Bronemann v. United States, 12502-12504.

• Decision Date: 28 October 1943
• Docket Number: No. 12502-12504.,12502-12504.
• Citation: 138 F.2d 333
• Parties: BRONEMANN v. UNITED STATES (three cases).
• Court: U.S. Court of Appeals — Eighth Circuit

138 F.2d 333 (1943)

BRONEMANN v. UNITED STATES (three cases).

Nos. 12502-12504.

Circuit Court of Appeals, Eighth Circuit.

October 28, 1943.

Henry C. Mundt, of Sioux Falls, S. D., for appellants.

George Philip, U. S. Atty., of Sioux Falls, S. D. (John T. Heffron, Asst. U. S. Atty., of Deadwood, S. D., and Leo P. Flynn, Asst. U. S. Atty., of Sioux Falls, S. D., on the brief), for appellee.

Before WOODROUGH, THOMAS, and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

The appellants are able-bodied men, capable of bearing arms in defense of the country and subject to the provisions of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix § 301 et seq. They duly registered under the terms of the Act but claimed to be entitled to classification in Class IV-D on the ground that they were ordained ministers of religion in that they were "ordained ministers of Jehovah's Witnesses." Their claims to Class IV-D classification were denied by the draft board and they took appeals, as provided in the Act. The proceedings resulted in their being classified in Class IV-E as conscientious objectors instead of in the requested IV-D classification. Having been duly ordered to report for work of national importance under civilian direction, they wilfully refused to obey the orders and were indicted under 50 U.S.C.A. Appendix § 311, for failing to perform a duty required of them under the Act and regulations. They pleaded not guilty and after trial were convicted and sentenced to imprisonment.

On the trials they admitted their wilful refusal to obey the orders but sought to defend on the ground that they were in fact exempt from conscription under the Act as "ordained ministers of religion", 50 U.S.C.A.Appendix § 305, and that the orders directed to them were void because the Local and Appeal Boards had acted arbitrarily, capriciously and unfairly in classifying them in Class IV-E and in refusing to classify them in Class IV-D.

The court tried the cases without jury (jury having been waived) and upon consideration refused to receive in evidence the records of the proceedings had before the local draft board or on the appeals to the Board of Appeals which were offered as tending to sustain the defense of appellants that the Boards had acted arbitrarily, capriciously or unfairly in classifying the appellants in Class IV-E and in refusing to classify them as "ordained ministers of religion" in Class IV-D. It found the defendants guilty as charged and the sentences of imprisonment followed.

On exceptions duly preserved to the adverse rulings and judgment of the court, the appellants present for our decision the single question whether evidence, which they claimed tended to show that the Local and Appeal Boards acted arbitrarily, capriciously or unfairly in classifying them in Class IV-E and in refusing to classify them in Class IV-D, was competent to constitute a defense to the charge against them under Section 311. Their position is that the Board's order was void by reason of the alleged arbitrary, capricious and unfair classification and that they had a right to refuse to report as required by it, and that the issue raised by their claim was triable by court and jury under their pleas of not guilty to the indictments.

The question is of far-reaching importance and has received careful consideration by many district courts¹ and by several Courts of Appeals.² Appellants also contend that this court has committed itself to their position by its decision in Johnson v. United States, 8 Cir., 126 F.2d 242, but we do not agree. In that case the appellant had submitted to his classification by his Local Draft Board and having taken no appeal therefrom he could not lawfully refuse to obey the induction order directed to him by his Local Board in conformity with his classification. Here the appellants resisted the classifications and duly appealed therefrom so as to exhaust administrative remedies.

The Selective Service Act of 1940 contemplates that, generally speaking, every male person between specified ages, residing in the United States, shall be liable for training and service in the land or naval forces of the United States, and throughout its provisions it puts upon any such man who seeks to be exempted the burden of showing that he comes within the terms of some particular exception specified in the Act. The machinery which the Act sets up for its administration is adapted to perform the task of selecting the proper men needed to defend the country and to eliminate the unfit and specially excepted ones, with due regard for the individual but with promptitude and efficiency commensurate with the exigencies of war. In that situation, in Seele v. United States, 8 Cir., 133 F.2d 1015, this court upheld conviction under Section 311 of the accused registrant claiming to be a minister of religion in the same sect as this appellant, and sustained the trial court's rulings and instructions to the jury which were the same in substance as the rulings and conclusions of law of the trial court in this case which are here assigned as error.

Under the Act all necessary powers of inquiry, decision and direction over individuals in the broad class of males of military age are delegated to and vested in designated Boards and officers until the selected individual is inducted into the military services, which then assume control and impose their respective disciplines. The provisions and regulations afford adequate and appropriate means for the hearing and determination of all claims of the individuals upon whom the liability to military service is imposed by reason of their male sex, military age and residence within the United States. No Draft Act could be drawn to operate automatically by designation of the particular individuals required to serve in the armed forces out of the many millions in the class liable to such service. To be effective the selection of the individual must be delegated as it was delegated in the Act.

For the whole class of persons the procedure set up by the Act provides to the individual the full protection of due process of law throughout the proceedings by which his general liability to military service becomes a fixed obligation through his selection and induction into such service.

Obviously the governmental function of calling and selecting men for armies and navies of defense in war is not a function of judicial character or so regarded by any nation. The state of war is not permanent but its demands are of intransigeant urgency and no provision of the Selective Service Act empowers the judicial branch of the government to perform any part of the function appropriately delegated by Congress. The courts are not vested with any authority to entertain appeals from or to review or supervise the conduct of the draft boards or other draft officers in any of the proceedings carried on by them within the powers conferred upon them by the Act and regulations under the Act.

The provisions and plan of the Act clearly manifest the intent of Congress to invoke no judicial aid in the performance of the examination, elimination and selection processes of the...