The final contention of defendant is that the order of induction was invalid in that it violated the Fifth and Thirteenth Amendments to the Constitution of the United States in depriving him of due process and equal protection of the laws.
Defendant frankly concedes that the Draft Board had properly classified the defendant, had properly, legally, and exactly followed the Selective Service Law and Rules and Regulations made thereunder in its dealings with this defendant; had properly processed him for induction; that it had no control over army policy or over defendant's future treatment in the army or the unit to which he might be assigned. Defendant urges that the induction order is invalid because the ultimate effect of the order to appear for induction into the army would be service in a segregated unit in violation of his constitutional rights. This position is taken despite his further concession that the determination of army policy and assignment of inductees to different units is vested by law and is the province of the Secretary of Defense, the Secretary of War, or the combined Chiefs of Staff.
Simply stated, his complaint is against Army Officials and not Draft Board Officials. He argues that the court should at this point determine as a fact the treatment he would have received if and when inducted. I am being asked to determine the prospective treatment which would have been accorded this defendant after completion of the Selective Service process which is the only matter before me. Whatever constitutional rights or privileges might have been violated were only possible of occurrence after the process of induction had been completed. That the process of induction would ever have been completed is not definitely certain. He might have been refused for military service by the Army since under the provisions of Section 454(a), Title 50 U.S.C.A.Appendix- 'No person shall be inducted * * * under this title * * * unless and until he is acceptable to the armed forces * * * '. See also Billings v. Truesdell, 321 U.S. 542, 64 S. Ct. 737, 88 L. Ed. 917.
It has long been an established doctrine of constitutional law that courts will determine constitutional questions only on specific and concrete problems presented in the facts of the particular case. A footnote to the opinion of Mr. Justice Reed in the case of United Public Workers v. Mitchell, 1947, 330 U.S. 75, at page 90, 67 S. Ct. 556, 564, 91 L. Ed. 754, sets out this doctrine clearly and forcibly. 'It has long been this Court's 'considered practice not to decide abstract, hypothetical or contingent questions, * * * or to decide any constitutional question in advance of the necessity for its decision, * * * or to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied, * * * or to decide any constitutional question except with reference to the particular facts to which it is to be applied, * * * .' Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S. Ct. 1384, 1389, 89 L. Ed. 1725 (1734), and cases cited. See Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 67 S. Ct. 231 (91 L. Ed. 128).'
Also pertinent to a decision in this case is Mr. Justice Reed's language, 330 U.S.at page 90, 67 S. Ct.at page 564 of the same opinion that 'It would not accord with judicial responsibility to adjudge, in a matter involving constitutionality, between the freedom of the individual and the requirements of public order except when definite rights appear upon the one side and definite prejudicial interferences upon the other.'
There appear no facts in this case defining rights of this defendant on the one side and prejudicial interference of such rights by anyone upon the other. I have no way of knowing in this case how the defendant would have been treated in the army or as a member of the armed forces, if, indeed, he had been accepted for military service. The presence of so many imponderables precludes an intelligent determination of or action upon issues involving asserted constitutional rights. I have before me only the order of the Local Draft Board Officials and the refusal of this defendant to obey. No showing has been made in this case of any violation of constitutional rights or privileges of this defendant by that order. Beyond that I cannot go.
Defendant's motions for judgment of acquittal, therefore, must be denied.
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