United States v. Hearn, 11456.

• Decision Date: 15 January 1946
• Docket Number: No. 11456.,11456.
• Citation: 153 F.2d 186
• Parties: UNITED STATES ex rel. GOODMAN v. HEARN, Commanding General.
• Court: U.S. Court of Appeals — Fifth Circuit

153 F.2d 186 (1946)

UNITED STATES ex rel. GOODMAN v. HEARN, Commanding General.

No. 11456.

Circuit Court of Appeals, Fifth Circuit.

January 15, 1946.

Charles M. Cork, of Macon, Ga., and Meyer Kreeger, of New York City, for appellant.

Reid B. Barnes, Major, J. A. G. D., and Myron T. Nailling, Major, J. A. G. D., both of Atlanta, Ga., and John P. Cowart, U. S. Atty., of Macon, Ga., for appellee.

Before SIBLEY, HOLMES, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

David Goodman brought habeas corpus proceedings to deliver his minor son, Eugene Goodman, from detention in an army camp, alleging that the induction of his son was unlawful because he was a bona fide student in a recognized theological school, preparing himself to be a minister of the Jewish religion, to-wit, a rabbi; and that the Local Board in denying his exemption as such acted in an unfair and illegal manner, and was arbitrary and capricious. On the hearing the evidence consisted of the testimony of the son and the file of the Local Board concerning him. The Court found that Eugene Goodman was classified 1-A by the Local Board on July 25, 1944, and thereafter was again so classified (he having requested and been accorded a hearing before the Board) on January 30, 1945; that he appealed to the Board of Appeals, which by a unanimous vote on Feb. 28, 1945, classified him 1-A; that all said classifications were proper and that neither the Local Board nor Appeal Board acted in an arbitrary, capricious or illegal manner and neither of them exceeded its jurisdiction or power. The writ was accordingly discharged and this appeal followed.

The principal questions argued here are as to the authority of the court to review the action of the Boards; whether the evidence before them was so clear and convincing as to make their action denying the claimed exemption from military service necessarily arbitrary and a denial of due process of law; and whether the reference by the Local Board of the question to an "Advisory Panel on Theological Classifications" which was set up by the New York City Selective Service Headquarters vitiated and nullified the result.

1. The Constitution, Article 1, Sect. 8, Cl. 12, vests in the Congress the power to raise and support armies. The power is plenary. In re Tarble, 13 Wall. 397, 408, 20 L.Ed. 597. Minors may be enlisted, Tarble's case, supra; and without the consent of their parents. United States v. Bainbridge, 24 Fed.Cas. page 946, No. 14,497. The present Selective Service Act, as amended, Sections 2, 3, 50 U.S.C.A.Appendix, §§ 302, 303, requires every male citizen, and resident, between the ages of eighteen and sixty-five, to register for service, and makes them all liable to training and service unless deferred or exempted. Section 5(d), 50 U.S.C.A.Appendix, § 305(d), provides: "Regular or duly ordained ministers of religion, and students who are preparing for the ministry in theological or divinity schools recognized as such for more than one year prior to the date of enactment of this Act, shall be exempt from training and service (but not from registration) under this Act." The regular minister or theological student has no inherent or constitutional right to exemption from service. The exemption is given by Congress, and is subject to the qualifications that Congress may annex to it. All are required to register. The Congress has required the President to set up the Local Boards as its representatives and assistants in raising the army, and as to them has enacted: "Such local boards, under rules and regulations prescribed by the President, shall have power within their respective jurisdictions to hear and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemptions or deferment from, training and service under this Act of all individuals within the jurisdiction of such local boards. The decisions of such local board shall be final except where appeal is authorized * * *. The decision of such appeal boards shall be final in cases before them on an appeal unless modified or changed by the President as provided in the last sentence of Section 5 (l) of this Act" (Emphasis added.) 50 U.S.C.A.Appendix, § 310(a) (2) We regard it as clear that Congress has willed it that all questions of classification for, and deferment or exemption from service, are committed to the machinery so defined, without interference or review by the courts; and that the Constitution permits Congress to raise an army in this way. This we understand to be the effect of the decision in Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305.

But the habeas corpus statutes have not been repealed or suspended. It is still, as it has always been, the right of one who, after he has been against his will inducted into the army and there put under restraint of his liberty, to question the lawfulness of his restraint by a writ of habeas corpus in the civil courts. This father can so question the detention of his minor son. If the son were sixteen years old instead of nineteen, and so not within the military age defined by Congress, we do not say the father could not succeed. Cf. Tarble's case, supra. But here it is only a question of exemption, depending on a question of fact, which has been passed on by the Local Board having jurisdiction over this registrant, after hearing the father and son and the rabbi who was tutoring the son; and has been passed on by the Appeal Board, whose unanimous decision was refused review by the President. These decisions are, as the statute says, final. The question of exemption from military service is not a matter belonging to the judicial power of the United States which the Constitution vests in the courts, but it is a part of the procedure of raising an army, which is vested in Congress and its instrumentalities.

2. But we are not saying that an exemption given by Congress is not a legal right, or that the boards created by Congress can disregard it, or refuse to hear the claim to it, or deny due process in the hearing. Any tribunal which passes on a right must give a fair hearing and an honest decision. But in this case there was not only a full, but a patient and repeated hearing. Nor do we think the honesty of the hearing tribunals can be doubted. The Local Board, dealing with a matter of Jewish practice on which they did not wish to risk their unaided judgment, asked advice of the Theological Panel, not once but twice. They then classified 1-A, before and after hearing orally the father, the registrant, and a rabbi friend. The Appeal Board unanimously did the like. They did not believe that the registrant was a full time student in good faith preparing for the Jewish rabbinate, though the school he was attending was concededly such a theological school as the statute above quoted describes. It appears that the school has theological and rabbinical courses and also courses of a more general nature; and that religious Jews often take courses there of the theological kind without intending to...