Cox v. United States Thompson v. Same Roisum v. Same 68

• Decision Date: 24 November 1947
• Docket Number: Nos. 66,s. 66
• Citation: 68 S.Ct. 115,92 L.Ed. 59,332 U.S. 442
• Parties: COX v. UNITED STATES. THOMPSON v. SAME. ROISUM v. SAME. to 68
• Court: U.S. Supreme Court

332 U.S. 442

68 S.Ct. 115

92 L.Ed. 59

COX

v UNITED STATES.

THOMPSON

v. SAME.

ROISUM

v. SAME.

Nos. 66 to 68.

Argued Oct. 14, 15, 1947.

Decided Nov. 24, 1947.

Rehearing Denied Feb. 2, 1948.

See 333 U.S. 830, 68 S.Ct. 449.

Mr. Hayden C. Covington, of Brooklyn, N.Y., for petitioners.

Mr. Irving S. Shapiro, of Washington, D.C., for respondent.

Mr. Justice REED announced the judgment of the Court and delivered an opinion in which The CHIEF JUSTICE, Mr. Justice JACKSON, and Mr. Justice BURTON join.

These cases present the question of the scope of review of a selective service classification in a trial for absence without leave from a civilian public service camp. Petitioners are Jehovah's Witnesses who were classified as conscientious objectors despite their claim to classification as ministers of religion. Ministers are exempt from military and other service under the Act. All three petitioners exhausted their remedies in the selective service process and complied with the order of the local board directing them to report to camp. Cox and Thompson were indicted for leaving the camp without permission, and Roisum was indicted for failing to return after proper leave, in violation of § 11 of the Selective Training and Service Act of 1940. 54 Stat. 885, 57 Stat. 597, 50 U.S.C.Appendix, §§ 301—318, 50 U.S.C.A.Appendix, §§ 301—318.

On their trials petitioners requested directed verdicts, at appropriate times, because the selective service orders were invalid and requested the court to charge the jury that they acquit petitioners if they found that they were ministers of religion and therefore exempt from all service. The trial judge did not grant petitioners' requests, however, and instructed the juries that they were not to concern themselves with the validity of the classification orders. Petitioners were convicted, and on appeal to the Circuit Court of Appeals their convictions were affirmed. 157 F.2d 787. We granted certiorari in order to resolve questions concerning the submission to the jury of evidence, to wit, the files of the local board of the selective service system, as relevant to the charge of violation of selective service orders. 331 U.S. 801, 67 S.Ct. 1532.

Petitioner Cox registered under the Selective Training and Service Act on October 16, 1940, and in his questionnaire stated that he was 22 years old and had been employed as a truck driver since 1936. The local board classified him IV—F, as not physically fit for service, on January 31, 1941, and on Mar h 10, 1942, changed the classification to I—A. Ten days later Cox filed a request for reclassification as IV—E (conscientious objector), stating that he had become a Jehovah's Witness in January 1942. The board at first rejected the claim, but on June 12 of the same year granted him the requested classification. Ten days later petitioner first made his claim for total exemption from service, claiming to be a minister of religion; the local board refused the exemption and its action was sustained by the board of appeal. On May 18, 1944, the board ordered Cox to report to camp, and on May 26 he complied and then immediately left camp and did not return.

Upon trial Cox's selective service file was received in evidence. It contained an ordination certificate from the Watch Tower Bible and Tract Society stating that Cox was 'a duly ordained minister of the Gospel' and that his 'entire time' was devoted to missionary work. The file also contained an affidavit of a company servant, Cox's church superior, dated October 29, 1942, stating that Cox 'regularly and customarily serves as a minister by going from house to house and conducting Bible Studies and Bible Talks.' There was also an affidavit by Cox, dated October 28, 1942, stating that he was enrolled in the 'Pioneer service' on October 16 and that he was 'able to average 150 hours per month to my ministerial duties without secular work.' He added that 'my entire time will be devoted to preaching the Gospel as a pioneer.' Cox testified at the trial in October 1944 as to his duties as a minister that he preached from house to house, conducted funerals, and 'instructed the Bible' in homes. No evidence was introduced showing the total amount of time Cox had spent in religious activities since October 16, 1942. Nor was there evidence of the secular activities of Cox nor the time employed in them. Although the selective service file was introduced in evidence, and the trial court denied the motion for a directed verdict, it does not appear that the trial judge examined the file to determine whether the action of the local board was arbitrary and capricious or without basis in fact. At that time the lower federal courts interpreted Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, as meaning that no judicial review of any sort could be had of a selective service order. In Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567, we held that a limited review could be obtained if the registrant had exhausted his administrative remedies, and the Circuit Court of Appeals in accordance with that decision reviewed the file of Cox and found that the evidence was 'substantially in support' of the classification found by the board.

Petitioner Thompson also registered on October 16, 1940, claiming exemption as a minister. He stated in his questionnaire that he was 30 years old and that for the past 13 years he had operated a grocery store and had been a minister since August 1, 1940. At first the local board gave him a deferred classification because of dependency, but then changed his classification to IV E. Thompson appealed to the board of appeal on November 5, 1943, explaining his duties as a minister and presenting a full statement of his argument that as a colporteur he was within the exemption for ministers as interpreted by selective service regulations. He attached an affidavit from the company servant, which stated that Thompson during the preceding twelve months had devoted 519 1/2 hours to 'field service,' representing time spent in going from house to house, and making 'back-calls on the people of good will,' but not including time spent in conducting studies at the 'local Kingdom Hall.' Another affidavit from the company servant stated that Thompson was an ordained minister of the Gospel, that he was serving as assistant company servant, and that he was a 'School Instructor in a Course in Theocratic Ministry.' Thompson also attached three certificates from the national head uarters of the Watch Tower Bible and Tract Society which stated that Thompson had been associated with the Society since 1941, that he served as assistant company servant and Theocratic Ministry Instructor, and also as advertising servant and book study conductor. Unlike the other two petitioners, Thompson did not introduce an ordination certification from national headquarters stating that he devoted his entire time as a minister. Thompson also filed a statement signed by twelve Witnesses which stated that they regarded Thompson as an ordained minister of the gospel. No evidence was submitted indicating any change in Thompson's activities in operating his grocery store. The board of appeal sustained the local board in its classification, the board ordered Thompson to report to camp, and on April 18, 1944, he reported and immediately left. Thompson's trial followed the same pattern as Cox's, except that Thompson was not allowed to testify concerning his duties as a minister.

Petitioner Roisum also registered on the initial registration day, and filed a questionnaire stating that he was 22 years old, that he had worked for the past 15 years as a farmer, and that he was ordained as a minister in June 1940. Roisum made claim to a minister's ex- emption but at the same time submitted an affidavit signed by his father saying that petitioner was necessary to the operation of his father's farm. In June 1942 Roisum filed a conscientious objector's form claiming exemption from both combatant and non-combatant military service; this form was apparently filed under misapprehension, since Roisum did not abandon his contention that he should be classified as a minister. In the form he stated that he preached the gospel of the Kingdom at every opportunity. Roisum also enclosed a letter from national headquarters of the Society stating that Roisum had been affiliated with the Society since 1936, that he had been baptized in 1940 and 'was appointed direct representative of this organization to perform missionary and evangelistic service in organizing and establishing churches and generally preaching the Gospel of the Kingdom of God in definitely assigned territory in 1941' and that Roisum devoted his 'entire time' to missionary work and was a duly ordained minister. The local board classified Roisum as a conscientious objector to combat service (I—A—O), and Roisum appealed on June 30, 1943. Roisum attached an affidavit from his company servant stating that Roisum was an assistant company servant, a back call servant, and book study conductor, and that by performance of these duties Roisum had acquitted himself as a 'regular minister of the gospel.' The company servant submitted a schedule showing the number of hours which Roisum had spent in religious activities for six months from October 1942 to March 1943, ranging from as little as 11 hours per month to as many as 69, averaging about 40. The board of appeal changed the classification to IV—E and rejected Roisum's request that an appeal be taken to the President. Roisum was ordered to report to camp, disobeyed the order, and was arrested and indicted. The trial court declared a mistrial on Roisum's undertaking to obey the board's order and seek release on habeas corpus. Roisum subsequently failed to comply, apparently because of transportation difficulties, but finally reported to camp on May 23, 1944, as directed. He remained in camp for five days, left on a...