Theodore J. Wally v. Curtis W. Tarr, Director of Selective Service

Second Circuit

Theodore J. Wally v. Curtis W. Tarr, Director of Selective Service

452 F.2d 1204, 1971 U.S. App. LEXIS 6721

CourtCourt of Appeals for the Second Circuit

DecidedDecember 7, 1971

Docket421, Docket 71-2097

StatusPublished

Cited by1 cases

This text of 452 F.2d 1204 (Theodore J. Wally v. Curtis W. Tarr, Director of Selective Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Theodore J. Wally v. Curtis W. Tarr, Director of Selective Service, 452 F.2d 1204, 1971 U.S. App. LEXIS 6721 (2d Cir. 1971).

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Opinion

PER CURIAM:

We affirm Judge Bonsai’s order, in the District Court for the Southern District of New York, which denied Theodore J. Wally’s motion for a preliminary injunction to restrain the Director of Selective Service and the Local Board from inducting him into the Army.

Wally argues that section 20 of the Selective Service Act of 1948, as amended, 50 U.S.C. App. § 470, was reenacted in the 1971 Selective Service law of September 28, 1971. P.L. 92-129, 92d Cong., 1st Sess. Section 20 of the 1948 Act provided that “no person shall be inducted or ordered into active service without his consent . . . within ninety days after the date of its enactment,” unless a national emergency is declared. Thus Wally argues any induction prior to December 28, 1971 would be void. We find no merit to this contention.

For the reasons indicated by the First Circuit in Doyle v. Massachusetts Local Board No. 72, 451 F.2d 1002, decided November 17, 1971, it is altogether clear that the 1971 statute merely amended the laws relating to selective service; it did not in any way refer to section 20. There is no support for the claim that, by making amendments in 1971, Congress meant to reenact and reactivate the 90-day provision of section 20. As the First Circuit pointed out, had Congress wished to impose such a moratorium on induction, it surely would have done so in explicit terms. Accord Judge Whelan’s opinion in Kumley v. California Local Board No. 82, (C.D.Cal.) also decided November 17, 1971, and Avery v. Mills (N.D.Ill.), decided November 22, 1971.

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PER CURIAM:

We affirm Judge Bonsai’s order, in the District Court for the Southern District of New York, which denied Theodore J. Wally’s motion for a preliminary injunction to restrain the Director of Selective Service and the Local Board from inducting him into the Army.

Wally argues that section 20 of the Selective Service Act of 1948, as amended, 50 U.S.C. App. § 470, was reenacted in the 1971 Selective Service law of September 28, 1971. P.L. 92-129, 92d Cong., 1st Sess. Section 20 of the 1948 Act provided that “no person shall be inducted or ordered into active service without his consent . . . within ninety days after the date of its enactment,” unless a national emergency is declared. Thus Wally argues any induction prior to December 28, 1971 would be void. We find no merit to this contention.

For the reasons indicated by the First Circuit in Doyle v. Massachusetts Local Board No. 72, 451 F.2d 1002, decided November 17, 1971, it is altogether clear that the 1971 statute merely amended the laws relating to selective service; it did not in any way refer to section 20. There is no support for the claim that, by making amendments in 1971, Congress meant to reenact and reactivate the 90-day provision of section 20. As the First Circuit pointed out, had Congress wished to impose such a moratorium on induction, it surely would have done so in explicit terms. Accord Judge Whelan’s opinion in Kumley v. California Local Board No. 82, (C.D.Cal.) also decided November 17, 1971, and Avery v. Mills (N.D.Ill.), decided November 22, 1971.

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452 F.2d 1204, 1971 U.S. App. LEXIS 6721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theodore-j-wally-v-curtis-w-tarr-director-of-selective-service-ca2-1971.

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