Thence Southward to the point that is at Lat. 32° 13′ 31"-Long. 91° 03′ 16′′ (C-2 Smith Exhibit 5);

Thence Southward to the point that is at Lat. 32° 13′ 07"-Long. 91° 03′ 40′′ (C-3 Smith Exhibit 5).

Thence running Westwardly along the dead thalweg of the abandoned channel of the Mississippi River (lower Oak Bend) to the point that is at Lat. 32° 13′ 23′′-Long. 91° 04';

Thence Westwardly to a point, Lat. 32° 13′ 37′′-Long. 91° 04' 30'';

Thence Westwardly to a point, Lat. 32° 13′ 35′′-Long. 91° 05';

Thence Westwardly to a point, Lat. 32° 13′ 26′′’—Long. 91° 05' 30";

Thence Westwardly to a point, Lat. 32° 13' 04"-Long. 91° 06′;

Thence Westwardly to a point, Lat. 32° 12' 30"-Long. 91° 06′ 28′′;

Thence Westwardly to a point at the head of Palmyra Lake and Kellogg Lake (where the Northern and Western boundary of Diamond Point ends and which is point of beginning of the Southern boundary of Diamond Point), Lat. 32° 12' 24"-Long. 91° 06′ 44′′;

Thence Westwardly along the thalweg of Palmyra Lake to a point, Lat. 32° 12′ 26′′-Long. 91° 07'.

That portion of the Southern boundary of Diamond Point that also forms the Mississippi-Louisiana state boundary is described as follows:

Beginning at the thalweg of the Mississippi River at the lower end of Diamond Point Cut-off at a point, being at Lat. 32° 09′ 46′′-Long. 91° 00′ (Smith Exhibit 5);

Thence Westwardly along the dead thalweg of the abandoned channel of the Mississippi River and so-called Kellogg Lake to a point, Lat. 32° 09′ 43′′-Long. 91° 00' 30";

Thence Westwardly to a point, Lat. 32° 09′ 40′′-Long. 91° 01';

Thence Westwardly to a point, Lat. 32° 09′ 45′′-Long. 91° 01' 30";

Thence Westwardly to a point, Lat. 32° 10′-Long. 91° 01' 52";

Thence Westwardly to a point, Lat. 32° 10′ 07′′-Long. 91° 02';

Thence Westwardly to a point, Lat. 32° 10′ 27′′-Long. 91° 02' 29'';

Thence Westwardly to a point, Lat. 32° 10′ 41′′—Long. 91° 03';

Thence Westwardly to a point, Lat. 32° 10′ 50′′-Long. 91° 03' 30''.

The following portion of this description is inserted here to complete the Southern boundary of Diamond Point and to join the two portions of the MississippiLouisiana state boundary:

Thence continuing Westwardly along the dead thalweg in the abandoned channel of the Mississippi River and so-called Kellogg Lake to a point, Lat. 32° 10′ 54′′-Long. 91° 04';

Thence Westwardly to a point, Lat. 32° 11'-Long. 91° 04' 18'';

Thence Westwardly to a point, Lat. 32° 11′ 03′′-Long. 91° 04' 30'';

Thence Westwardly to a point, Lat. 32° 11' 11"-Long. 91° 05';

Thence Westwardly to a point, Lat. 32° 11' 25"-Long. 91° 05' 30'';

Thence Westwardly to a point, Lat. 32° 11' 44"-Long. 91° 06';

Thence Westwardly to a point, Lat. 32° 12'-Long. 91° 06' 10'';

Thence Westwardly to a point, Lat. 32° 12' 07''-Long. 91° 06′ 15'';

Thence Westwardly to a point, Lat. 32° 12' 20''—Long. 91° 06′ 30";

Thence Westwardly to a point, Lat. 32° 12′ 24′′-Long. 91° 06′ 44′′ (being the point at the head of Palmyra Lake and Kellogg Lake where the Northern and Western boundary of Diamond Point ends and joins with the Southern boundary of Diamond Point).

The costs of this suit are equally divided between the two States, plaintiff and defendant.

Syllabus.

UNITED STATES EX REL. TOTH v. QUARLES, SECRETARY OF THE AIR FORCE.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

No. 3. Argued February 8-9, 1955.-Restored to docket for reargument June 6, 1955.-Reargued October 13, 1955. Decided November 7, 1955.

Five months after he had been honorably discharged from the United States Air Force and had returned to his home and was privately employed, an ex-serviceman was arrested by military authorities on charges of murder and conspiracy to commit murder while he was an airman in Korea. When arrested he had no relationship of any kind with the military. Under authority of Art. 3 (a) of the Uniform Code of Military Justice, he was taken to Korea to stand trial before a court-martial. Held: He could not constitutionally be subjected to trial by court-martial. Pp. 13-23.

1. The Act cannot be sustained as an appropriate exercise of the constitutional power of Congress "To raise and support Armies," "To declare War," or to punish "Offences against the Law of Nations." Pp. 13-14.

2. This assertion of military authority over civilians cannot rest on the President's power as Commander-in-Chief, nor on any theory of martial law. P. 14.

3. The Fifth Amendment does not grant court-martial power to Congress; it merely makes clear that there need be no indictment for such military offenses as Congress can authorize military tribunals to try under its Article I power to make rules to govern the armed forces. P. 14, n. 5.

4. The Act is not a valid exercise of the power granted Congress in Article I of the Constitution "To make Rules for the Government and Regulation of the land and naval Forces," as supplemented by the Necessary and Proper Clause. Pp. 14-23.

(a) The power granted Congress "To make Rules" to regulate "the land and naval Forces" is to be construed as restricting courtmartial jurisdiction to persons who have a relationship with the armed forces. P. 15.

(b) This construction is required by the fact that any such expansion of court-martial jurisdiction as the Act provides neces

sarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution, where persons on trial are surrounded with more constitutional safeguards than in military tribunals. Pp. 15-20.

(c) It is within the constitutional power of Congress to provide for federal district court trials of discharged soldiers accused of offenses committed while in the armed services. Pp. 20–21.

(d) The constitutional grant of power to Congress to regulate the armed forces does not empower Congress to deprive civilians of trials under Bill of Rights safeguards; and power to circumvent those safeguards is not to be inferred from the Necessary and Proper Clause. Pp. 21-22.

(e) A different result than that here reached is not required by the fact that some other countries which do not have our Bill of Rights subject civilians who were once soldiers to trials by court-martial rather than to trials by civilian courts. P. 22.

(f) Considerations of discipline in the armed forces do not warrant expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury. Pp. 22-23.

(g) Ex-servicemen, like other civilians, are entitled to have the benefit of safeguards afforded those tried in the regular courts authorized by Article III of the Constitution. P. 23.

94 U. S. App. D. C. 28, 215 F. 2d 22, reversed.

William A. Kehoe, Jr. argued the cause for petitioner. With him on the briefs were Al. Philip Kane, Charles V. Koons, John J. McGrath, Peter F. Flaherty, Joseph H. Ridge, James F. Smith and L. Pat McGrath.

Solicitor General Sobeloff argued the cause for respondent on the reargument, and Marvin E. Frankel on the original argument. With them on the brief on the original argument were Assistant Attorney General Olney, Beatrice Rosenberg, Carl H. Imlay and Chester W. Wilson. With them on the brief on the reargument was Mr. Olney.

Ralph B. Gregg filed a brief for the American Legion, as amicus curiae, urging reversal.