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United States v. Bolton

United States v. Bolton, 192 F.2d 805 (2d Cir. 1951)
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Court
Court of Appeals for the Second Circuit · U.S. Courts of Appeals
Decided
November 27, 1951
Docket
Nos. 63, Docket 22091
Judges
Swan, Frank, Coxe
Citations
192 F.2d 8051951 U.S. App. LEXIS 2789

Opinion — Per Curiam

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.

1

. 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 ,

How later courts describe this case

Explanatory parentheticals written by citing courts — 3 in all; the most informative distinct ones are shown.

Cited by 22 cases

View all citing references →
1956: 11965: 11966: 11967: 11968: 31969: 61970: 51971: 11972: 319562026peak 1969 · 6

Relies on it most ⓘ

  1. Berk v. Laird429 F.2d 302 (2d Cir. 1970)
  2. United States v. Mitchell246 F. Supp. 874 (D. Conn. 1965)
  3. United States v. Richard Chandler403 F.2d 531 (4th Cir. 1968)
  4. Michael Waldo Simmons v. United States406 F.2d 456 (5th Cir. 1969)
  5. United States v. John Nelson Hogans369 F.2d 359 (2d Cir. 1966)
  6. United States v. Danny Ray Owens415 F.2d 1308 (6th Cir. 1969)

Most recent

  1. Mottola v. Nixon464 F.2d 178 (9th Cir. 1972)
  2. United States v. Lavin346 F. Supp. 76 (S.D.N.Y. 1972)
  3. United States v. Kirschke339 F. Supp. 834 (E.D. Pa. 1972)
  4. United States v. Claud Michael Kember437 F.2d 534 (9th Cir. 1971)
  5. United States v. Frank Michael Garrity, Jr.433 F.2d 649 (8th Cir. 1970)
  6. Mottola v. Nixon318 F. Supp. 538 (N.D. Cal. 1970)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 6

DepthCaseCited by
Selective Draft Law Cases, 245 U.S. 366 (1918) 311
Standard Oil Co. v. City of Tallahassee, 340 U.S. 892 (1950) 73
Richter v. United States, 181 F.2d 591 (9th Cir. 1950) 35
United States v. Henderson, 180 F.2d 711 (7th Cir. 1950) 32
Cannon v. United States, 181 F.2d 354 (9th Cir. 1950) 13
Michener v. United States, 184 F.2d 712 (10th Cir. 1950) 8

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