"The Court has considered all those matters and the briefs that counsel have submitted during the time the matter has been under advisement.
"The defendant is sentenced to three years in the custody of the Attorney General of the United States.
"I believe I ought to explain the general finding that I made in these cases, the reason that the Court concludes as it does that defendants Dale Edward Weaver and George Marcus Lowe are both guilty of violation of the Selective Service Act of 1948.
"In a criminal action instituted against a defendant for failure to submit to induction under that act, the issues are very limited. This Court is not a reviewing court as to whether or not defendants are entitled to a classification either as conscientious objectors or as ministers. The jurisdiction to so classify is wholly within the purview of the local boards and the appeal boards, established by the Act of Congress and the regulations. The Court here cannot retry the matter of reclassification and under the evidence the defendants have no right to submit before this Court evidence as to their conscientious objector belief or as to their minister status so as to sustain their claim as to either one of those exemptions.
"The issues here are limited to determine whether or not due process of law has been met by the several classification boards in the matter of procedure of defendant's induction into the armed forces, and the only matter that the Court here might consider is whether or not the boards acted within their jurisdiction, whether or not the boards acted arbitrarily or capriciously in the classification of the registrants, whether or not the boards refused to consider evidence which the registrants submitted to them and whether or not there was any evidence offered that was rejected by the board, and generally whether or not there was bias or prejudice or the board was disqualified to sit in the classification of the defendants. Those are the only procedural matters that the Court can consider.
"In the Estep case, Estep v. U. S., 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567, the Supreme Court specifically ruled that there must be a determination in a trial such as this as to whether or not there is any rational basis to be found in the Selective Service file for the classification of a registrant under the Selective Service Act of 1948. In the light of the ruling made and the authorities cited by the Supreme Court in the Estep case, I think what Judge Biggs said in his dissenting opinion in the Estep case when it was before the Third Circuit defines a yardstick to be used in the trial of cases of this character as to the character of proof a selectee may adduce in defense thereof. Judge Biggs in his opinion in the Estep case said that the selectee does not have a right to `retry his classification on his indictment before a district court of the United States, and he may adduce evidence at his trial to prove that he is a regular or ordained minister of religion entitled to exemption pursuant to provision Section 5(d) of the Act.' That was the 1940 Act referred to there, but the provisions with reference to a minister of religion are practically the same as in the 1948 Act.
"Judge BIGGS went on to say that `these courses are prohibited to him. Evidence as to his status, if he claims exemption, must be submitted to his local board. He may offer evidence at his trial as a defense to the indictment that the Selective Service agencies, the local board or the appeal board, arbitrarily or capriciously refused to receive or consider evidence which he endeavored to submit as to his status. He may show by the material within his cover sheet that the local board or the appeal board acted capriciously or arbitrarily in refusing to award him the status of an exempt registrant. He may produce evidence in court that material relevant to his status, timely offered by him, was rejected. He may show that members of the local board or the appeal board are biased, prejudiced or disqualified under the Selective Service Regulations to sit in his case. He may show any or all of these things at his trial as proof that he was denied due process of law by the Selective Service agencies. Beyond this, he may not go.' 3 Cir., 150 F.2d 768, 781.
"Now, here Lowe first makes a claim of a denial of due process before the local board, that the local board was prejudiced in that the chairman of the board stated to him that regardless of what he would say it would not affect their decision that he was to be classified as I-O, and that he was not entitled to a minister classification.
"At that time Lowe was claiming a minister's classification. The rules and regulations with reference to who is entitled to such a classification are well defined in the act and the regulations pertaining thereto. From what Lowe was then contending before the board, the board could well determine from his Selective Service file that he was not a regular minister of religion within the purview of the act, and that he was not entitled to such classification.
"Section 16 of the Selective Service Act defines a minister, duly ordained minister of religion as one who claims to be a regular minister of religion, and in subsection 3 thereof, the term `regular or duly ordained minister of religion' does not include a person who irregularly or incidentally teaches the principles of a church, religion, sect or organization, and does not include any person who may have been duly ordained a minister in accordance with the ceremonial, rite or disclipine of the church, religion, sect or organization yet who does not regularly as a vocation teach and preach the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his church, sect or organization.
"When the 1948 Act was before Congress, the Senate committee in its report to the Senate specifically states what they considered deferment of ministers and ministerial students to mean. The committee report states that `Regular or duly ordained ministers of religion and certain theological and pretheological students are exempt from induction but not registration. This subsection parallels the 1940 Act except as regards pretheological students, who were not covered in the original statute. Serious difficulties arose in the administration and enforcement of the 1940 Act because of the claims by members of one particular faith that all of its members were ministers of religion. A minority of the Supreme Court thought that Congress intended to grant an exemption broad enough to include this group. In order that there may be no misunderstanding of the fact that the exemption granted is a narrow one, intended for the leaders of the various religious faiths and not for the members generally, the terms "regular or duly ordained minister of religion" have been defined in section 16(g).'
"So at the time Lowe was before the local board contending that he was a minister of religion, that board had before it the regulations and the definition of what Congress considered was a minister of religion entitled to deferment under the act. From the file that the board then had before it the board could readily conclude that Lowe was not entitled to deferment as a minister of religion.
"I don't believe that he was denied due process by the board because of the statement attributed to the chairman of the board. The local board placed Lowe in I-O. He took an appeal and his appeal was from their refusal to classify him as a minister of religion, so I can't conceive that the local board was prejudiced against him after having classified him as I-O merely because of the statement attributed to the chairman of the board, and I don't find any denial of due process or prejudice or capriciousness on the part of the local board from that one circumstance.
"His second claim is that he was denied a hearing by a hearing officer of the Department of Justice. When Lowe took his appeal he appealed from the refusal of the local board to classify him as a minister of religion. Lowe did not appeal because the local board refused to classify him as a conscientious objector. However, when he took his appeal under the regulations, the entire classification of Lowe was then submitted to the appeal board de novo.
"Now, at the time he took his appeal, the regulations did provide that if the appeal board in any case where the claim of conscientious objector was involved should find that he was not entitled to a I-O classification, or in a class lower than I-O, then his entire file should be transmitted to the district attorney for investigation by the Department of Justice.
"The record here shows that the state appeal board did make a finding that Lowe was not entitled to a classificaion of I-O, or to a classification lower than I-O; that the appeal board then sent the file to the district attorney for the State of Kansas, and the district attorney returned...
