UNITED STATES
v.
BOLTON
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The court held that the constitutionality of the Selective Service Act of 1948 is settled law and any challenge to deployment in an undeclared war is premature.
Appellant was convicted for wilfully refusing induction into the armed forces under the Selective Service Act of 1948. He was sentenced to concurrent …
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PER CURIAM.
The appellant was convicted after trial to the court, a jury having been waived, upon an information which charged in two counts that on different dates he wilfully refused to report for induction into the armed forces of the United States as ordered by his local draft board, thereby violating the Selective Service Act of 1948, 50 U.S.C.A.Appendix, § 451 et seq. He was sentenced to imprisonment for a term of a year and a day on each count, to run concurrently, and is serving his sentence at Danbury, Connecticut.
The sole ground upon which the appellant attacks his conviction is the asserted unconstitutionality of the Selective Service Act of 1948. He concedes that the Supreme Court has upheld the validity of a prior statute requiring compulsory military service, Selective Draft Law Cases (Arver v. U. S.) 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, and that at least one Court of Appeals has held constitutional the 1948 Act. United States v. Henderson, 7 Cir., 180 F. 2d 711, certiorari denied 339 U.S. 963, 70 S. Ct. 997, 94 L.Ed. 1372.1 But he argues that the question should be reconsidered, and particularly because as applied in the present world situation men are drafted for war service in a foreign country, Korea, without any declaration of war by Congress and “without the consent of Congress.” If the constitutionality of a statute requiring compulsory military service is to be reconsidered, such reconsideration should be by the Supreme Court; we shall not presume to do so. So far as the argument of unconstitutionality invokes the possibility that the appellant may be sent to fight in Korea, we think it is premature. Any question as to the legality of an order sending men to Korea to fight in an “undeclared war” should be raised by someone to whom such an order has been directed, not by the appellant, who might never be ordered abroad for military duty, even if he reported for induction. Cf. United States v. Richter, 9 Cir., 181 F. 2d 591, 594, certiorari denied 340 U.S. 892, 71 S.Ct. 199, 95 L.Ed. 647.
Judgment affirmed.
. See also Cannon v. United States, 9 Cir., 181 F. 2d 354, certiorari denied 340 U.S. 892, 71 S.Ct. 199, 95 L.Ed. 647; Richter v. United States, 9 Cir., 181 F. 2d 591, certiorari denied 340 U. S. 892, 71 S.Ct. 199, 95 L.Ed. 647; Michener v. United States, 10 Cir., 184 F. 2d 712,
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Citator
Cited By (14 total)
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Simmons v. United States, 406 F.2d 456 (5th Cir. 1969)
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United States v. Claud Michael Kember, 437 F.2d 534 (9th Cir. 1970)
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Berk v. Laird, 429 F.2d 302 (2d Cir. 1970)
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Selective Draft Law Cases, 245 U.S. 366 (U.S. 1918)
- United States v. Henderson, 180 F.2d 711 (7th Cir. 1950)
- La Salle Steel Co. v. Nat'l Labor Relations Bd., 339 U.S. 963 (U.S. 1950)
- Henderson v. United States, 339 U.S. 963 (U.S. 1950)
- Richter v. United States, 181 F.2d 591 (9th Cir. 1950)
- Carroll et ux. v. Kelly, 340 U.S. 892 (U.S. 1950)
- Knauth v. United States, 340 U.S. 892 (U.S. 1950)
- Cannon v. United States, 181 F.2d 354 (9th Cir. 1950)
- Michener v. United States, 184 F.2d 712 (10th Cir. 1950)