Estep v. United States/Dissent Burton

Mr. Justice BURTON, with whom Mr. Chief Justice STONE concurs, dissenting.

The CHIEF JUSTICE and I think that the judgment of conviction in these cases should be affirmed, for reasons stated in Part I of Mr. Justice FRANKFURTER'S opinion.

We think that under § 10(a)(2) of the Selective Service Act, rightly construed, the registrant is required, on pain of criminal penalties, to obey the Local Board's order to report for induction into the armed forces, even though the Board's order or the action of the Appeal Board on which it is based, is erroneous. 'In order to obtain a judicial determination of such issues such registrants must first submit to induction and raise the issues by habeas corpus.' H. Rep. No. 36, 79th Cong., 1st Sess. (1945) 4. It follows that if the registrant is indicted for disobedience of the Board's order he cannot defend on the ground that the draft procedure has not been complied with or, if convicted, secure his release on that ground by resort to habeas corpus. The result is that such relief is open to him only if he obeys the order and submits to induction, when he is free to seek habeas corpus.

We do not find in the record of either case sufficient basis for reversal thereof on the grounds suggested in Part II of Mr. Justice FRANKFURTER'S opinion.