in the first instance.” (Er parte Stewart, 47 F. Supp.
410) °

To now construe the statutes so as to penalize the peti-
tioner by withholding from him the writ of habeas corpus
because he held the draft boards in contempt for their vio-
lation of the law is to arbitrarily and capriciously discrim-
inate against those who claim their legal rights in favor of
subservient persons who comply with the illegal orders of
draft boards. This discrimination cannot be allowed and
the court will not permit the denial of the habeas corpus
provisions of the statutes and the constitution because such
would be the imposition of penalties so as to convert the
statutes into a dragnet. United States v. Shackford, 5 Mason
445; Bank of Columbia vy. Okely, 4 Wheat. 235; United
States v. St. Paul M. & R. Co., 247 U.S. 310, 313. The eon-
struction given the statutes by the court below reads into
them something that is not there, and constitutes mind-
reading of the members of the Congress, contrary to the
established doctrine of this court which forbids such im-
proper feats. To thus read the mind of Congress is to sub-
stitute construction for legislation and amounts to judicial
legislation. United States vy. Missouri Pac. R. Co., 278 U.S.
269; United States v. Felt & Tarrant Mfg. Co., 283 U.S,
269. The specific terms of the habeas corpus statutes secur-
ing the writ prevail over the reading between the lines of
the Selective Training and Serviee Act of 1940 done by
the court below so as to deny the conclusion reached. Nepner
Vv. United States, 195 U.S. 100.

26

The line of cases holding that the writ of habeas corpus
ix not available in advance of the trial under an indictment
does not control here because these cases proceed on the
theory that it is within the diseretion of the court to refuse
the writ where it appears that the same matters are avail-
able as defenses upon the trial and on appeal. Thus Falbo
v. United States, denying entirely the right to urge the de-
fense to the indictment that the order upon which it is based
is invalid, ipso facto strikes out of the petitioner's path in
this case the opinions of the court in the cases of Johnson

Hoy, 227 U.S. 245: Glasgow v. Moyer, 225 U.S. 420;
Jones v. Perkins, 245 U.S. 390; In re Langaster, 137 U.S.
393; Riggins v. United States, 199 U.S. 47, 551, which
would have blocked petitioner's approach if the Falbo case
had been decided otherwise.

Since the decision in Falbo v. United States is not de-
terminative of the issues and the denial of the defense to
the indictment was sustained, there is created thereby
more imperative demand for the writ of habeas corpus for
the purpose of reviewing the order of the draft board upon
which the indictment is based. By reason of the fact that
petitioner was reported to the district attorney as a de-
linquent because he refused to obey the illegal order and
in view of the action of the Department of Justice upon
such report by arresting and proceeding to indict the peti-
tioner, there is created a lear, immediate and great need
for the writ of habeas corpus. He will be compelled to
undergo a trial by ordeal and suffer pains and penalties in-
flieted under an act of attainder because conviction will be

inevitable and he will be denied the right to be heard in his

27

defenses, See the Petition for Rehearing in Falbo vy. United
States, No. 73 October Term, 1943, pp. 7-37; 41-49.°

The petitioner, to protect his liberty, may invoke the
powers of judicial review of the administrative action in
the same way and to the same extent that persons have
been permitted to invoke other chancery writs to protect
their property from administrative action, such as the writ
of injunction, without compliance with the administrative
order prior to invoking the judicial powers of the federal
courts. Federal Radio Comm'n v. Nelson Bros. Bond & M.
Co., 289 U.S. 266, 278: Chicago, M. dS. P. Ry. Co. v. Min-
nesota, 184 U.S. 418, 456-457: Ohio Valley Water Co. v.
Ben Avon Borough, 253 U.S. 287, 289; and Shannahan v.
United States, 303 U.S. 596. See also the Petition for Re-
hearing in the Falbo ease, pp. 50-53.

Under statutes where administrative or judicial reme-
dies are provided which subject the persons affected to
heavy penalties or even light burdens as a condition pre-
cedent to judicial review this court has repeatedly held that
the remedy of injunction in chancery is available to obtain
judicial review of the administrative action questioned prior
to compliance therewith. Willcox v. Consolidated Gas Co.,
212 U.S. 19, 53; Missouri Pac. Ry. Co. v.. Nebraska, 217
U.S. 196, 207-208; Oklahoma Operating Co. v. Love, 252
U.S. 3381; Wadley Sou. Ry. Co. v. Georgia, 235 U.S. 651,
660-663; Ex parte Young, 209 U.S. 123, 147. See Petition
for Rehearing in the Falbo ease, pp. 29-33. Since habeas
corpus, another chancery writ, stands on a much stronger
ground, the Constitution, as a basis for protection of lib-
erty of the person, than does the remedy of injunction, it

°In addition to the many cases and authorities cited in the petition for
rehearing showing that the criminal sanctions clause of Section 11 of the
Selective Training and Service Act of 1940 is a bill of attainder because
not requiring and doing away with a judicial trial, see Jn re Yung Sing Hee,
36 BF. 437; Davis v. Berry, 216 F. 41B: Pierce y. Carshadon, 16 Wall. 234;
Calder ve Bull, 8 Dall 886: Green vy. Shumiray, BY NOY, 423: Nentucky vy,
Jones, 10 Bush (70 Ky.) 725: Gaines v. Buford. 1 Dana (31 Ky.) 481, 510;
Watson on the Constitution (Callaghan & Company), Vol. 1, pp. 733-739.

28

must be assumed that the court will hold that it is available
to protect one from execution of administrative agencies
Which leads either to the guardhouse of the armed forces
or the prisons of the Department of Justice. Crowell y.
Benson, 285 U.S. 22, 58: United States v. Idaho, 298 U.S.
105.

Petitioner's claim that the draft boards’ proceedings and
order were the resuii of arbitrary and capricious action in
violation of his rights secured by the due process clause of
the Fifth Amendment and without according a fair hearing
consistent with the “rudimentary demands of justice” is in
effect a charge that the proceedings before the administra-
tive agency was “an empty shell”. (Frank vy. Magnum, 237
U.S. 309, 345; Bowen vy. Johnston, 306 U.S. 19, 26) The
vital and substantial writ of habeas corpus cannot be frit-
tered away on technical grounds or rules of convenience
and of non-interference with administrative agencies,

The impending penalties of the administrative action
by prosecution of petitioner under the criminal sanctions
clause of the Act results in the deprivation of his personal
liberty and his civil rights—an illimitable injury from which
recovery is hopeless. The prosecution has the same banish-
ing effect upon the defendant and removes him from society
in much the same manner as does the deportation from the
country of a person alleged to be an undesirable alien. It
is necessary that habeas corpus be allowed to give relief
for the same reason and same purpose to the person exempt
from the liability for duty under the Aet as the relief
granted to the citizen wrongfully confronted with deporta-
tion. In each instance the administrative agency is without
jurisdiction and if the court so finds upon the hearing of
the writ it is the duty of the court to release the petitioner.
Lloyd Sabaudo vy. Etling, 287 U.S. 829; Gonzales vy. Wil-
hams, 192 U.S.1:Nq Fung Ho vy. White, 259 U S. 276, 284;
Kessler v. Strecker, 307 U.S. 22, 34-35. See pages 68 to 70
of Petition for Rehearing in Falbo v. United States, supra.

29

It cannot be assumed that the Congress intended that
the exempt person under the Act he required to report for
induction as a condition to obtaining judicial review, Cer-
tainly Congress did not intend to destroy the very exemp-
tion which it created and cause inconsistent and unreason-
able results. It has been held that an exempt person need
not exhaust the administrative remedies before obtaining
judicial review. In Gonzales y. Williams, 192 U.S.1,“...she
was not obliged to resort to the Superintendent or the Sec-
retary.” To the same effect is Skinner & Eddy Corp. v.
United States, 249 U.S. 557. Furthermore, habeas corpus
after induction is not an administrative remedy but is a
judicial remedy and the court has held that a judicial rem-
edy need not be resorted to before invoking the aid of the
court. Lane v. Wilson, 307 U.S. 268; Railrd & W. Comm'n
of Minn. v. Duluth St. R. Co., 273 U.S. 625.

The act of submitting to induction is not an administra-
tive remedy contemplated by the Act but is satisfaction of
the administrative order or process. It is a hollow formalism
which need not be complied with. The law does not require
the performance of a vain and needless thing before judicial
powers can be invoked. Utley v. St. Petersburg, 292 U.S.
106. See the Petition for Rehearing in Falbo v. United
States, pp. 34-38.

Judge Yankwich, in Er parte Stewart, 47 F. Supp. 410,
emphasizes the need of the writ of habeas corpus in this
situation by saying: “The need for a competent authority
to question the possible arbitrariness of a board is clearer,
hecause of the fact that no questioning of the action of the
Board is allowed in a prosecution resulting from disobe-
dience of any of the orders issued by the Board. Were it
otherwise, we should have an instance,—which our law ab-
hors,—of finality of administrative action which might leave
a person at the mercy or caprice of a lay board, without the
power to review arbitrariness, abuses of authority or even
lack of jurisdiction. Such a situation is inconsistent with the

ee

ou

doctrine of limited sovereignty, which is at the basis of our
constitutional structure, and which postulates the existence
in the individual of certain rights which he can assert
against the sovereign power itself, And, perhaps the most
fundamental of these rights is the right of freedom of per-
son, of which the individual cannot be deprived, even in
Wartime, except through machinery which guarantees the
fundamentals of due process. > ee Yankwich, The Con-
stitution and the ee IIT)

“Suppose he stands convicted. Would he be in a better
position to raise the qud¢stion whether he was legally in-
ducted by suing out a writ agaist the warden of the peni-
tentiary? Most certainly not. Then, why should he wait? The
only real question here is: Is the petitioner being deprived
of his liberty by virtue of the action of the board? The
answer is, Yes, because he has been arrested for failure to
obey the order of the board. And he does not have to wait
until he has been convicted to challenge that order. One
may raise the question of due process after conviction. But
a person need not wait until then.”

The petitioner has been caught up in a rapidly moving
piece of military machinery specifically designed for speed
so as not to allow judicial trial in defense to the indictment
on the question of the invalidity of the order of the board
which instituted the proceeding. This places him in the posi-
tion of inevitable conviction and destruction of his rights
of citizenship without the right to question the action of
the board. He is certain to suffer pains and penalties of a
modern-day trial by ordeal and by bill of attainder. It is
from this predicament and type of proceedings that the
ancient writ of habeas corpus first came into use. The writ
was regularly employed by the chancellors to rescue the
common people of England from the trials by ordeal and
battle then in vogue in certain parts of Mngland. It is re-
spectfully submitted that the method of trying cases under
the Act in question so as to deny the fundamental defense

31

is nothing but a revival of the trial hy ordeal. (See main
brief in the ease of Falbo vy. United States, pp. 25-39.) The
trials are in violation of due process of law guaranteeing
the right to be heard in defense to an indictment. (See Peti-
tion for Rehearing in the Falbo case, pp. 93, 61-65.) The
proceedings under the Act are contrary to Clause 3 of
Section 9 of Article | of the United States Constitution be-
cause they are by bill of attainder in which all semblances
of a judicial trial are done away with.®

Under this type of proceedings under the indictment it
is imperative that the writ of habeas corpus be granted so
as to protect the rights of petitioner from gross violations
of his constitutional rights.

Prior to the date set for induction by the board the
petitioner was faced with a choice of taking a course that
would lead him either into the military machinery, with loss
of civilian rights and possible death penalty on court-
martial proceedings for claiming his exemption and civil-
ian rights, or into the hands of the Department of Justice
to be convicted by bill of attainder in the district court.
The right to the writ of habeas corpus, after induction
growing out of penalties far more severe than could be
inflicted in the district court, is thus nominal and illusory
and fraught with difficulties and penalties so great that it
is better to refuse to obey the order of uncertain legality
‘ather than ask for protection of the writ of habeas corpus
after induction. “He must either obey what may finally
be held to be a void order or disobey what may ultimately
he held to be a lawful order.” (Wadley Sou. Ry. Co. vy.
Georgia, 235 U.S. 651, 663) “Obviously, a judicial review
beset by such deterrents does not satisfy the constitutional
requirements, even if otherwise adequate, and therefore
the provisions of the act relating to the enforcement... are
unconstitutional.” (Okl'a Operating Co. v. Love, 252 U.S.
331)

® See petition for rehearing in /uihe Vv. United States, pp. 7-26.

9
~

Since it is obvious to all reasonable men that petitioner
‘annot get into the army once he has been found delinquent
and prosecuted for violation of the act in a manner that is
certain to send him to the penitentiary, it cannot be argued
that the petition for writ of habeas corpus is a “litigious
interruption” of the selective process. It is not any more an
interruption of the process than were the habeas corpus
proceedings in Ew parte Crow Dog, 109 U.S. 556, an inter-
ruption of the funeral proceedings and burial of the person
killed by Crow Dog.

In determining the question of whether the district court
erred in refusing to issue the writ and in dismissing the
petition the court must accept all the allegations made in
the petition as true. All reasonable intendments must be
indulged in favor of the petition. The court in determining
the legal effect of the facts alleged must consider them as
conceded and true. Truax v. Corrigan, 257 U.S. 312,332;
Mackay vy. Dillon, 4 Wow. 431; Dower vy. Richards, 151 U.S.
698, 667; State of Arizona v. State of California, 284 U.S.
203; Payne v. Central Pac. R. Co., 255 U.S. 228, 232. See
also Pyle v. Kansas, 317 U.S. 213, and Waley v. Johnston,
316 U.S. 101. In Holliday v. Johnston, 313 U.S. 342, this
court said “a petition for the writ ought not be scrutinized
with technical nicety”.

The district court should have granted the petition for
writ of habeas corpus and reviewed the draft board pro-
ceedings, findings and order because it appears from the
face of the petition that the same are void because they are
(1) in excess of authority of the board, (2) beyond the
jurisdiction of the board, (3) contrary to law, (4) without
substantial evidence to support the action taken, (5) con-
trary to the undisputed evidence, (6) contrary to the Con-
stitution by depriving the petitioner of rights and liberty
without due process of law, and (7) arbitrary and capricious.

An independent inquiry can be made by the district
court on any of the above matters, and in deciding the
questions it is not bound by the findings or determinations

Jo

of the administrative agency, because each of the questions
involved is judicial in its nature and none are administra-
tive discretionary matters.

Since petitioner is a minister of religion under Section
» (d) of the Act, the local board and appeal board acted in
excess of their authority in not classifying him as a minister
exempt from all training and service, and the order of the
hoard is beyond the jurisdiction of the administrative
agency. See petitioner's main brief in Falbo v. United States,
pp. 98-66; 67-73. Also see the reply brief in same case, pp.
4-11. Reference is also made to the petition for rehearing
in the same case, pp. 67-72.

The classification and action of the draft boards is al-
leged to have been in violation of the due process clause
of the Fifth Amendment. Thus are presented for judicial
review “jurisdictional facts” and a constitutional question.
Compare statements in the petition for rehearing in the
vase of Falbo v. United States, pp. 72-75. For the reason
that it is alleged that the action of the boards is contrary
to the evidence and not supported by evidence it is also the
duty of the court to permit review on habeas corpus, see
op. cit. pp. 75-77. Furthermore there is a cause for action
shown in the petition upon the action of the boards in
their refusing to receive evidence, thus denying procedural
due process, see op. cit. pp. 77-79. :

This case presents to this court the vital and all-im-
portant question of whether upon a pretext and pretense
of expediency and convenience the judiciary can apply a
rule of non-interference with administrative action until
its orders are complied with so as to deny and suspend the
inalienable writ of habeas corpus. This great prerogative
writ was enshrined by the people of the United States in the
Constitution for the preservation and protection of their
lives and liberty and for that of their posterity. These
blessings of liberty cannot be thrown overboard to mollify
the demands of those who are clamoring for a destruction
of the institutions of democracy on the home front as a price

34

for effective prosecution of the war, because the only basis
professed for maintenance of the war is to preserve these
heritages. This court is under a solemn obligation and
oath before Almighty God to the people of the United States
not to surrender to the demands of governmental agencies,
the people's jewels, their treasures and ideals locked in the
Constitution by the founding fathers.

If the judgment of the court below be sustained and
the right to the writ of habeas corpus be denied for the
reasons stated by the courts below, then the hands of time
have been violently turned back to that era of darkness
in which the forefathers lived in England from the reign of
Ilenry VII to Charles I. During that time two tribunals,
the Court of Star Chamber and the Court of High Com-
mission, both administrative agencies, were manufactured
hy the king. These two agencies, as abundantly shown by
history, exercised a most fearful authority over the people.
Against their excesses and abuses the most upright and
conscientious judge could not afford relief, because of tech-
nical rules invoked by the crown which had the effect of
suspending the writ of habeas corpus. This condition of
suppression of the people's liberty raised an uproar, which
ended in revolution, the trial and decapitation of Charles 1,
and the establishment of the Commonwealth under Crom-
well, who restored many of the liberties of the people,
including the writ of habeas corpus. In 1861 Mr. Lincoln
said: “If by the mere force of numbers a majority should
deprive a minority of any clearly written constitutional
right, it might, in a moral point of view, justify revolution
—certainly would if such a right were a vital one.” (Voices
of Democracy, Government Printing Office 1941, p. 11)

Although, because of the lack of express restraint in the
Constitution, it may be said by the court that Congress can
deny an inquiry in a criminal case as to the illegality of
the order of an administrative ageney upon which the in-
dictment is based because of the need to mollify the de-
mands of expediency advanced by those in charge of the

30
war effort, no court can for the same reason deny and sus-
pend the people's right to the writ of habeas corpus. To do
such would result in committing innocent persons to prison
by fiat of an administrative agency and deprive them of
their liberty as summarily as if they were thrown into a
dungeon without a judicial hearing. If permitted, it is plain
that a condition similar to that which existed under the
Court of Star Chamber has been created through the res-
urrection of alien, ancient and tyrannical theories applied
by the cruel and wicked kings of England who drove liberty-
loving men to this country te eut and clear out of the wild
forests of this continent the beginning of this nation dedi-
‘ated to the proposition thet such intolerable conditions
from which they fled shall not be resurrected by intrigue,
invasion, rebellion, war, expedieney or judicial sophistry.
The courts below have done just that. It appears neces: ary
that this court destroy this strange, alien, and freakish
product which was engendered, brought forth, and nurtured
by the courts below, to the end that the liberty of the people
and right to the writ of habeas corpus shall remain secure.

“Tyrannical governments had immemorially utilized dic-
tatorial criminal procedure and punishment to make scape-
goats of the weak, or of helpless political, religious or racial
minorities and those who differed, who would not conform
and who resisted tyranny. The instruments ef such govern-
ments were, in the main, two. Conduct, innocent when en-
gaged in, was subsequently made by fiat criminally punish-
able without legislation. And a liberty-loving people won
the principle that criminal punishments could not be in-
flicted save for that which proper legislative action had al-
ready by ‘the law of the land’ forbidden when done. But
even more was needed. From the popular hatred and ab-
horrence of illegal confinement, torture and extortion of
confession of violations of the ‘law of the land’ evolved the
fundamental idea that no man’s life, liberty or property be
forfeited as criminal punishment for violation of that law
until there had been a charge fairly made and fairly tried in

36

a public tribunal free of prejudice, passion, excitement, and
tyrannical power. Thus as assurance against ancient evils,
our country, in order to preserve ‘the blessings of liberty’,
wrote into its basic law the requirement, among others, that
the forfeiture of the lives, liberties or property of people ac-
cused of crime can only follow if procedural safeguards
of due process have been obeyed.

“The determination to preserve an accused's right to
procedural due process sprang in large part from knowl-
edge of the historical truth that the rights and liberties of
people accused of crime could not be safely intrusted to
secret inquisitorial processes. The testimony of centuries,
in governments of varying kinds over populations of dif-
ferent races and beliefs, stood as proof that physical and
mental torture and coercion had brought about the tragical-
ly unjust sacrifices of some who were the noblest and most
useful of their generations. The rack, the thumbscrew, the
wheel, solitary confinement, protracted questioning and
cross questioning, and other ingenious forms of entrapment
of the helpless or unpopular had left their wake of mutilated
bodies and shattered minds along the way to the cross, the
guillotine, the stake and the hangman’s noose. And they
who have suffered most from secret and dictatorial proceed-
ings have almost always been the poor, the ignorant, the
numerically weak, the friendless, and the powerless .. .

“We are not impressed by the argument that law en-
forcement methods such as those under review are neces-
sary to uphold our laws. The Constitution proseribes such
lawless means irrespective of the end. And this argument
flouts the basic principle that all people must stand on an
equality before the bar of justice in every American court.
Today as in ages past, we are not without tragie proof that
the exalted power of some governments to punish manu-
factured crime dictatorially is the handmaid of tyranny.
Under our constitutional system, courts stand against any
winds that blow as havens of refuge for those who might
otherwise suffer because they are non-conforming victims

87

of prejudice and public excitement. Due process of law,
preserved for all by our Constitution, commands that no
such practice as that disclosed by this record shall send
any accused to his death. No higher duty, no-more solemn
responsibility, rests upon this Court, than that of translat-
ing into living law and maintaining this constitutional
shield deliberately planned and inscribed for the benefit
of every human being subject to our Constitution—of what-
ever race, creed or persuasion.”"—Justice Black in Chambers
v. Florida, 309 U.S. 227, 236-238, 240-241.

May it please the court to answer this question: Which
is more reprehensible, conviction based on confessions ob-
tained by torture, or conviction secured without requiring
the prosecution to prove guilt, under See. 11 of the Selective
Training and Service Act of 1940, where judicial trial is
done away with by bill of attainder? Both are condemned
in the Constitution. Is not habeas corpus available to rescue
the innocent victim from the chains of either? The mere
asking of the question echoes down through the corridors of
decades the answer of the courageous men who wrote the
Constitution of the United States.

Conclusion

Upon the above considerations it is respectfully sub-
mitted that this court should reconsider its ruling in Falbo
v. United States which makes necessary the granting of the
writ of habeas corpus to petitioner; and that this court
should grant the petition for writ of certiorari so as to
correct the errors complained of here and committed by the
courts below against the petitioner and against the Consti-
tution of the United States.

Respectfully submitted,

HAYDEN C. COVINGTON
Counsel for Petitioner

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34086415_1981%3A2. Public record. Not legal advice.