The facts in the case are simple. The petitioner is held at the Lompoc Barracks, Santa Barbara County, California, within the jurisdiction of this court, under the judgment of conviction and sentence imposed on July 26,1958 by a court-martial, convened at Camp Zana, Honshu, Japan. At the time, he was a civilian employee of the Armed Forces of the United States. He was charged with appropriating eight military payment certificates of the value of $50 each, was found guilty and ordered committed for four years and to pay a fine of $3,000. The sentence was later reduced by the reviewing authorities to two years and $3,000.

The proceedings in the military court have not become final. But I am of the view that, when a prisoner convicted by court-martial attacks the military tribunal’s jurisdiction, not only over the crime, but over him, no question can be raised as to whether he has exhausted his remedies through military channels. This, for the reason that he challenges the very basis of the court’s jurisdiction. And jurisdiction is the power to hear and ^determine. It is formed from two Latin words — juris and clictio — meaning to pronounce the law.

There is a phrase in an old California case which very effectively states that a judgment rendered by a court without jurisdiction is

And so the problem here is whether the court which convicted the petitioner had jurisdiction over him.

Jurisdiction

The petitioner’s contention that no such jurisdiction exists is grounded chiefly upon an opinion of the United States Court of Appeals for the District of Columbia. Much as I respect the members of that court, I am forced to disagree with the conclusion reached by the majority, a conclusion which the Court of Appeals for the Third Circuit and some District Judges have since ■declined to follow:

Before stating my grounds, I adTert to the fact that the recent trend of the decisions of the Supreme Court of the United States is to limit strictly the power of the military in time of peace. A decision rendered on January 12, 1959, is illustrative. In this, the Court follows an approach traceable to English tradition which was distrustful of the military except within their strict domain. While the case just referred to •does not help solve the problem before ■us, it exemplifies the strictness with which the power of the military will be interpreted. The case involved a sol■dier who, while in France, was convicted ■by a court-martial, discharged dishonorably and sentenced to prison for twenty .years. He was serving a sentence in the Army Disciplinary Barracks at Camp •Cook, California, when he was convicted by court-martial of the crime of conspiracy to commit murder. The offense occurred on June 10,1949. He was prosecuted under the provisions of Article of War 92, which provided that no person should be tried by court-martial for murder or rape

And the Court held that the soldier, while in prison in military barracks, could not, in peace time, be prosecuted by court-martial for conspiracy to murder. Mr. Justice Douglas [ 79 S.Ct. 281 ], in writing the opinion for the majority of the Court, stated that “we were at peace” at the time of the commission of the offense, although no treaty of peace had been entered into. Giving a broad interpretation of the term “peace-time”, he disregards the fact that the President’s proclamation declaring a state of peace was not issued until a later date. He concludes that to all intents and purposes, we were at peace since “the shooting war” had terminated:

Mr. Justice Harlan and Mr. Justice Clark dissented. Mr. Justice Harlan’s dissent is very interesting for it shows the interpretation that he places upon Reid v. Covert, to be discussed further on in the opinion:

The Problem before Us

We come now to the main problem confronting us, which is whether the provision of the law contained in the Uniform Code of Military Justice subjecting civilians to the authority of courts-martial for non-military offenses is valid. It reads:

The trial of civilians serving with the Armed Forces for non-military offenses is a practice which antedates the American Revolution. The British Articles of War adopted in 1765 placed civilians connected with the army under military discipline.

The American Revolutionary Army had a similar provision in the Articles of War adopted by the Continental Congress on June 30, 1775, which read:

The Articles of War enacted by the Congress after the Constitution was adopted, beginning with the enactment of April 10, 1806, and ending with the adoption of the present Uniform Code of Military Justice contained similar provisions.

In Reid v. Covert, the Supreme Court was confronted with the problem whether a wife charged with the murder of her husband, and who was not an employee of the United States, but merely ■accompanied her husband, could be prosecuted for a capital offense by court-martial. Four of the justices held that she could not. Two other justices concurred in the decision on special grounds, to which reference will be made further on in the discussion.

To my mind, the case decides only one matter, i. e., if we apply the words “accompanying the armed forces” to a wife so as to make her subject to military law, when she is charged with a capital offense, we are doing violence to her constitutional rights. The argument that the section insofar as it applies to civilian employees must also fall as lacking substance.

If a statute covers several categories, and the application to one category is found to be unconstitutional, the validity of the other categories, which are distinct and have a valid basis for separate classification, is not affected.

Mr. Justice Black’s opinion makes it plain that in matters other than capital or in the case of a civilian employee, the same ruling would not necessarily apply. The following quotations from the opinion indicate this clearly:

Mr. Justice Frankfurter, in his concurring opinion, states definitely that he does not understand the majority opinion to hold that a civilian could not be prosecuted — that only the trial of civilian dependents in a capital case in time of peace is in question, and that a wife, charged with murder, who is not a civilian employee, who may accompany her husband and receive such benefits as his wife, could not be tried by a military tribunal:

Mr. Justice Harlan, in his concurring opinion, similarly limits the scope of the decision. To quote this portion of his opinion:

If we limit this ruling to the facts before the court, we must conclude that the majority opinion in United States ex rel. Guagliardo v. McElroy did not interpret it correctly. Circuit Judge Burger has stated, in his dissenting opinion, strong reasons for not agreeing with the majority.

III

Congressional Power

I am of the view that the Congress of the United States has authority to provide for trial of civilian employees for non-capital, non-military offenses, of the type here involved, — embezzlement or misappropriation of government funds. If it did not we would be confronted with a very dangerous situation.

At the present time, in certain encampments, there are as many civilian as military employees. Wherever a United States military establishment has a base, from Casablanca to Reykjavik to Honshu, they employ civilian employees. What substitute is there if the military cannot try a civilian employee in a particular outpost for the theft of government property or other crimes against the government?

Years ago we had extraterritorial courts in certain foreign countries under rights granted by treaty. There was strong resentment for many years in China and other countries against the United -States because, as late as 1948, we maintained such courts, to which an American living in such country could resort for trial in a civil or criminal case.

Absent extraterritorial American courts, what would be the alternative? To try civilian employees before a foreign court whose concept of justice is entirely different from ours, or bring them to the United States for trial? The latter has been done in the case of treason.

But if we subjected the average civilian to the same procedure and compelled the Government of the United States to bring him to the United States, it would be an almost impossible task. We could not establish civilian courts to follow the military establishments with any practical success. It would mean that we would almost give to a civilian employee carte blanche to indulge in thievery of all kinds, and other non-military offenses. It would result in absolution, in advance, for many offenses because of the impossibility of dealing with them. Discharge from service would not be adequate.

Unless we recognize the right of these civilians to be tried by court-martial, for non-military offenses, we must grant them the right of trial by jury and the right to an indictment by a grand jury. This could only be done if all proceedings took place in the United States.

For we cannot transport an entire judicial system to every area in which, with a foreign country’s consent, we have military bases. An American civilian who goes to a foreign country has the protection of the United States. But that protection does not shield him from prosecution for a crime committed in a foreign country.

When one hires oneself out as a civilian employee to the Armed Forces, one acquires a number of benefits. He receives free transportation for himself and his dependents, his automobile and his furniture and household goods. The Government, to make for harmony and happiness, transports one’s family. It gives him special allowance for quarters, as it does to soldiers. It makes provision for children and establishes schools for them.

Presumably, a person becomes a civil employee of the military establishment because he desires to have the bene fits that come with the employment. No one forces him into it, as we do not induct civilian employees. Those who volunteer to engage in this type of employment may be presumed to have done so with the knowledge that they are under the Military Code, and that, as civilian employees, they would be subject to trial by court-martial for such nonmilitary offenses as they commit against the United States. And so no deprivation of rights is involved. If it is, it is the result of a voluntary surrender.

A person may waive a jury trial, and may agree to be tried by a jury of less than twelve. So it may be assumed that a person who becomes a civilian employee does so with the knowledge that if he commits certain offenses, he will be tried by court-martial. The right to indictment by Grand Jury and trial by jury should be deemed waived. That, in my view, is the rationale of the situation.

Some Cases from Other Wars Some very interesting cases arose during the First World War. One concerned a civilian employee charged with a non-military offense. Of the right to prosecute him under the then existing Articles of War, the Court said:

The importance of this decision lies in the fact that the Court was presented with an opportunity of rendering a very narrow decision. What does “in the field” mean? Does it mean, as well it might, facing the enemy? Yet the Court held that a civilian employee, who was being trained for service “in the field”, in the United States, was subject to court-martial.

Apposite to the discussion is the following language of Judge James M. Carter of this court in another case:

Another case, which also arose in World War One was decided by Judge Joseph C. Hutcheson, Jr., who is now the Chief Judge of the Court of Appeals for the Fifth Circuit. In that case one Jochen was employed as a civilian with the American forces along the Mexican border during the expedition when our army crossed into Mexico. While serving in the United States, at Brownsville, Texas, he was charged with violation of Article 2. He was tried and convicted. He sought release on a writ of habeas corpus.

Judge Hutcheson went fully into the question of military jurisdiction when exercised over civilians, writing:

And again:

These cases are referred to because they show that jurisdiction over civilian employees of the Armed Forces has had long judicial recognition. They show that the courts in the past have sustained jurisdiction over civilians, although the persons involved were stationed in the United States, where it would have been easy to try them before non-military courts.

Summary and Conclusion

The Supreme Court in Reid v. Covert, by declaring unconstitutional the application of the “dependents” clause to the wife of an officer charged with a capital offense did not intend to declare the clause as to civilian employees unconstitutional.

Absent a binding contrary ruling, I am of the view that the “civilian” clause in the statute under discussion is a proper exercise of Congressional power under the constitutional grant to make rules or regulations for the government of 'the Armed Forces, or under the “necessary and proper” clause, or both.

Invalidation of Congressional enactments by judicial fiat should be the rare exception. For this reason, Mr. Justice Frankfurter’s concurrence was based on the assumption that the court was not determining the validity of the “civilian” clause. So the situation calls for the application of the principle, already alluded to, that if a statute covers several enumerated groups and is declared invalid as applied to one group only, the remainder survives, provided it relates to different categories.

For the “civilian” group is distinct from the “accompanying” (or dependents) group. Hence, the conclusion that the petition for writ of habeas corpus-does not state grounds for the intervention of this court. The Order to Show Cause will be discharged. The Motion to Dismiss the petition will be granted, to be followed by a formal Judgment of Dismissal

. People v. Greene, 1887, 74 Cal. 400, 405 , 16 P. 197, 199 . See the writer’s opinion in Arenas v. United States, D.C. Cal.1951, 95 F.Supp. 962, 970 , and cases cited in note 22 thereof. . United States ex rel. Guagliardo v. McElroy, D.C.Cir.1958, 259 F.2d 927 . . Grisham v. Taylor, 3 Cir., 1958, 261 F.2d 204 . . United States ex rel. Wilson v. Bohlander, D.C.Colo.1958, 167 F.Supp. 791, 797 . . United States ex rel. Toth v. Quarles, 1955, 350 U.S. 11 , 76 S.Ct. 1 , 100 L.Ed. 8 . . Lee v. Madigan, 79 S.Ct. 276 . . 10 U.S.C., 1946, Supp. IV, § 1564, Article of War 92. . Lee v. Madigan, supra, note 6 . . Reid v. Covert, 1957, 354 U.S. 1 , 77 S.Ct. 1222 , 1 L.Ed.2d 1148 . . Lee v. Madigan, 79 S.Ct. 284 dissenting opinion. . 50 U.S.C. § 552 (11), now 10 U.S.C. § 802 (11). . Winthrop, Military Law and Precedents, 2 Ed., 1920, pp. 941-950. . Winthrop, op. cit., p. 957; Journal of Continental Congress, Vol. II, 1775, p. 116. . 2 Stat. 359 . . 64 Stat. 109 , 50 U.S.C. § 551 et seq., now 10 U.S.C. § 801 et seq. For an examination of the new concepts introduced by this Code of Military Justice, see the writer’s opinion in United States v. Shibley, D.C.Cal.1953, 112 F. Supp. 734, 742-744, and cases cited in notes 15 — 17. . Reid v. Covert, supra, note 9 . . See, Grisham v. Taylor, supra, note 3 , 261 F.2d at page 204 . . See, Dorchy v. State of Kansas, 1924, 264 U.S. 286, 288-290 , 44 S.Ct. 323 , 68 L.Ed. 686 ; Lynch v. United States, 1934, 292 U.S. 571, 586-587 , 54 S.Ct. 840 , 78 L.Ed. 1434 ; United States v. Harriss, 1954, 347 U.S. 612, 627 , 74 S.Ct. 808, 98 L.Ed. 989 . This principle is observed rigorously when the statute has a severability clause, as this statute has. See, Grisham v. Taylor, supra, note 3 , 261 F.2d at pages 205-206. . Reid v. Covert, supra, note 9 , 354 U.S. at pages 33-35, 77 S.Ct. at page 1239 . . Reid v. Covert, supra, note 9 , 354 U.S. at page 45 , 77 S.Ct. at page 1245 . . Reid v. Covert, supra, note 9 , 354 U.S. at pages 76-77, 77 S.Ct. at page 1261 . . United States ex rel. Guagliardo v. Mc-Elroy, supra, note 2. . 48 C.J.S. International Law § 9; Act of June 30, 1906, 34 Stat. 814 , 22 U.S.C. §§ 191-200 , creating the United States Court for China. See, Husar v. United States, 1928, 9 Cir., 26 F.2d 847 ; Casement v. Squier, 9 Cir., 1943, 138 F.2d 909 . The sections relating to the American courts in China and elsewhere were repealed in 1948, after change in our treaties with China and other powers. Act of June 25, 1948, c. 646, § 39, 62 Stat. 992 , effective September 1, 1948. The same statute repealed statutory provisions relating to consular courts in other countries, such as Turkey and Egypt, which the President had previously been given power to abandon by Section 182 of Title 22 U.S.C., 62 Stat. 992 , § 39. . Kawakita v. United States, 1952, 343 U.S. 717, 733 , 72 S.Ct. 950 , 96 L.Ed. 1249 ; D’Aquino v. United States, 9 Cir., 1951, 192 F.2d 338, 348 . And see, the writer’s opinion in United States v. Archer, D.C.Cal.1943, 51 F.Supp. 708, 709 . . Constitution of the United States, Amendments Y and VI. None of these requirements apply to courts-martial. Kinsella v. Krueger, 1956, 351 U.S. 470 , 76 S.Ct. 886 , 100 L.Ed. 1342 ; Whelchel v. McDonald, 1950, 340 U.S. 122, 127 , 71 S.Ct. 146 , 95 L.Ed. 141 . . Rule 23(a), Federal Rules of Criminal Procedure, 18 U.S.C. See, Schick v. United States, 1904, 195 U.S. 65, 71 , 24 S.Ct. 826 , 49 L.Ed. 99 ; Adams v. United States, 1942, 317 U.S. 269, 275 , 63 S.Ct. 236 , 87 L.Ed. 268 ; Echert v. United States, 8 Cir., 1951, 188 F.2d 336, 339 , 26 A.L.R.2d 752 . . Rule 23(b), Federal Rules of Criminal Procedure. See, Patton v. United States, 1930, 281 U.S. 276 , 50 S.Ct. 253 , 70 A.L.R. 263 . . Hines v. Mikell, 4 Cir., 1919, 259 F.28, 35, certiorari denied by the Supreme Court, 250 U.S. 645 , 39 S.Ct. 494 , 63 L.Ed. 1187 . . In re Varney’s Petition, D.C.Cal.1956, 141 F.Supp. 190, 200 . . Ex parte Jochen, D.C.S.D.Tex.1919, 257 F. 200 . . Ex parte Jochen, supra, note 30 , 257 F. at page 204 . . Ex parte Jochen, supra, note 30 , 257 F. at page 208 . . Reid v. Covert, supra, note 9 . . Article 1, § 8, Cl. 14, of the Constitution of the United States grants the Congress power “To make Rules for the Government and Regulation of the land and naval Forces”; . The final clause of Article 1, § 8, gives power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This clause has become known as the “necessary and proper” clause. . Reid v. Covert, supra, note 9 , 354 U.S. at page 45 , 77 S.Ct. at page 1245 . To the portions already cited from Reid v. Covert, supra, note 9 , we add the following from Mr. Justice Black’s opinion: “Even if it were possible, we need not attempt here to precisely define the boundary between ‘civilians’ and members of the ‘land and naval Forces.’ We recogiviee that there might be circumstances where a person could be ‘in’ the armed services for purposes of Clause lJf even though he had not formally been inducted into the military or did not wear a uniform.” 354 U.S. at pages 22-23, 77 S.Ct. at page 1233 . (Emphasis added.) This supports the conclusion reached here that even the majority of the court did not intend to determine the validity of the entire “civilian” clause. . See cases cited in note 18. The severa-bility clause in the statute before us reads: “If a part of this Act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this Act is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.” Pub.L. No. 1028, 84th Cong., 2d Sess., 70A Stat. 640, Aug. 10, 1956, § 49(d), 10 U.S.C.A. preceding section 101.