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United States v. Rumsa

May 13, 1954

UNITED STATES
v.
RUMSA. RUMSA V. HERSHEY ET AL.



Author: Swaim

Before DUFFY, SWAIM and SCHNACKENBERG, Circuit Judges.

SWAIM, Circuit Judge.

This opinion disposes of two appeals by Antanas Juratis Rumsa, the first being an appeal in a criminal case and the second being an appeal from the order and judgment of the District Court dismissing Rumsa's amended complaint in an action to enjoin the defendants from inducting and causing him to be inducted and for a declaratory judgment.

No. 10894 - The Criminal Case.

We shall first consider the appeal of Rumsa from the judgment of the District Court entered on a verdict of guilty on an indictment which charged him with refusing to submit to induction into the armed forces of the United States in violation of Section 462, Title 50 Appendix, United States Code Annotated, and the prescribed rules and regulations thereunder.

The defendant was born in Lithuania on October 9, 1929, and resided there until sometime in 1944 when the Russians invaded that country and the defendant was forced to flee to Western Germany. In Germany he was placed in a labor camp and kept there until he was finally liberated by the American forces. On February 27, 1950, the defendant executed a printed form of Application for Immigration Visa and Alien Registration. This form stated that the defendant's purpose in going to the United States was "to reside" and that he intended "to remain permanently." This form also indicated that the defendant had had five years in elementary school and eight years in secondary school and that he was able to speak, read and write Lithuanian and a little English and German: The American Vice Consul approved this application and granted the immigration visa to the defendant as a displaced person pursuant to Public Law 774, 50 U.S.C.A.Appendix, § 1951 et seq. Pursuant to the authority granted by the United States on this application, the defendant was admitted to, and did, enter the United States on April 6, 1950, coming to Chicago, Illinois, to live. On August 12, 1950, he registered under Selective Service Act with Local Board No. 65, located at 63rd Street and Western Avenue in Chicago. A little more than a month later, September 15, 1950, the defendant filled out a Selective Service Questionnaire and on October 9, 1950, he was classified I-A (ready for service). On January 11, 1951, the defendant was ordered by the local board to report for physical examination on January 29, 1951.

On January 23, 1951, the defendant wrote a letter to the local board protesting his being required to report for a physical examination and asking for reconsideration of his case. He assigned as reasons therefor that: "Reporting for service would mean to leave my aged parents without effective help alone. It also would mean calling off my advanced studies at the University of Illinois, department of Mechanical Engineering. I am non-resident transfer student. I am there in my third semester. My health is not well." The defendant then asked that the board regard this letter as his application for "deferment from service" and that the board advise him as to "what shall be done regarding the physical examination."

The following day the local board, by letter, informed the defendant that he should report for this physical examination without fail. But instead of reporting as ordered, the defendant again, by letter, protested his being required to report and assigned as his reasons therefor that: (1) "Persons owing allegiance to some other countries cannot under international laws be drafted to other country's armed forces without the mutual agreement between the respective countries." (2) "Present Selective Service and U.S. Armed Forces practice is discriminating against aliens in ordering non-citizens of U.S. into service on equal basis with American subjects but not providing for equal opportunities. They are: Noncitizens are being drafted but are not being admitted as volunteers to U.S. Navy, U.S. Marine Corps, U.S. Army Reserve units, U.S. Officers training schools, ROTC units, etc., etc. (As a noncitizen I have been refused acceptance to U.S. Army Intelligence unit.)" (3) "Daily life of a foreign subject in U.S. discriminates against him, hence he does not enjoy the right to equal opportunity to seek for certain jobs, schools paying equal tuition as residents." Defendant, therefore, demanded that the local board either reconsider its prior order or provide him with the rights of which he claimed he was being deprived.

On January 29, the defendant, having failed to report for examination, was ordered to report to the induction center on February 15, 1951, for examination and induction as a delinquent. He reported, was given a physical examination, was determined to be fit for military service and was so informed by the local board. But he refused to submit to induction, stating "that he had served in the Army of other nations and would serve in the Army of the United States if hostilities began, but as the situation is at present time he would not enter the Armed Forces." It was then explained to the defendant that his refusal would constitute a felony and would subject him to severe punishment. On March 5, 1951, the defendant executed a Form 130, claiming relief from military service as an alien. This form provided that any alien claiming such relief from military service "shall thereafter be debarred from becoming a citizen of the United States." Upon receipt of this form from the defendant the local board classified him as IV-C "until indefinitely." But, on January 24, 1952, on the advice of the State Director of Selective Service that Rumsa was not entitled to a IV-C classification on Form 130, defendant's classification was reconsidered and was changed to I-A. The board, on March 14, 1952, ordered Rumsa to report for another examination on April 25. At this examination the defendant was again found to be acceptable for military service, his classification as I-A was not changed and he was so notified. He again, on May 3, 1952, executed and filed a Form 130 with the local board claiming exemption as an alien. One printed sentence of this form stated that he had not "been admitted to the United States for permanent residence." This was the first time this idea had been mentioned to the local board.

Long after the ten day period for taking appeals from the local board had passed the defendant attempted to have the local board reopen the matter of his classification. This the board refused to do. Thereafter, the defendant was ordered to report for induction on July 22, 1952, and again on August 21, 1952. It was on his refusal to submit to induction on August 21 that the defendant was indicted.

The defendant seems to contend that, since he is an alien, he cannot be required to submit to induction into the armed forces of the United States; that requiring him to be inducted violates international law and also violates the Fifth Amendment to our Constitution; that, further, as a temporary resident alien, he had the right to be deferred from military service by waiving the right ever to become an American citizen; that by his executing and filing Form 130, he did waive his right to ever become an American citizen; and that he thereby acquired the right to be permanently classified as IV-C, a right to exemption which could not thereafter be taken away from him even by a change in the law by Congress.

It is true that the Selective Training and Service Act which was in effect when Rumsa came to this country and when he first registered did provide that any citizen or subject of a neutral country should be relieved from liability for training and service if, prior to his induction, he had made application (Form 130) to be relieved of such liability. But in 1951 the Congress, alarmed by the international situation, determined that the safety of this nation required that more men be inducted for training and service. See legislative history of Universal Military Training Act in U.S. Code Congressional and Administrative Service for 1951, Volume 2, pages 1472-1521. On page 1512 of this history, in the Conference Report, we find the recommendation that the law should be so changed that "All aliens admitted for permanent residence in the United States shall be immediately liable for induction into the Armed Forces or the National Security Training Corps under the same conditions applicable to citizens. * * *"

There can be no question but that the Universal Military Training and Service Act as amended authorized the selection and induction of aliens who had been admitted to the United States for permanent residence. Section 454(a) of 50 U.S.C.A.Appendix, § 4(a) of the Universal Military Training and Service Act, as amended June 19, 1951, expressly provided: "Except as otherwise provided in this title * * * every male alien admitted for permanent residence * * * shall be liable for training and service in the Armed Forces of the United States * * *." And Section 456 of 50 U.S.C.A.Appendix, which gave to the President broad powers to exempt various classes of aliens, expressly provided: "* * * except that aliens admitted for permanent residence in the United States shall not be so exempted." This Act also provided, 50 U.S.C.A.Appendix, § 467(a): "Except as provided in this title all laws or any parts of laws in conflict with the provisions of this title are repealed." Such clear language leaves no ambiguity for interpretation. We may only apply such a law as it is written.

If the United States had made a prior treaty with Lithuania or an agreement with other nations providing that Lithuanian subjects or other aliens should not be inducted into our armed forces, such a treaty or agreement would be in conflict with the provisions of the Universal Military Training and Service Act as amended, and this later Act of Congress would prevail. Where such a treaty or agreement is in conflict with a later conscription statute enacted by Congress the treaty or agreement is thereby suspended insofar as it conflicts, and, therefore, cannot be invoked as a defense to a violation of the conscription law. Ex parte Blazekovic, D.C., 248 F. 327, 337; Ex parte Larrucea, D.C., 249 F. 981, 983. In American Jurisprudence we find the general principle and the exception thereto stated as follows:

"It is a general principle that an alien is exempt from military duty in the country in which he is residing. Nevertheless an alien is not necessarily exempt from military service by virtue of a treaty entered into before enactment of a Conscription Act, since a treaty, like any other law of the United States, may constitutionally be repealed or suspended by Congress. Whether or not an alien resident within the United States is subject ...


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