Appeal from the District Court of the United States for the Eastern District of New York.
Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
The appellant, a Negro, is a citizen of the United States who was inducted into the Army on December 19, 1942. He waived furlough and was sent immediately to Camp Upton at which the respondent, Col. Downer, is the commanding officer. By petition for a writ of habeas corpus the appellant sought release from the Army on the ground that he was inducted "as a member of a 'Negro quota'" in violation of the provision of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 304(a), prohibiting "discrimination against any person on account of race or color." The respondent made return to the writ, alleging that the appellant was held as a soldier in the Army, having been lawfully selected for service and duly and regularly inducted. By travers to the return the appellant reasserted that he was unlawfully selected for induction into the armed forces as a member of a Negro quota. After a hearing the district court quashed the writ and dismissed the petition for failure of proof.
The record discloses the following: The appellant duly registered under the Selective Service Act with Local Board No. 261, Jamaica, Long Island. He received from his local board an order dated September 8, 1942, to report for induction on September 18th. This order was issued pursuant to a requisition by the New York City Director of Selective Service which informed Local Board No. 261 that "Your Quota for this Call is the first 90 White men and the first 50 Negro men who are in Class 1A. * * * Separate Delivery Lists (Form 151) are to be made for the White and Negro registrants delivered." The New York City Director testified: "We receive a requsition from the government for so many white men and so many colored men for induction each month and then we break that list down among the local boards and that is on a proportionary basis and each board will be called upon to produce so many whites and so many Negroes for induction."*fn1 Desiring to contest the validity of the induction order based on the above-mentioned reuqisition, the appellant failed to report for induction on September 18th.By such failure he became a delinquent. Under section 11 of the Act, 50 U.S.C.A. Appendix, § 311, he was indicted for disobedience of the induction order. Thereafter his lawyers advised him that in order to raise the question of discrimination he must go into the Army, and the local board was informed that he was ready to go. It issued an order dated December 10, 1942, requiring him to report for induction on December 19, 1942. This order he obeyed. He was thereupon inducted and sent to Camp Upton for training. The testimony is to the effect that he was inducted as a delinquent and that a delinquent will be inducted "without any quota call" and without reference to his race or color. It further appears that requisitions were made upon Local Board 261 calling for 117 whites and 103 Negroes in October, 134 whites and 100 Negroes in November, and 174 whites and 97 Negroes in December; but that these requisitions related to men other than the appellant. The trial judge ruled that the relator had not proved that "he was inducted under any order which calls for so many whites and so many colored," and therefore had not succeeded in raising the question which the habeas corpus proceeding was intended to present for decision.
If the appellant was inducted as a delinquent, he became delinquent by refusal to obey the September induction order which was issued pursuant to the requisition for 90 whites and 50 Negroes for induction in September. Hence the requisition was a direct cause of his induction into the Army and constituted, we believe, sufficient proof of the allegation in his petition that he was inducted as "a member of a Negro quota."
The appellee argues that even if this be true, the record is barren of any evidence that the appellant was inducted or directed to report for induction ahead of men whose draft numbers were lower than his own, and therefore there is no proof of discrimination against him "on account of race or color." To this appellant's counsel replies that the existence of separate quotas for whites and Negroes makes it incredible that he was called for induction precisely in his turn under the draft; and that there was discrimination against him if he were called either sooner or later than would have happened in the absence of separate quotas.*fn2 If the appellant was called for induction later than his turn, his grievance seems to be that the military custody in which he now finds himself should have begun at an earlier date. But how does the fact that the Army should have had him sooner make unlawful its having him now? Delay in calling him may have resulted in discrimination against others who were called ahead of their turn, but we find it difficult to regard it as a discrimination making illegal the Army's present custody of him. Even if the induction practice had been conducted without separate quotas, as he claims it should have been, he would now be, as he is, in the Army. In failing to prove that the requisition under which he was called for induction resulted in calling him ahead of his turn in the draft, a majority of the court believes that the petition was properly dismissed for failure of proof that he was aggrieved by the discrimination, if any there was.
But the dismissal may also be sustained on broader grounds which we are inclined to discuss, since the parties have thoroughly briefed and argued the question of statutory construction and the question is an important one.
In arguing that the practice of calling for specified numbers of whites and Negroes for induction during a given month is contrary to the statute, the appellant relies upon the following language in section 4, 50 U.S.C.A. Appendix, § 304:
"(a) The selection of men for training and service under section 3 [section 303 of this appendix] (other than those who are voluntarily inducted pursuant to this Act) shall be made in an impartial manner, under such rules and regulations as the President may prescribe, from the men who are liable for such training and service and who at the time of selection are registered and classified but not deferred or exempted: Provided, That in the selection and training of men under this Act, and in the interpretation and execution of the provisions of this Act, there shall be no discrimination against any person on account of race or color: * * * ."
In interpreting and applying this language the Army's history of separate regiments of whites and Negroes must not be overlooked. Indeed, the appellant does not contend, and could not succcessfully do so, that after selectees are lawfully inducted under the Selective Training and Service Act of 1940 they may not be segregated into white and colored regiments. Since July 28, 1866 federal statutes have made provision for separate Negro regiments. 14 Stat. 332. And the same Congress which enacted the Selective Training and Service Act in September 1940 had passed in July of that year section 2(b) of the National Defense Act, 10 U.S.C.A. §§ 602 note, 621a, which is printed in the margin.*fn3 Also relevant to interpreting the language under discussion are provisions in section 3(a), 50 U.S.C.A. Appendix, § 303(a), to the effect that the men inducted into the land and naval forces shall be assigned to camps or units of such forces for training and service, and that no men shall be inducted until adequate accommodations for them have been provided.*fn4 Reading the Act as a whole and in the light of the Army's long established practice of segregating enlisted men into separate white and colored units, we believe that requisitions calling for a specified number of whites and a specified number of Negroes for induction during a given month and based on relative racial proportions of the men registered with a local board and subject to call for induction, is a necessary and permissible administrative procedure, and the regulations which sanction it*fn5 are not violative of the Act. The induction routine that has been established is calculated to supply men in conformity with the contemplated military organization which permits separate colored regiments. The Army executives are to decide the Army's needs, to provide accommodations and facilities for selectees and to induct them only when camps or units are ready to receive them. To hold that the provision in section 4 forbidding discrimination invalidates such induction routine would frustrate, or at least impede, the development of an effective armed force, the prompt creation of which was the very purpose and object of the Act.
Nothing requiring this result is to be found in the legislative history of the Selective Training and Service Act of 1940.As originally introduced the bill contained no provision forbidding discrimination on account of race or color. On August 23rd Senator Wagner proposed the amendment, which was incorporated into section 3, to the effect that any person regardless of race or color shall be afforded an opportunity to volunteer.*fn6 In debate he explained that this had nothing to do with segregation into white or colored military units.*fn7 The provision against discrimination which appears in section 4 was proposed by Congressman Fish on September 6th. His amendment, he stated, was intended to afford to soldiers drafted for induction into the Army the same assurance against discrimination that Senator Wagner's amendment provided for volunteers.*fn8 During consideration of the Fish amendment Congressman Andrews of the Military Affairs Committee informed the House of Representatives that the amendment seeks to do what the War Department already states it will do under regulations, namely, call Negroes for induction in accordance with the ratio they bear to the population.*fn9 And Congressman Thomason of Texas included in his remarks during the consideration of the Act a letter from the Joint Army and Navy Selective Service Committee which informed Congress that the selective service program contemplated separate white and Negro quotas and calls.*fn10
If the Congress had intended to prohibit separate white and Negro quotas and calls we believe it would have expressed such intention more definitely than by the general prohibition against discrimination appearing in section 4. Moreover, it is not without significance, we think, that the induction procedure which has been established has never been altered by congressional action, although the Act has been often amended since its original enactment. In our opinion the statutory provisions which the appellant invokes mean no more than that Negroes must be accorded privileges substantially equal to those afforded whites in the matter of volunteering, induction, training and service under the Act; in other words, separate quotas in the requisitions based on relative racial proportions of the men subject to call do not constitute the prohibited "discrimination". Compare cases dealing with discrimination claimed to be repugnant to the ...