*1 declaratory judgment proceeding. The writ of certio- accordingly rari is
Dismissed. UNITED KEEGAN v. STATES. 39.
NO.
Argued 9,10, 1944. Decided June 1945. November Hastings Messrs. John F. X. Finn and Harold W. Mr. William Timbers, vice, H. hac with pro whom Messrs. Leisure, George Joab Fennelly, S. H. Banton Leo C. *2 for
George 'C. brief, on the Norton petitioners were Christoph, Mao-tin Berg, Ernest Frederick No. 44. Carl Ottersbach, Runs, C. William Fitting, C. William John Schatz, 44, Louis sub- Rapp and petitioners No. Max Keegan, 39, in No. pro se. Wilbur V. petitioner mitted se. pro submitted General Mclnerney, with Solicitor
Mr. James M. whom Clark, Tom Messrs. Attorney General C. Fahy, Assistant Erdahl, Fuchs, Strong, Ralph Irving F. William S. Robert Donoghue brief, Shapiro Peter J. S. and States. the United curiae, as amicus X. Finn brief, filed a
Mr. John F. urging reversal. judgment of announced
Me. Roberts Justice in which Mr. following opinion, and delivered Court Murphy concur. and Mr. Justice Frankfurter Justice July 7, 1942, the other indictments, returned Two one charged beginning 26, 1942, conspiracy August returned indictments 1940, ending the dates the January 1, at to in- purpose The evident second were found. alleged conspirators. defendants as several additional clude treat them as оne. We shall charged persons conspiracy
The was to counsel divers evade, resist, and naval service the land refuse in violation of 11 of Selec- of the United States forces 311. App. 50 U. C. Training and Service Act S. tive “knowingly” conspiracy The Act defines the crime as registration or service in the to evade “another counsel forces . . .” land naval does indictment proofs sustain, would not and the evasion contain, to counsel any charge conspiracy registration. charged
In it is certain of the indictment paragraphs (1) That it was part conspiracy that each was and would remain a member of the German-American Bund; that each was responsible leader of the Bund.
(2) That some prepared German articles called Bund Commands and others distributed and them caused to be distributed to units of the Bund.
(3) That meetings. commands were read at (4) That Command 37 counselled, directed, and urged those to whom its evade, contents were communicated to resist, and the lаnd and naval forces. refuse
(5) That in the newspaper articles “The Eree Ameri- can,” published by the Bund, which were distributed, urged German-American resist, citizens others to and evade such service. refuse *3 (6) That the defendants urged otherwise German- American citizens and others to resist the provisions of the Act of 1940'and to evade service.
The 25 defendants were tried together. One was ac- quitted. The Government called 68 witnesses and the trial lasted September from 17th to October 19th, 1942. printed The transcript testimony of furnished this court just pages, covers short of 800 and the exhibits offered in run to evidence over some of them containing over pages. The defendants were represented at the trial by appointed counsel as were not able to employ counsel. correctly
The Government states that the evidence of- by the prosecutor fered falls into two (1) classes: touching the German-American Bund and its purposes, was offered indicate the motives and purposes the defendants’ statements and actions; (2) and evi- touching specific actions, dence conduct, and statements tending to show the existence of a conspiracy and the steps pursuant to it. The taken evidence in the first category overwhelmingly greater in volume than that in the sec- question ond. Indeed a arises whether it was not an abuse such go, at permit discretion to Government Bund and length, concerning into inordinate evidence during a Germany, the Friends New predecessor, its alleged of the period years prior inception of seven concerning Bund and para- and uniforms conspiracy; possession and literature phernalia, pictures defendants. various background characterize as the evidence we shall What ex- proofs The disclose that there may be summarized. early society in the known from some time 1930’s isted Germany. Friends of New About 1935 the name as the to the German-American Bund. After Fritz changed was organization, had Kuhn, the leader been arrested certain offenses irrelevant to present and convicted Kunze, petitioners, president. one of the became At case, of 1940 a new constitution was adopted; convention specified time within the dates as covering at some synopsis the structure of the Bund conspiracy Minutes the convention of 1940 also promulgated. was in evidence. a conception and, of the nature these documents From may of the association extent, purposes to some organized leadership It the fuehrer or obtained. leader, amena- principle. was the and was president His in convention assembled. only to the association ble abrogated modified or law unless until orders were *4 expected obey his Members by a convention. discipline, expulsion orders. Disobedience involved of constitu- hierarchy The entire organization. from the local, officials, was organizations and of national and ent low, held officials, high and office all by him; crеated and organizations The constituent subject pleasure. his leader, which had its and units, each of of local consisted unit, within a an OD such as organizations collateral in uniform, drill to police function division, whose 4S2
meetings perform and other duties; similar members, youth organization, etc.
The professed purpose of the Bund towas alive keep spirit the German among persons German blood in the Speeches United States. justify and literature the infer- ence that the Bund endorsed the Nazi movement in Ger- many and, if it actually did not advocate some form such government in this country, at least essayed to create public opinion regime favorable to the Hitler and German National Socialist State. The Bund was also anti-British opposed entering our the war on the side British; its aim keep was to friendly us neutral to the new Germany. There is much in literature put out or approved by the Bund concerning “discrimination” against American citizens of German blood and fight against which must be waged it. is There also much to the effect that the Bund pursuing is lawful aims within rights the constitutional of its members, and that its not hidden governmental activities need be from agencies. suspicion basis There is of subversive there conduct; sense of loyalty is matter offensive one’s to our Gov- policies. may There well ernment’s be doubt of the or- ganization’s hearty support of those policies, but if the were, membership prior and its subsequent in illegal January 1, 1940, engaged activities, than other charge prove claimed to laid those the indictment, is bare of evidence of the record such. in Congress Draft Act was introduced in June, September by adding (i) 8§
was amended and as so September 16, became law 1940. amended Prior to Sep- been suggestion there seems to have no tember wpuld that, if passed, Bund or its officers law not be binding ought obeyed. on all The oral evi- respecting period dence almost entirely that of secretary former Luedtke, Bund, who was a defend- ant and turned state’s evidence. *5 favored always its members that the Bund and
He statеs said, they were But, he service act. compulsory a selective army fight to a using of draft principle opposed President Germany. The Bund feared that against fight abroad by sending it might conscript army use a desired this Germany. The Bund England, against with having our soldiers neutrality maintain not by country by then shared go foreign shores. These views were into enacted loyal citizens, and some of them were many Training (See (e) by Congress. § 3 of the Selective law Act.) and Service no documentary
There is evidence to contradict testimony. minutes the na- Nothing appears 1940, 31-September 2, or August tional convention held with reference to testimony proceedings, in the to its as says selective service. It is true Luedtke there was some it, stenographer talk about and the was instructed to' omit record; this from the but he say does such talk any way inconsistent with what had was he as testified to the Bund’s attitude. the bill pending House, while was September
On offered, adopted was offered, an amendment signed in the bill when President. rеmained It is Congress of the expressed policy (i) It
“8 vacancy is caused the employment rolls whenever reason of industry by induction into the any business employee pursuant United States an vacancy of this Act such not be shall filled the provisions is member of the Communist Party who any person (50 Bund” U. S. C. App. German-American (i)). Kunze, approval with the other Admittedly probably telegram by letter and members defendants, protested against the bill thus amended Congress passage The Act against signing the President it. became *6 thereafter Kunze called a Shortly 16th. September law of the meeting leaders, many unit at which defendants of including counsel of the Bund. Keegan, the present, the and said that there a Keegan meeting addressed of involved, that members question constitutional against (it is this plain Bund had been discriminated state- applies right go ment to 8 (i)); they had rights. their recited his court establish Kunze efforts prevent bill, an article was to passage appear said rights, in “Free American” entitled “No no duties” and the Bund wаs going fight that discrimination. He explained that the article would make clear that if Ameri- can deprived right citizens were of their work should not military be saddled with burden of service. He said the fight Bund intended to this discrimination Keegan suggested Neither nor Kunze test in court. military irrespective Bund members should resist of what happened the test Luedtke, case. who is the principal what witness as to meeting, occurred at this said Keegan, Kunze, he never heard any national leader anyone advise to resist military service, irrespective of the outcome case; of the test it was the policy of the get Bund to provision (§8 this (i)) out of the Act. The sequel meeting to this was the issue of Bund Com- mand No. 1, 37 on October (Some 1940. 49 such com- mands evidence, were offered in though none but No. 37 on as containing is relied statement relevant to the command, In charge.) this one subjects of several dealt that military with was service. The whole of this sec- according is, tion to the translation submitted by the Government: Military
“4. Service: On October year, this all citizens and non-citizens (male) who are of age, but who have not passed their year, 36th register must with the military authorities. This order must be complied with unhesitatingly. AN IN- however, standpoint, represent
“We justi- NOT MILITARY SERVICE into DUCTION American Bund members and fied, far concerns Law n citizenship in the Selective Service Germans, Germandom members and the rights Bund defenders unconstitutionally severed! are do will REFUSE MAN, can, if he
“EVERY country other and all laws until law duty rights citizenship the states confine *7 ARE REVOKED! members a servile precedent to establish this fight will
“We in original.] matter!” [Emphasis as witness, testified translator, government a Warner, here translated word “prázedenfall,” that the German legal sense,” means “a test case “a “precedent,” He further testi- precedent.” refer as a to case above simply words translated as the that the German fied fairly taken mean “if may be to he “if he can” English And possibly “if can do he do so” or he so.” properly can “Jeder,” word which he translated agreed that the further might be translated аs “each.” “every,” properly as man “Each if he phrase would read: altered, Thus military do . . . . will to service . can . properly refuse etc.” until law follows, from what the Government’s be seen will
As command, on this which it con- pitched really case is to evade military proof service. The a counsel strues it that reached to show various unit lengths to great went it or it they read made available to the leaders, and The is that each units. evidence of their members it unit leader either read to some who was a defendants them, except unit or made available of his members Schneller. only a 1941 but there is no Bund held convention discussed. It there that selective
evidence There is in December 1941. evidence disbanded keep together, leaders advised members to to meet singing for and social purposes; but no evidence anything was said selective military about service or service.
If the promulgation imparting of the contents of Command No. and concurrence its purpose, is evi- dence of an intent to counsel evasion of service, all conviction of the defendants, save Schneller, was justified. But the Government evidently felt that a coun- register sel to draft, making liability thus one's service, address, etc., his public matters of record, and then, if possible, if service, a supposed discrimina- refuse tion-remained effective, be hardly could claimed be a counsel to evade. analyze the clearer if the provisions
This becomes we (50 App. 311). § 11 of the Act U. S. C. subjects person: punishment any It knowingly shall make
(1) party who making any registration; false make
(2) knowingly who shall or be party making any statement as to his or fit- another’s false *8 liability service; ness or for counsels, (3) knowingly aids, who or abets another registration service; to evade or (4) shall any knowingly who manner or fail perform duty required neglect to him by the of Act;
(5) knowingly who shall hinder or by interfere or violence with the administration the Act; of force (6) conspire who shall so to do.
It will be noted that resistance or refusal are nowhere mеntioned, except as such refusal would neg- constitute a duty enjoined by to perform lect or (4) by violence accompanied (5). force or On the other hand, descriptions collocation appear there of two sorts of entries and false evasion, (1) false statements (2) imme- counselling by the denunciation of “eva- diately followed enough distinguishes the Act (3). Plainly evasion, sion” a species duty from conduct, neglect fraudulent mere and from forcible and violent interference or resistance. corresponds
The made with what classification so understanding, and the “evade” means to the common draughtsman effort of the of the indictment make eva- to equivalent sion resistance, of refusal or does violence usage to such as well to the statute. as, is slip away;
“Evade” defined “To to to take escape; refuge in use artifice in avoidance.” evasion; to as, oppose
“Resist” is “To withstand; by defined to physical, mental, power.” or mоral as,
“Refuse” is defined “To decline to to accept; reject; to decline to submit to or undergo.” way rendering
Now the surest incapable oneself evading military service, of slipping away escaping it, register. And the Bund command which is at the enjoins core of the registration Government's case in the strongest terms. That accomplished, a refusal to serve may registrant follow when the is to be inducted. But merely refusal counsel is not made criminal by the Act. § 8 (i) provisions the Act hardly need ani- They speak
madversion. themselves. itCan be that an criticism, that effort eliminate them from the Act, forthright advice those against discriminated register provisions, not, those but if it can be avoided, serve, provisions unless those have been sustained as legal, the courts amount to counselling evasion of serv- validity ice? The belief that of the other provisions of depends the Act the validity of that may section seem foolish but we say can us, other defendants *9 did not believe what the lawyer Bund’s told thеm about that? the Government,
Thus recognizing that the issue and communication of Command No. did in not, itself, sought military service, evade counselling
constitute a intent connection and undisclosed a sinister prove first it relied For this purpose evasion. with it to counsel sentiments and statements un-American on the so-called “Free in the appeared Bund; on articles of the at made speeches on had and proceedings American” and bearing nothing But these evinced the 1940 convention. At indictment. most were charge laid defendants, them, some of that the evidence might who be inclined to counsel evasion kind of men military service. addition, introduced
In Government evidence by made one or other of the defendants at to statements It meetings or other of Bund members. gatherings unit by analysis, judgment final sustain the must, evidence. think
We the evidence insufficient to overcome of Command No. 37 and to fasten on purport innocent imparted purpose those who command a covert сounsel The knowingly evasion of service. testimony carefully has been examined. It cannot be summary A must suffice. quoted extenso.
Most, though testimony not as to oral state- all, Sep- ments the defendants refers to occasions between 16, 1940, Act, July 9, tember the date of the Draft nothing significance There is after the latter 1941. During noted. except period date what is hereinafter mentioned No. 37 was read made available Command leaders, discussed; members unit was to some extent Kunze, and, during accompanied by some period, leaders, visited of the national various units and discussed groups. testimony, in the main, the Act before Keegan, to what directed leaders said Kunze, unit on these occasions.
Most of it amounts to It was stated that the this: discriminatory; unfair that Bund ought members deprived rights at the same time be of civil and asked
489 forces; they the armed that not to should serve army into the called until discrimination was abol- ished; fight that the Bund would that discrimination; would take steps the Bund to correct unfairnеss Act; lawyer that a would take that it; care of if bring Bund would a test case means could be devised that those could refuse end; that who afford it should
military removed; until the discrimination service was try get would provision that the Bund out of (i) unconstitutional; that was that the members Act; register thought right but it was not to ask had that continued, the discrimination but that them to do so while more or less under and wait they protest should enlist rights their were restored to them. One witness until if once the members were testified that Kunze stated right they did not have to bear arms and that treated not going to make a test case of this. the Bund was- specific portions be made to certain Reference should shortly A mail carrier testimony. testified spoke Act went into effect he to the defendant after the objec- office in Belohlavek at the latter’s Cleveland. Over go prove any conspiracy, the evidence did tion it. The witness stated that he said the court admitted to Belohlavek: said, you? draft aren’t He ‘Yes.’ you are
“Joe, you you do if to the said, going I are send ‘What ‘Well,’ vulgar word —T said, he other side?’ So —it them’.” fight against run to the other side will that, meeting at a of a German A testified witness referred early Keegan Buffalo Hiking Club Army, were in the said he two of his the fact that sons referring to those said: present, them sorry and, felt about way, might military in a evade lucky you are boys “You foreign-born.” someone are When you service because Keegan explained: “By claiming be- why, how asked The witness went to Kee- objector.” ing a conscientious him afterwards, spoke privately gan said: “Sup- happen what would to me as a naturalized Amer- posing if I had tried to evade ican citizen being objector? then, he claiming Well, a conscientious citizenship.’ said, I said, your Well, then, ‘You would lose *11 course, hell with that’.” The was inducted to witness ‘Of Army. United into the States Throughout testimony only the entire this is the evi- in of the draft mili- defendant, speaking that or dence service, “evade,” the use the word tary ever or other- indication wise, gave any counsеlling anyone of a to escape military service. Under cross-examination the that, answering questions, Keegan testified had witness only way anyone serving said that could avoid was claiming and he proving that was a conscientious objector. that, meeting
There evidence at before the held passed, Klapprott fight against was said he would not Germany and “the Draft Act up also that would build army an that against Germany” would be used and that he everything” prevent passage “would do of such an Act. respects
As Knupfer, the defendant a witness testified: “Well, Knupfer Mr. explained that a lot of German lose their people a case like jobs, that we should fight.” refuse to
But, cross-examination, qualified witness his testimony the following effect: I
“Q. you And believe something said about that if they jobs were not allowed to have then they should not be upon fight, right? called is that right. A. That is “Q. really And that is the substance of what he said to you at that meeting, is not? A. Yes. suggest
“Q. Knupfer hear Mr. you you, Did ever anyone meeting your membеrship else that group, you register you should not that should evade say Selective Service Act in A. He did not ex- any way? actly with the not, point we should but he came out losing jobs, that on account of the if we not able people country country.” to work in this we in this fight should The following testimony concerns statements attributed to Kunze:
“Q. Well, now, subject particular with reference to the Service, of Selective did he anything say? have further to he Well, always A. said one can be a conscientious objector.
“Q. And he told all you going that he was to be a objector? say go- conscientious A. I did not he ing but he said that it would be be. He wise to said ‘You always objector.’ can become a conscientious That wording. was his
“Q. Then Ido understand now that Mr. Kunze never said that he going was to be objector, a conscientious is I that so? A. cannot recall the exact words that he said, but he used phraseology objector.” that of conscientious
Again, respect with Kunze, to a it statement testified:
“Hе said that we were against, discriminated the Ger- man-Americans, and therefore we sign should not up for the selective service draft, he also meant that he case, wanted to make a test but say he did not what kind of a test I him case ... asked what would I happen if sign would not up for a draft. ... He said he did not himself, know but he going to make test case you I him East, see. So asked what I should do. He said it was if up to the individual he wants to sign up for the draft.” respect
With to the defendant Streuer, a witness testi- fied that he “mentioned” if “anybody has chances stay away from it [military which naturally service] right for it is all people, to some happens
sometimes never witness testified Streuer The same them . . register. not to the draft or anybody to resist told pertain- evidence background Except for the so-called the de- mind of attitude and state ing general to the testimony respect with significant this is all the fendants It should military service. any counselling evade to state- who testified every witness practically added the vаri- meetings, made to conversations ments at heard the defend- defendants, whether he ous when asked testifying ant as to whom he was advocate resistance to military service or evasion of service, answered given that he had never heard such advice by the in question. defendant in mind that
When is borne most of the defendants so-called unit groups were small scattered from leaders coast, Atlantic Pacific whose contacts with the in attending and national officers consisted annual conventions, reading Bund commands to members of the attending meetings to which unit, and Kunze or other came, it plain officers becomes how little evidence national is in the record convict them of a there nation-wide conspiracy to counsel evasion of the draft. In essence, made the Government amounts to That case this: these partisans against were Germany; going men our Germany, might be disposed, war with therefore, military service, counsel evasion and were all familiаr Bund Command No. 37. with Government, analysis, That last relied, to case, upon promulgation its of Bund Command *13 make judge that trial 37, understood, No. and so plain seems th.e charge jury, to the to from his which exception was taken assigned and was as In error. that he said: “There have been numerous references in the evidence arguments and the of counsel to a test case said to have proposed by been the defendants or some of them to de- validity (i) termine the of Section 308 of the Selective Training amongst Service Act which states other things that the mem- policy Congress it is that Bund not men in employed bers be to fill vacancies created employment being drafted into armed service. I*} charge you you that if from the should believe evidence/ them, test defendants, any proposed that or to this)” law,\ to to violate the conspiring law counsel someone their test then the fact that was make a easel purpose them,) charge here presented against is no defense to are I that offense with which these repeat defendants is a others charged conspiracy counsel to evade States, in the armed forces of United and such an if a fact did complete, offense would be the defendants unlawfully knowingly or confed- conspire, combine service, and together to counsel others to evade such erate in- if a honest true had bona fide this is even defendants conspiracy if there to make a test case. For tent defendants, them, having as its amongst these Law, know- the violation of Service object the Selective you is immaterial ingly, the reason violation such question guilt their your consideration of the (Italics supplied.) innocence.” fides of the honesty and the bona defendants'!
Here immaterial; the fact that desired is said testf law is said be immaterial. constitutionality | Command No. is it stated Nowhere with-j to evade counselling amount more, does not out mili-| innocentJ¡ Mingled with instructions tary service. intention the con- exсuse, to test were no motives are statements excuse, law was no stitutionality of the conspiracy there is a these not excuses where are knowingly service. The to counsel evasion Í contradictory.uOne with inno- mutually statements are unconstitu- 1 motives, honestly who believes law is cent may counsel and, therefore, obligatory, well tional *14 shall not obeyed; the law be that its command shall that valid, a shall held resisted until court have but this be knowingly not stealthily guile, counselling, charged its Thus that innocent having evade command] validity motives and a test law desire to defense, court added: “In I regard case, the matter of a atten- your test call fact made, tion to the that no test case was ever nor is any any legal action pre- there evidence that was ever that 37, by and the further fact Bund Order No. its pared, until very language, opposes military service this and all laws, national, which the Bund considered other State discriminatory, were repealed. course,
“Of if you beyond believe a reasonable doubt any defendants, them, knowingly and un- lawfully conspired to counsel evasion of the Selective Law, Service and the matter test of a merely case was subterfuge divert attention from their real you purpose, should find such guilty charged.” defendants
This final statement seems to mean nothing short of this, when taken connection with what just preceded it: If they defendants had innocent motives are nonetheless if guilty; guilty had they, course, motives are qould guilty. It is somewhat difficult to see how jury reach other than guilty. a verdict of From what has been it will said above that we seen are of opinion, first, promulgation and communi- cation of Bund Command No. 37 was not in itself a coun- sel to evade; second, that general evidence of the disposition the petitioners either towards the Govern- ment of the United States or towards the Selective Service Act did not make the such; third, Command evidence oral petitioners statements of the various meetings at meetings committeе and unit of the Bund did not supply finding, for a beyond basis a reason- counselling, able doubt, intending counsel, or con- *15 spiring counsel, evasion of service within the § of 11 of are of there- meaning view, the statute. We the fore, that, Government, the the de- on the case made acquittal, fendants were to the entitled direction which moved. in the evidence and
Other errors admission of The charge assigned petitioners. of the court are unnecessary to expressed pass views we have make it upon alleged these errors. cause is remanded to judgment
The is reversed and the proceedings conformity District for further Court opinion. with this concurring. Black,
Me. Justice reasons, certain emphasizing I add a few words wish to to concur the Court’s others, prompt which me among the evi- ground on the judgments these reversal of the de- conviction of support dence insufficient to was fendants. the defendants prosecution prove tried to the Bund to evade the Selec- the members of
counseled the as- necessarily upon case rested tice Service Act. Its subject the Bund were that members of sumption that- if Bund members that Act. It follows under draft Act, draft under the no lawfully subject per- not Bund members to this advising convicted for could be son indispensable No. an element Bund Command effect. case, took the position government’s in the subject “in the to draft because Selec- members were rights mem- citizenship of the Bund Law the tive Service unconstitutionally severed.” This same . are bers . . seasonably urged raised and question crucial argued here. I think the evi- below, and Since courts I am not com- inadequate support judgments, dence challenge. grave pass constitutional pelled .496
Nevertheless, fairly these defendants’ conduct cannot be appraised understanding without an of the statutory provisions against which they vehemently protested. For testimony as to these protests was a part vital against evidence them —without that part of the evidence they could not possibly have been convicted. It is neces- sary distinguish objections between honest directed at legitimate wrongs, and sham protests only obscure the real purpose. Language and actions of these defend- ants which is crucial to their judged convictions must be light in the of the fact that it followed passage of the Selective Service which contained following pro- visions. *16 (a) (b)
Sections 8 of the Selective Act, Service 54 Stat. 885, 890, provides that persons who have been drafted honorably into and discharged from military and naval high service shall be accorded preferential rights in regard reemployment to their by public or by private employers. in Congress declared these sections that such an ex-service man must be restored to position his former though as he furlough had “been on or leave of absence during pe- his training riod of the land forces,” or naval and that he should be so restored to his job former with- seniority out loss of or other privileges regular accorded employees. (i) Section 308 of Act, the however, declared
“It the expressed policy Congress that when- vacancy ever a is caused the employment rolls of industry business or by reason of induction into the serv- ice of the United States of an employee pursuant to the provisions of this Act such vacancy shall not be filled by any person who is a member of the Communist Party the German-American Bund.”
After the passage this Act, these defendants found themselves this position. It was announced that Bund subject members were to draft to serve on the battlefront they seriously injured or lose their lives. might where be said to they found that the law under were They employers reemploy subject draft, commanded discharged from honorably had other citizens who been that when a Bund service, provided but the law the same service, an came back after an honorable with member him anywhere give could discharge, person no honorable violating policy express without reemployment Congress. legiti- argued that defendants had no
It has been these protest against provisions these reason to because mate they obviously and amounted to no were unconstitutional admonition; an admonition but more than an legislative body highest nation. sounded these defendants should suggested It also been has protested proscriptive provi- known both that have and that Courts was unconstitutional sion of of the Act parts leaving sever it from other would constitutionally subject to draft. But members Court has said legislature impose upon laymen, could not thus
“The prosecution, duty severing criminal peril at resolving and of thus statutory provisions important with to the questions respect scope constitutional to which even regulation yet courts are not field of *17 Cahoon, Smith v. 553, 283 U. S. 564. accord.” in all we conduct of these defendants When view the language appears to been setting, vigorous their have this condemnatory discriminatory if more little, any, language than pre- Service Act of the Selective section legislation Court with reference to by used this viously The of their protest whole tone pattern. of a similar expression: by their graphically sounded Military Duty! Exempts Draft Rights “No Civil —No Inglis v. Trustees Sailors Members!” Cf. 498 Harbour, legislation 99, 125, 168, 169. As to
Snug 3 Pet. Court said: setting, a similar has having avocations, all all pursuit happiness “. . . positions, open every one, are alike . . . honors, all rights equal of these all are before protection Any deprivation suspension any rights or of these law. punishment, and can be in no other- past conduct is A legislative bill attainder is act wise defined. ... a judicial . punishment which inflicts trial. . . without a generally against These bills are directed individuals may name; against but be directed whole class.” Missouri, Cummings 277, v. 321-323. See also Wall. Garland, Ex parte Wall. 333. agree
I cannot that the convictions of these defendants can be sustained on the basis of the evidence presented weighed prosecution, along with that section of the stigmatize honorably Selective Service which would job hold discharged unworthy soldiers as and earn a living. Rutledge. Justice
Mr. I judgment concur Court’s opinion the, to the effect that the evidence is insufficient to sustain the I think that conviction. is true whether “evade,” as used in 11 Training of the Selective and Service Act of species fraudulent means a conduct or willful refusal induction. resistance of Without Command No. 37 But collapses. the case one sentence in it bears pos- sibility of as counseling evasion, construction whether in of refusal or sense of artifice fraud. That sentence conditional, absolute. whole command, in my judgment, is no more than vehement protest against 8§ political (i), sheer discussion. More than this is necessary. Mr. Chief Justice Stone, dissenting. Reed, Justice Mr. Justice Douglas, Mr. Justice
Mr. and I Jackson think the judgment should be affirmed as *18 shown who is not than Schneller other petitioners all conspiracy. in the participated to have Ger- of the leaders and local national were Petitioners up was made membershiр whose Bund, American man They have descent. nationality or of German persons Selec- of the conspiracy to violate of a been convicted a imposes 1940, 54 Stat. Act tive Service counsels, knowingly “who any person penalty criminal in the registration or service to evade aids, or abets another forces.” naval land or con- and others charge petitioners
The indictments Bund among the members to distribute spired Order known Bund document as country a throughout urge those counsel, direct and 37 “which would No. made known should the contents
whom land or naval forces resist, and refuse service evade, ostensibly pub- Order No. 37 States.” of the United against by adoption Bund of the protest as lished an amendment to the Selective (i)8 Congress §of Act, which declared: Service policy Congress of the that when- expressed
“It is the employment any caused in the rolls of vacancy is ever industry by reason induction into the service business employee pursuant of an to the pro- United States vacancy Act such shall not be filled of this visions member of the Communist Party is a or the who person Bund.” German-American in the printed 37 was German language, No.
Order of it translation was submitted English jury. an calling attention to the fact After that all citizens who thirty-sixth year their passed were required have register, Service it continued, the Selective complied order must be with unhesitatingly” “This added:
“An induction into the is not justified, in as far as concerns members Ger- American
500 citizenship in the
mans, for Selective Service Law of Bund members and the defenders of Germandom rights unconstitutionally are severed!” It concluded: man, if
“Every can, military duty he will refuse to do country until this and all other laws of the or the law of mem- citizenship rights States which confine the Bund are bers revoked! fight
“We will to establish a precedent servile matter!” only questions
The decision are substantial our jury rightly whether the could find from the evidence that Bund Order No. 37 did fact counsel “another to evade registration or service the land forces,” or naval whether petitioners’ conspiracy give such advice was in the circumstances unlawful. contentions are that the conviction cannot be sustained because advice 37, “every Bund Order No. man if he can will refuse military duty” to do until law offensive to the Bund repealed, cannot be taken to counsel the evasion in the military forces and alleged because the con- was not spiracy unlawful since the only Bund Order coun- refusal to do duty selled as a means of initiating to test the validity § a case (i) the Selective Service Act, which is a lawful purpose.
There is abundant evidence showing a pur- consistent pose of the Bund and Bund members promote in the States the interests of United Nazi Germany. It is not denied, be, and could not there is ample evidence jury which the could from have found that the Bund petitioners in members, and particular, were opposed to Germany with and hostile war to the Selective Service legislation of 1940 because wished prevent raising army for against of an a war Germany. It was theory Government, of the in presenting its case, respondents upon seized the proposed legislation, which
CrcO (i) 1940, of the Service became Selective ready agitation among implement propaganda hindering friends, members and their as a means Bund drafting army fight against delaying of an that Bund Germany. position The Government’s circulated petitioners diligently Order No. which among members, conspiracy, was the product members petitioners and the means counselled in the armed evade service forces. *20 denied, cannot be admitted, It to be and indeed it seems con- gives that the evidence to the Government’s support pur- inclination the had the petitioners tention that operation the pose to members to obstruct persuade Bund Bund Order No. 37 Act, of and that the Selective Service end. But accomplish was their it chosen means military duty,” advice to “refuse to do is insisted that the among of No. 37 given by the distribution Bund Order an incitement age, draft was not Bund members of military proscribes. which the statute “evade” of ultimate arbiter the dictionary to the as the Appealing construction, it that “evade” connotes statutory is said by characterized artifice which is fraudulent or conduct “escaping slipping or idea of craft, suggests or the to or refusal to do to resistance opposed from” as away duty, which Bund order counselled. military the dictionary the ascribes a word meaning which If the in controlling to be deemed the standing in isolation is it appears, which the word of a construction statute to the Latin importance to refer to be of some would seem go meaning pro- “evade” as or of the word derivation recognized usage, away from, and to its modern also ceed “avoid,” or the of dictionaries, synonym as the by means, by any or other as byor force by effort “escape” draftsmen dexterity.1 As the by artifice, craft or well as dictionary following of word “evade”: definitions 1 The are artifice; away by get from by eludе or Wagnalls: avoid Funk & “To limit usually the application statutes do of the only some of its common with- meanings chosen word so, their indicating purpose word, out do read its statute, far legis- context more revealing arbitrary than the selection purpose lative of one its dictionary meanings to the exclusion of others which are applicable. equally
Here statute shows its face that the word in 11 meaning “evade” is used escape avoidance or from service either failure or the refusal pérform duty would otherwise result in the service, performance fraud, craft, means of artifice, meeting requirements of the Selective 11 imposes Service Act. Section criminal penalties upon . person “charged duty . . with the carrying out any of provisions of this Act . . . who shall know- ingly neglect fail or to perform duty.” such But also imposes penalties upon any person such shall know- “who ingly make, or be a party making, to the any false, improper, registration, or incorreсt classification . . . *21 any person knowingly who shall make, or be party of, any making to the false statement or . . certificate .” provides It then for like application of the any Act to “who otherwise person registration evades or service in naval the land or forces or of any the requirements of Act, or who knowingly counsels, aids, this or an- abets registration to evade or other service in the land or naval force; from, craft or impending evil; save oneself as an as, to evade argument an escape; or a crisis.” Webster: slip away “To to ... get away by artifice; from by dexterity, to avoid subterfuge or in- genuity escape avoid, ... by or often the use skill, of dexterity, escape or by contrivance.” Oxford: “To contrivance or artifice from avoid, ... save oneself from ... ‘go elude. Nonce-use: out of. ” Opposed Century: to invade.' by “To avoid effort contrivance; or escape any way, from by or elude in dexterity, artifice, stratagem address; slip or away from; get way out the escape; of of ... slip away.” (Italics Act.” any requirements or the of forces of supplied.) phrase “otherwise from the use of the implication or refusal the acts of omission plain
evades” is per- duty and acts of ostensible prescribed perform equally like and the are by formance false statements military of recognized by the as modes of evasion statute thus Act. It is requirements or of other intended to evades” was that the “otherwise phrase clear by include both of evasion whether effected breaches types acts, either fraudulent and duty deceptive or false' or successful, if would result in avoidance which, these all In addition to from service. escape (by 11 penalizes evasion one who otherwise § modes of Thus, on mode) (avoids) service. face other evades respondents saying there is no basis for of the statute because counselled penalties elude its can military service escаpe avoid, i. evade, e., members to by false rather than refusing perform military duty There is no occasion statements, artifices, stratagem. statute, a more “evade,” as used giving the word in its meaning recognized than or a narrower strained dictionary 11, which is also identical with context § definitions. this conclu- legislative history supports as there is
Such of the bill which Burke, one of the authors Senator sion. hearings at the Service the Selective became Af- Military Committee on bill before Senate on prohibiting provision fairs, stated urged another evasion, “where one counselling applied it while obey the law but to refuse to repeal of not to seek Committee Hearings, the law.” Senate remained *22 Sess., 156. Cong., p. 3rd Section Military Affairs, 76th 1917, Draft Act of 6 of the § 11 derived from Selective was who “evades any person 80, penalized 40 Stat. Act.” In requirements of this to evade another
aids 504 States, 28,
Fraina United 255 F. Fraina was v. indicted 332 and under of the Criminal Code 6 of §§37 § Act of 1917 for with conspiracy the Selective Service others . . “counsel . induce . . divers ... persons . requirements . . the of” the evade . Selective Service The Court affirmed conviction where jury Act. speech found the accused made order to counsel objectors” and induce certain “conscientious “to refuse to bound, accept act law, or refuse to refuse duty required by do their which is this law.” Thus, be adoption present fore the of the Selective Service itAct, determined that one judicially was who refuses to comply law requirements with of the “evades” the law, and one who counsels another to refuse accept the law duty required or to do his which is the law can be found him guilty of it. inducing to evade We must take it the term Congress, adopting “evade” from § 6 of the it in act, using earlier draft like context 11 of § Act, the 1940 and confirmed adopted judicial construc of the appeared tion term as Sessions 1917 Act. Romadka, 29, 145 U. 41-42; v. S. Manhattan Properties Co., Irving 320, Trust 291 336; v. U. S. United States v. Co., Ross, Elgin, 492, J. & E. R. 298 U. 500; S. Missouri v. 72, Battery Shimadzu, U. Electric 75; 299 S. Co. v. 307 U. 14. S. inescapable
The conclusion seems that petitioners, counselling Bund members to refuse to military duty, do of military service, counselled evasion and that the jury’s 11 verdict of violation is therefore sustained by § the less so evidence. This is because the Bund order counselled members of the Bund to mili- to refuse do tary (i) repealed. § service until Bund Order No. published and by petitioners 37 was distributed after the (i) Act. enactment of Its counsel therefore was to violate the statute by evading military service, not- withstanding suggestion the order’s that the refusal do military duty might repeal cease whenever occurred.
505 the judge jury, rightly think, The trial instructed we fide intent no that “bona honest make a test case is amongst saying: “If these defense,” conspiracy there was defendants, object or any them, having as its the viola- Law, knowingly, tion of the reason Selective Service your immaterial in you such violation is considera- guilt Plainly question tion of the of their or innocence.” validity test one would assail the of a statute who violаting do so its here only by provisions, case can registration or knowingly counselling another to evade or the armed forces. One who thus evaded service could not defend evasion of counselled its ground that he violated order test constitutionality. He nevertheless does the act which the intended to do it even and nonetheless prohibits statute statutory was to establish that though purpose his There is no freedom to is unconstitutional. prohibition with be- impunity merely to violate a statute conspire The constitutionality prohibition is doubted. cause its any case, infringed by intended act is the statute proves to be unless the doubt imposes its sanctions the law well founded. assailing no foundation for laid petitioners
Here 11 of their doubts of constitu by reason validity §of urge No one can the unconstitution (i). of 8 tionality § applicable he shows until is a statute ality of Parsons, by it. 114 injured Marye he v. him and that Judges, 405; Tyler 179 U. S. Collins v. 325; v. U. S. Emmerson, Texas, & 288; U. S. Roberts Co. v. 223 Schaefer Pfost, 50, Utah Power Co. 286 U. S. 54, 55; U. S. v. 271 Authority, Valley Tennessee 297 U. S. Ashwаnder v. 165; Co., 531, Ala 537; Neilston 311 U. S. 324; Voeller v. ante, McAdory, Labor p. Federation v. 450. State bama It does not no evidence. appear introduced Petitioners gave up employment them because of any of ever United pur- into the service States their induction Act, were ever to the Selective Service suant any employment refusal of be- or threatened with refused in the Bund the Communist membership of their cause though be deemed un- (i) And even were to Party. *24 not applied petitioners, would constitutional constitutionality relieve petitioners § or affect For 14 consequences § from the of their violation 11. Act, “If (b) provides any provision of the Act or application any person circumstance, thereof is invalid, Act, held the remainder of the and the application provision persons circumstances, such other shall thereby.” not be affected Powell, People
The doctrine of