Wyzanski Dismisses Shea Suit, Says Vietnam War Not Illegal

A U. S. District Court judge yesterday dismissed a suit by Massachusetts challenging the constitutionality of the Vietnam war, rejecting claims that the President has usurped the war-making powers of Congress.

Judge Charles E. Wyzanski cited previous rulings that Congress has participated in decisions on the continued prosecution of the war, and that "it is clear that the constitutional propriety of the means by which Congress has chosen" to act on the war "is a political question."

Massachusetts Attorney General Rogert H. Quinn, who filed the suit under the mandate of a bill passed last year by the state legislature, said he would appeal the decision to the U. S. Circuit Court of Appeals.

The bill, filed by the late Representative H. James Shea, (D-Newton), forbade the Department of Defense to send Massachusetts men to fight without a Congressional declaration of war.

The state filed suit initially in the U. S. Supreme Court, but the high court refused to hear the case under original jurisdiction. Quinn then refiled the suit in the U. S. District Court.

The federal government, in arguments presented by Assistant U. S. Attorney William A. Brown, had filed a motion to dismiss the suit on the grounds the court lacked authority to waive the actions of the President and Congress in the conduct of the war.

Judge Wyzanski said in his ruling: "The complaint must be dismissed on alternate grounds-either because it presents a controversy which lacks justifiability or because matters of which the court takes judicial notice show the complaint is without merit."

The judge cited an earlier decision in the 2nd Circuit Court of Appeals which held:

"There is, therefore, no lack of clear evidence to support a conclusion that there was an abundance of continuing participation in the prosecution of the war."