The opinion of the court was delivered by: LEAVY
This defendant, Sheldon Maurice Anderson, was indicted by a Grand Jury in this District and Division, the charging part of the indictment being as follows:
'That Sheldon Maurice Anderson, * * * on or about the 18th day of April, 1945, at Fort Lewis, in Pierce County, State of Washington, then and there being, did knowingly fail, neglect and refuse to perform a duty required of him under the Selective Training and Service Act of 1940 and the Rules and Regulations issued thereunder, in that he * * * did then and there refuse to submit to induction and to be inducted into the Armed Forces of the United States as directed and ordered so to do by Spokane City Local Draft Board No. 2 of Spokane, Washington, the said Local Board then and there having authority to make such order and direction;'
After the defendant was brought into court for arraignment, he being an impecunious person and unable to secure counsel, the Court appointed John H. Binns, Esq., a member of the Tacoma bar, to represent the defendant. Mr. Binns thereafter filed a demurrer to the indictment, challenging it upon two grounds, to-wit:
1. That it does not state facts sufficient to constitute a crime.
2. That the above entitled court has no jurisdiction of the defendant or the subject matter of the action.
This matter is now before the court for disposition on the defendant's demurrer, and the first ground thereof is overruled, but the challenge as to the jurisdiction of this court of the offense charged must be sustained.
Specifically, the charge contained in the indictment is that the defendant refused to submit to induction into the Armed Forces of the United States, as directed and ordered so to do by the Spokane City Local Draft Board No. 2, of Spokane, Washington.
During the course of the argument on the demurrer, it was developed that the defendant actually responded to the order of induction by the Spokane Local Draft Board, and accompanied a group of draftees from Spokane, Washington, to Fort Lewis, Washington. The court takes judicial notice of the fact that Spokane is not within its jurisdiction, but is located within the jurisdiction of the United States District Court for the Eastern District of Washington. Fort Lewis is located within the jurisdiction of this court. While at the Fort and undergoing the final steps of his induction, the defendant declined to take the oath, unless he were given the assurance that Army regulations concerning vaccination would be waived as to him. Such assurances were denied and he was permitted to return to Spokane, Washington. Subsequently he was indicted in this Judicial District.
It is the contention of the Government that the defendant's failure to submit to induction into the Armed Forces after his arrival within this Judicial District fixed the venue and jurisdiction of the offense herein.
Taking the language of the indictment at its face, the precise question presented is: Of what offense is the defendant accused? The Government admits that the defendant is charged with refusing to submit to induction as ordered and directed to do by his Draft Board and then further contends that 'induction' is made up of a number of separate steps, and that the final steps necessary to complete it in this case happen to be in this Judicial District by reason of the fact that Fort Lewis is located herein, and that, therefore, this Court has jurisdiction of the offense charged. A careful reading of the Selective Training and Service Act of 1940, and the Amendments thereto, Title 50 U.S.C.A.Appendix § 301 et seq., together with the regulations promulgated under the provisions of the Act, does not sustain this contention. On the contrary, it clearly fixes the jurisdiction of the courts in reference to violations such as here involved, as being in the place where the local draft board is located.
Passing upon this demurrer naturally calls for a construction of the constitutional rights of the defendant under the 6th Amendment providing for trial 'by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law,' and to give application to this constitutional provision calls for a construction of the Selective Training and Service Act and the Regulations in reference to jurisdiction.
The demurrer to the indictment presents an issue of far-reaching importance because it is elementary in criminal law that if the court is without jurisdiction of the subject matter its proceeding is a nullity. Even the consent of the accused can not confer jurisdiction, and it is an issue that can be made at any stage of the proceedings, or raised after conviction and execution of judgment by way of Writ of Habeas Corpus. It is not only a matter of great importance to the individual here involved, but might readily involve a great number of prosecutions that arise by reason of the criminal provisions of the Selective Training and Service Act and Regulations, which call for an interpretation of them in reference to the jurisdictional question here presented. It is for this reason that I have endeavored to examine carefully the provisions of the Act, itself, and the Regulations to ascertain the intent of Congress in its enactment, and, likewise, the intent of the executive department that promulgated the Regulations, in reference to fixing jurisdiction.
Congress, in enacting this legislation and providing for the penalties, in Section 311, with great particularity provided: 'The district court of the United States having jurisdiction thereof,' would be the tribunal to try offenses, and that 'no person shall be tried by any military or naval court martial in any case arising under this Act unless such ...