Bowen, Lowell R.

Digital Commons @ UM Law

Maryland Law ReviewVolume 16 | Issue 2 Article 5Military Jurisdiction over Discharged Servicemen -United States v. QuarlesLowell R. BowenFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Jurisdiction CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationLowell R. Bowen, Military Jurisdiction over Discharged Servicemen - United States v. Quarles, 16 Md. L. Rev. 143 (1956)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol16/iss2/5Comments and CasenotesMilitary Jurisdiction Over Discharged ServicemenUnited States v. Quarles1In May, 1953, five months after being honorably dis-charged from the Air Force, Robert W. Toth was arrestedat his place of employment in Pennsylvania by militarypolice on the charge of having murdered and conspired tomurder a Korean national while serving with the Air Forcein Korea. He was immediately flown to Korea to stand trialby court-martial, and while he was there awaiting trial, apetition for habeas corpus was made on his behalf to theDistrict Court for the District of Columbia,2 contesting theconstitutionality of Article 3(a) of the Uniform Code ofMilitary Justice. Article 3 (a) provides:"Subject to the provisions of section 618 of this title,any person charged with having committed, while ina status in which he was subject to this chapter, anoffense against this chapter, punishable by confine-ment of five years or more and for which the personcannot be tried in the courts of the United States orany State or Territory thereof or of the District ofColumbia, shall not be relieved from amenability totrial by courts-martial by reason of the termination ofsaid status."'Upon hearing on the rule to show cause,4 the DistrictCourt, Holtzoff, J., declined to pass on the constitutionalityof Article 3(a) since the court-martial jurisdiction had notyet been exercised, but issued the order on the grounds thatthe Uniform Code of Military Justice provided no methodof arrest or provision for preliminary hearing or removal,and that therefore the military police arresting Toth hadno greater power than private citizens. At the hearing onthe return of the writ,5 the court reaffirmed the statement1350 U. S. ... , 76 S. Ct. 1 (1955).2Toth v. Talbott, 113 F. Supp. 330 (D. C., D. C., 1953).150 U. S. C. A., Sec. 553(a) (1951 ed.). This section was intended toremedy such situations as Hirshberg v. Cooke, 336 U. S. 210 (1949), in whichthe Supreme Court invalidated court-martial proceedings against a naval en-listed man for an offense committed during a prior enlistment, although onlyone day had elapsed between discharge and reenlistment.'Supra, n. 2.'Toth v. Talbott, 114 F. Supp. 468 (D. C., D. C., 1953).MARYLAND LAW REVIEWthat the military police had no authority to arrest Toth andheld that even if they had such authority, they had none totransport him to a distant point for trial.' The writ., wassustained and petitioner discharged. Upon appeal, theCourt of Appeals for the District disposed of the lowercourt's ruling on the ground that the statute in making Tothamenable to court-martial jurisdiction implied the powerto apprehend and remove.7 The court discussed the consti-tutionality of Article 3(a) and held it constitutional.' TheSupreme Court granted certiorari to pass upon thisquestion.9The court refused to sustain the provision as an exer-cise of either the Congressional power to raise and supportarmies, to declare war, or punish offenses against the lawof nations; or the President's power as commander-in-chief;or as an exercise of martial law; and held that Congresshad no power to "subject civilians like Toth to trial bycourt-martial". ° The court, by Mr. Justice Black, reasonedthat:"... any expansion of court-martial jurisdiction likethat in the 1950 Act necessarily encroaches on the juris-diction of federal courts set up under Article III of theConstitution where persons on trial are surroundedwith more constitutional safeguards than in militarytribunals."'1In rejecting the argument that if the law were invali-dated, discharged service men would go unpunished forcrimes committed while in service, the court referred tothe Congressional hearings at which the alternative ofgranting jurisdiction to the federal courts was discussed,and said:"It is conceded that it was wholly within the con-stitutional power of Congress to follow this suggestionand provide for federal district court trials of dis-charged soldiers accused of offenses committed whilein the armed services. 12The argument that service discipline would be adverselyaffected was also rejected as unsound, and the court con-cluded:Albid, 469.Talbott v. United States, 215 F. 2d 22, 31 (D. C. App., 1954).8 Ibid, 26.United States v. Talbott, 348 U. S. 809 (1954).10 Supra, n. 1, 8.n Ibid, 4.Ibid, 7.[VOL. XVIUNITED STATES v. QUARLES"We hold that Congress cannot subject civilians likeToth to trial by court-martial. They, like other civilians,are entitled to have the benefit of safeguards affordedthose tried in the regular courts authorized by ArticleIII of the Constitution."' sMr. Justice Reed, joined by Justices Burton and Mintonin dissenting, found sufficient constitutional authority inthe power "To make Rules for the Government and Regu-lation of the land and naval Forces" granted in Article III,Section 8, of the Constitution. The effect of the decision,the dissent noted, was to destroy forever for all practicalpurposes a method that Congress deemed effective for crimecorrection. The decision released "without trial or possi-bility of trial, a man accused of murder", 4 and bringsCongress again face to face with the problem of punishingthose guilty of crimes committed while in a military statuswho escape detection until after discharge. The alternativeact giving jurisdiction to the federal courts will, doubtless,soon be passed by Congress, its constitutionality assured bythe dictum in this case, but for practical purposes the threemillion former servicemen now in civilian status, are be-yond the reach of the law, for any crimes they may havecommitted for which they were not at the time of commis-sion answerable in the state or federal courts.This case brings to the foreground one phase of thelarger problem of the extent to which civilian citizens areamenable to trial by military tribunal. 5 There are threeclasses of cases involved: (1) trial of civilians in a quasimilitary status; (2) trial of civilians in an area under mar-tial law; and (3) trial of civilians discharged from a formermilitary status."- Ibid, 8." Ibid, 9.5 As used herein, military tribunal includes courts-martial, military com-missions, and occupation courts in the nature of military commissions.Oourts-martial are provided for by Congress, U. C. M. J., Arts. 16-29, 50U. S. C. A., Secs. 576-593 (1951 ed.), under Article 1, Sec. 8, of the Constitu-tion. Jurisdiction does not exclude that of military commissions, U. C.M. J., Art. 21, 50 U. S. C. A., Sec. 581 (1951 ed.). Military commissions arediscussed In Madsen v. Kinsella, infra, n. 20, at 348, as follows: "In theabsence of attempts by Congress 'to limit the President's power, it appearsthat, as Commander-in-Chief of the Army and Navy of the United States,he may, in time of war, establish and prescribe the Jurisdiction and pro-cedure of military commissions,..., in territory occupied by Armed Forcesof the United States. His authority to do this sometimes survives the cessa-tion of hostilities." For trial of non-citizens by military commission withinterritorial United States, see infra, n. 16." For the amenability of non-citizens, see Ex parte Quirin, 317 U. S. 1(1942), holding that enemy agents entering the country in time of warwere properly tried by military commission.19561MARYLAND LAW REVIEWCertain civilians are amenable to trial by military tri-bunal because of their quasi-military status. Article 2 ofthe Uniform Code of Military Justice17 subjects to court-martial jurisdiction all persons serving with or accompany-ing the armed forces in the field in time of war; ". . . allpersons serving with, employed by, or accompanying thearmed forces without the continental limits of the UnitedStates . . ." and certain territories;" and ". . . all personswithin an area leased by or otherwise reserved or acquiredfor the use of the United States which is under the controlof the Secretary of a Department . . ." and which is with-out certain territories.19 An illustrative case of this class isthe recent case of Madsen v. Kinsella,° involving the trialin occupied enemy territory by military commission of acivilian wife who had accompanied her Air Force husbandinto the United States Area of Control in Germany. Inupholding her trial and conviction, the court stated:"'Both United States courts-martial, and UnitedStates Military Commissions or tribunals in the natureof such commissions, had jurisdiction in Germany in1949-1950 to try persons in the status of petitioner onthe charge against her."'"There seems to be little doubt that civilian citizens maybe tried by military tribunals in areas of the United Statesunder martial law. The limitation on military jurisdictionin this class goes rather to the situations under whichmartial law can be declared, the leading case being Ex parteMilligan.22 Milligan, a civilian resident of Indiana, an areaclaimed to be under martial law, was arrested by order ofthe military commander of the district and tried before amilitary commission for offenses against the United States.He was convicted and imprisoned under sentence of death,and upon petition for habeas corpus the Supreme Court1150 U. S. C. A., See. 552 (11) (1951 ed.).The territories excepted are "That part of Alaska east of longitude onehundred and seventy-two degrees west, the Canal Zone, the main group ofthe Hawaiian Islands, Puerto Rico, and the Virgin Islands, .... " Ibid.19Ibid, Sec. 552 (12).343 U. S. 341 (1952).2'Ibid, 345. See also: In re Berue, 54 F. Supp. 252 (E. D. Ohio, 1944),merchant seaman on military transport ship; McCune v. Kilpatrick, 53 F.Supp. 80 (E. D. Va., 1943) same, on troop transport ship; In re Di Bartolo,50 F. Supp. 929 (S. D. N. Y., 1943), civilian employed by a governmentcontractor operating a military installation within an area of militaryoperations.214 Wall-ace 2 (U. S., 1866). Note that unlike the Madsen case discussedabove, which arose under military occupation government, this is a casearising under an attempt to impose martial law in the United States.[VOL. XVIB. & A. R. CO. v. COACH CO.held that "Martial rule can never exist where the courtsare open, and in the proper and unobstructed exercise oftheir jurisdiction. It is also confined to the locality of actualwar.''2 In noting that the Constitution gave power to Con-gress to provide for trial of persons connected with themilitary service, the court stated, "All other persons, citi-zens of states where the courts are open, if charged withcrime, are guaranteed the inestimable privilege of trialby jury."24United States v. Quarles has clarified the law in thethird class of cases. Civilian citizens are not amenable tomilitary trial for crimes committed in their prior militarystatus, though they may be tried by the federal courts ifCongress so directs.LOWELL R. BowmRecovery Of Money Paid Under A Mistake Of LawBaltimore & Annapolis R. Co. v. Carolina Coach Co.1In 1950, under the terms of a sub-lease of a bus terminalfrom the Baltimore and Annapolis Railroad Co., appellant,to the Red Star Motor Line, both parties were to have jointcontrol over one designated ticket agent and the lessee wasgiven the right to pay the salary of this employee andto deduct this amount of money from its monthly rent pay-ment, should it elect to do so. Red Star paid the entiresalary of this employee until December 1950, when he re-signed and was replaced by another ticket agent, who waspaid entirely by B. & A. until January, 1953. During thefirst period (ending December 1950), Red Star deductedfrom its rent payments an amount equal to only thesalary of the ticket agent, even though it was paying hisentire salary. During the second period (from December'50 to January '53), B. & A. paid the entire salary and addedan amount of money equal to one half of the salary of the"Ibid, 127. An interesting case arising during World War II In thisarea was Duncan v. Kahanamoku, 327 U. S. 304 (1946), holding that"martial law" in the Hawaiian Organic Act, while authorizing vigorousmilitary action to preserve order and defend the Islands, did not authorizethe supplanting of the courts by military tribunals.Ibid, 123. For the separate but related problem of enforcement ofmilitary orders by the federal courts, see Hirabayashi v. United States, 320U. S. 81 (1943), upholding the conviction of petitioner for violation of acurfew order promulgated by the military commander pursuant to an actof Congress during World War II.1206 Md. 237, 111 A. 2d 464 (1955).1956]

Military Jurisdiction over Discharged Servicemen - United States v. Quarles

Abstract

Similar works

Full text

Available Versions

Digital Commons @ UM Law