Atherton v. United States, 11582

• Decision Date: 05 August 1949
• Docket Number: 11586.,No. 11582,11582
• Citation: 176 F.2d 835
• Parties: ATHERTON et al. v. UNITED STATES. EDWARDS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

176 F.2d 835 (1949)

ATHERTON et al. v. UNITED STATES.

EDWARDS et al. v. UNITED STATES.

Nos. 11582, 11586.

United States Court of Appeals Ninth Circuit.

August 5, 1949.

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Francis Heisler, A. L. Wirin and Fred Okrand, Los Angeles, Cal., for appellants.

James M. Carter, U. S. Atty., Ernest A. Tolin, Chief Asst. U. S. Atty., Norman Neukom and Herschel E. Champlin, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before DENMAN, Chief Judge and STEPHENS and ORR, Circuit Judges.

STEPHENS, Circuit Judge.

Twenty-one persons in camp as conscientious objectors to participation in war in any form were indicted and convicted on counts charging a knowing failure and neglect to perform certain duties required of them under the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq., hereinafter referred to as the Act. The appeals are consolidated.

Appellants were classified IV-E as conscientious objectors by their local Selective Service boards and were assigned to work of national importance at a Civilian Public Service Camp No. 76 at Glendora, California.

The Act provided for assignment of those so classified to do work of national importance under civilian direction. The President, by virtue of his authority under the Act, set up an operative agency headed by the Director of Selective Service. A number of Army officers were detailed for service with the Selective Service Headquarters. By virtue of Executive Order No. 8675, February 6, 1941, 6 Fed. Reg. 83, the Director of Selective Service was empowered to determine what constituted work of national importance, and to effectuate a plan to utilize the manpower under classification IV-E for that purpose. The Civilian Public Service System was established whereby camps were set up under control of a Camp Operations Division which administered the needs, personnel and supplies for each camp. The immediate directors for each of these camps and their assisting officers were civilians.

Experience in the handling of groups of men was available in the Army camps in regard to housing, food, clothing, discipline and general regulations, and this experience was used in the organization and operation of the civilian camps. Monthly payments in the sum of $5 were disbursed through the Army Chief of Finance, the appointed Fiscal Disbursing and Accounting Agent for the Director of Selective Service.

The camps were regulated and controlled by the Director of Selective Service and his subordinates in the Camp Operations Division including those in immediate control of the camp. The Director promulgated regulations for conduct of the camps, and operations thereof were ruled by the Camp Operations Division as set forth in a Manual for Camp Directors Government Operated Civilian Public Service Camps.

Appellants contend that they were required to perform work under military rather than civilian directors, contrary to the mandate in Section 5(g) of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 305(g).¹

We are urged by appellants to find that Congress intended to keep completely separate the treatment of conscientious objectors from the government's military establishment, that the intention was circumvented in the appointment of and grant of authority to the Director of Selective Service and that Camp Glendora was wrongfully put under administrative and directive control of the Selective Service System through Camp Operations of National Selective Service Headquarters containing Army personnel.

The government claims that Section 5(g) is qualified by 50 U.S.C.A. Appendix, §§ 309a and § 310 of the Selective Service Act, wherein Congress delegated to the President power of administration for prescribing necessary rules and regulations to carry out the provisions of the Act. He was authorized to administer the Act and to delegate his authority to the Director of Selective Service, to utilize services of any and all departments, officers or agents of the United States as well as officers of the Military Services.

We are of the opinion that appellants state the Congressional intent as to the separation of the military side and the civilian side of the government at war all too broadly. The constitutional power of the Government to prosecute a duly declared war to victory is very broad, as authorities hereinafter quoted will show. All resident persons enjoying the rights or privileges of the country may be required to assist in the war effort as the Chief Executive and the Congress may direct. Privileges granted by Congress to persons in defined situations or to persons holding religious conscientious objections to war are not to be construed so as to paralyze the governmental hand unless legislation compels it. We hold, and authorities will be cited to support our holdings, that it was not the Congressional intent to excuse the conscientious objector from all service which would tend to strengthen the government's war power nor was it the Congressional intent to bar the services, skill, experience, and organization of other governmental departments in setting up the organization and functions of conscientious objectors' camps, including the Army, Navy and Marine Corps. In order to accomplish the work of national importance, organization, discipline and operational controls were essential.

The fact that the Civilian Public Service System contained Army officers on special duty with Selective Service Headquarters does not make the camps a part of the Army nor constitute them as military in character nor subject camp personage to military rather than civilian direction. Army officers are frequently assigned to civilian work and the evidence justifies the conclusion that the actual work of the camps was performed under civilian supervision and direction and not military direction. Persons assigned to the camps were in no way subject to the Articles of War and prosecutions for any violations by them were instituted in the United States district court. As Director of Selective Service, General Hershey is directly responsible to the President in pursuance of the terms of the Act. It is true that he was a general in the Army, however, by Special Order 231 of the War Department, he was detached from that Department and assigned to the Selective Service System and then appointed its Director with powers to act only in accordance with the provisions of the Act. He served in such capacity as a civil and not a military officer. Kramer v. U. S., 6 Cir., 147 F.2d 756.

Appellants rely upon Gibson v. U. S., 329 U.S. 338, 67 S.Ct. 301, 91 L.Ed. 331, and Girouard v. U. S., 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084. However, nothing in these cases negatives the conclusion that the camps were under civilian direction, or suggests that such camps were under military rule and control.

It is next claimed that the Selective Training and Service Act of 1940 did not authorize the setting up of restrictive confinement and detention camps, and that therefore appellant could not be guilty of violating illegal orders given therein.

Appellants argue that neither the Act, by the words "assigned to work of national importance under civilian direction", nor the Presidential Executive Order No. 8675, directing the Director of Selective Service to establish or designate work of national importance under civilian direction, authorizes the establishment of the camp system.

Establishing conscientious objectors' camps was a reasonable means of fulfilling the program entrusted to the President by Congress. Accomplishment of the work was of great importance in a period of national emergency and it had to be done efficiently and with speed. The men had to be assigned to places from which the work could be accomplished by groups. An organized and uniform system with the necessary facilities for the men to act was essential. See Weightman v. U. S., 1 Cir., 142 F.2d 188.

Another of appellants' contentions is that the action taken under the Act compels them to perform work without compensation and is involuntary servitude violative of the Thirteenth Amendment to the United States Constitution. U.S.C.A. Constitution, Amendment XIII.

In the Selective Draft Law Cases, Arver v. U. S., 245 U.S. 366, at page 390, 38 S.Ct. 159, 165, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856, the Supreme Court states that: "* * * as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement."

So, also, does this extend to the work of conscientious objectors for work of national importance during war. See United States v. Van Den Berg, 7 Cir., 139 F.2d 654, 656; Butler v. Perry, 240 U.S. 328, 333, 36 S.Ct. 258, 60 L.Ed. 672; United States v. Mroz, 7 Cir., 136 F.2d 221, 227.²

It is fundamental that Congress can compel appellants to participate in national defense, and a requirement to perform work of national importance in lieu of induction into military service can not be said to controvert the Thirteenth Amendment. Heflin v. Sanford, 5 Cir., 142 F.2d 798.

Reversal is asked upon the asserted ground that Section 5(g) of the Act fails to set forth standards as to what "work of national importance" shall be, and that therefore Congress unconstitutionally delegated its powers, and appellants cite A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947; Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834; and Ex parte Mitsuye Endo, 323 U.S. 283, 65 S.Ct. 208...