The opinion of the court was delivered by: LINDBERG
Both Boscola and Smith having completed thirty years in the Navy as enlisted men were retired under the provisions of Title 34 U.S.C.A. § 431.
Both were prosecuted, pleaded guilty and were imprisoned in the Washington State Penitentiary for offenses committed several years after leaving active service in the Navy, Smith having been in the Fleet Reserve rather than on the retired list at the time of committing his offense. Boscola was charged with carnal knowledge and Smith with manslaughter.
Following conviction and imprisonment by the State of Washington the Navy concluded that both men should be ordered into active service under the provisions of 34 U.S.C.A. § 433
for the purpose of court-martial because of the serious nature of the offense in each case.
On the day they were released on parole from the Washington State Penitentiary each was met at the gate of the penitentiary by a Chief Petty Officer of the Navy and served with orders recalling them to active duty and directing them to report to the guard delivering the orders and proceed in his custody to the United States Naval Receiving Station at Seattle, Washington to await further orders. On March 7, 1956 each was ordered to restricted status, which status was defined in special instructions on the reverse side of their orders (See Exhibits 1 and 6), as follows:
'The limits of your restriction are defined as your barracks and the mess hall of the receiving station only.'
Boscola on March 7, 1956 and Smith on March 12, 1956 filed petitions or writs of habeas corpus alleging that each was being illegally restrained by the Navy and praying for release from further custody and detention.
Petitioners contend, first, that the Navy has no authority to recall them to active duty solely for the purpose of subjecting them to trial by general court-martial, and second, that the Navy does not have court-martial jurisdiction over a retired enlisted man for crimes such as allegedly committed by them several years after their separation from active service.
Respondents take the position with respect to petitioners' first contention that Boscola and Smith are on active duty in the United States Navy pursuant to competent orders, that the restraint upon their liberty is a moral restraint resulting from obedience to orders rather than a physical restraint as would constitute custody sufficient to support a discharge under a writ of habeas corpus. In their return respondents allege in paragraph IV:
'Petitioners are lawfully on active duty and are restrained of their liberty in no other way by any respondent before this court.'
Their position as to custody apparently is based upon the case of Wales v. Whitney, 114 U.S. 564, 5 S. Ct. 1050, 29 L. Ed. 277, which case still appears to be the law. However, before determining whether the facts as to restraint in the present cases are such as to make the rule announced in Wales v. Whitney, supra, applicable it would appear necessary to first decide whether petitioners have been lawfully called back to active duty by the Navy.
In their brief on this issue,
'Respondents concede that, if their orders to active duty be without authority, petitioners are entitled to release from active duty in the same sense that inductees (not lawfully inducted) or deportees (who are really entitled to be at liberty) are entitled to be released from the control of those who order their activities.'
It is agreed that the authority, if it existed, to order petitioners into active service is derived from 34 U.S.C.A. § 433 (March 3, 1915, c. 83, 38 Stat. 941; Aug. 29, ...