Giese v. United States

• Decision Date: 19 June 1944
• Docket Number: No. 8702.,8702.
• Citation: 143 F.2d 633
• Parties: GIESE v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

143 F.2d 633 (1944)

GIESE v. UNITED STATES.

No. 8702.

United States Court of Appeals District of Columbia.

Decided June 19, 1944.

Mr. Edmund D. Campbell, of Washington, D. C., for appellant.

Mr. Charles B. Murray, Assistant United States Attorney, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, and John C. Conliff, Jr., Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee.

Before GRONER, Chief Justice, and MILLER and ARNOLD, Associate Justices.

MILLER, Associate Justice.

Section 11 of the Selective Training and Service Act¹ makes it a crime for any person knowingly to fail or neglect to perform any duty required of him, under or in execution of the Act, or rules or regulations made pursuant to it. From a judgment of conviction under the Act this appeal was taken.

The following facts are undisputed: (1) Appellant's local Selective Service Board in the District of Columbia issued an order which directed him to report for induction;² (2) he failed and refused to obey the order; (3) he acted knowingly and with the deliberate intention of disobeying the order. Under the circumstances, all the necessary elements of criminality were present and appellant was guilty as charged in the indictment unless an affirmative answer to each of his three following contentions is required. Those contentions are that: (1) It was his privilege, by way of defense to the accusation in the present criminal case, to challenge the validity of the order issued by the local board, requiring him to report for induction; (2) the order was void and ineffective; (3) hence it created no duty which he was required to perform, within the meaning of the statute.

In Falbo v. United States,³ the Supreme Court, upholding a conviction in a similar case, rejected appellant's first contention. It said: "Even if there were, as the petitioner argues, a constitutional requirement that judicial review must be available to test the validity of the decision of the local board, it is certain that Congress was not required to provide for judicial intervention before final acceptance of an individual for national service. * * * The Act nowhere explicitly provides for such review and we have found nothing in its legislative history which indicates an intention to afford it. The circumstances under which the Act was adopted lend no support to a view which would allow litigious interruption of the process of selection which Congress created." Italics supplied. Appellant seeks to avoid this decisive language by distinguishing the Falbo case on the theory that it "did not pass upon the validity of any conviction based on an order in which the statutory procedural requirements themselves had not been complied with." The language of the decision in that case, concerning this point, when read in its context, provides no support for appellant's contention. It reads: "To meet the need which it felt for mobilizing national manpower in the shortest practicable period, Congress established a machinery which it deemed efficient for inducting great numbers of men into the armed forces. Careful provision was made for fair administration of the Act's policies within the framework of the selective service process. But Congress apparently regarded `a prompt and unhesitating obedience to orders' issued in that process `indispensable to the complete attainment of the object' of national defense. Martin v. Mott, 12 Wheat. 19, 30, 6 L.Ed. 537. Surely if Congress had intended to authorize interference with that process by intermediate challenges of orders to report, it would have said so. Against this background the complete absence of any provision for such challenges in the very section providing for prosecution of violations in the civil courts permits no other inference than that Congress did not intend they could be made."⁴ Italics supplied in part.

The only distinction between the Falbo case and the present one lies in the reasons asserted to show invalidity of the local board's order. In the Falbo case the reason asserted was that the local board's order followed an erroneous classification made by it. In the present case the reason asserted is that the local board's order followed a classification erroneously made by a non-civilian appeals agency, hence that appellant's appeal to the President was still pending and the board was prohibited from issuing its order to report.⁵ But in each case the order which constituted the basis of the criminal charge was made by the proper local board in the form prescribed by the applicable regulation and was valid on its face. Whatever the reason for its alleged invalidity or impropriety, the order was not subject to judicial review in the manner attempted by Falbo in his case or by appellant in the present case. The Supreme Court's language in the Falbo case is equally applicable here.

It is contended, also, that denial to appellant of this defense resulted in an unconstitutional deprivation of judicial due process. This argument was made and rejected in the Falbo case.⁶ The cases of Panama Refining Co. v. Ryan,⁷ Wichita Railroad & Light Co. v. Public Utilities Commission,⁸ and the Morgan cases,⁹ upon which appellant relies, were not criminal cases and do not even suggest that due process requires judicial review of administrative action by way of defense in a criminal trial. But the short answer to this contention is that — assuming a right in appellant to judicial review — denial to him of the defense in a criminal trial did not cut off that right. His appropriate remedy to vindicate whatever right he may have had was recognized by implication in the Falbo case¹⁰ and directly in Billings v. Truesdell,¹¹ i.e., by writ of habeas corpus. The important consideration of the present case is that Congress deliberately and properly declined to authorize interference, by intermediate challenges, with the administrative process which it set up for mobilizing national manpower in the shortest practicable period. Criminal prosecution for failure to obey a local board's order was intended to expedite that process, not to delay it. So long as there remained available, to persons situated like appellant, remedial procedure for challenging the validity of the administrative process there was no denial of constitutional rights.

The law knows a number of situations in which, even in peacetime, the duty of the citizen to cooperate in effective law enforcement overrides his convenience. Thus, it is his duty to submit to arrest, upon a warrant valid on its face, even though the warrant may turn out later to be invalid.¹² A citizen who resists arrest under such circumstances may subject himself to punishment for so doing, in spite of his complete innocence of the original accusation upon which the warrant was issued.¹³ So, also, one who is held upon a commitment, valid on its face, may be guilty of escape if he forces his way out of custody,¹⁴ even though the commitment, when properly challenged, may prove to be insufficient.¹⁵ Again, one who is a fugitive from a State in which he is unjustly accused of crime may, nevertheless, be subjected to extradition if the indictment and requisition are in proper form.¹⁶ And he may become guilty of a crime, under the federal law, merely by fleeing to another State to escape prosecution.¹⁷ Congress has not acted unreasonably, therefore, in requiring that the procedure which it has established for the selection, classification and induction of men into the armed forces in time of war shall not be interrupted by intermediate judicial review. In the present case, as in those used for comparison in this paragraph, there was legal process, valid on its face; namely, an order of appellant's local board requiring him to report. In the present case, as in those used for comparison, a remedy was available — appropriate both as to time and purpose — to challenge the validity of the order. No more is necessary to satisfy the requirements of due process.

In view of our rejection of appellant's first contention, it is not necessary to consider his second and third. However, it may be noted that our conclusion is strengthened in this respect by the decision of the Supreme Court in Bowles v. United States.¹⁸ The facts of that case are practically identical with those of the present case. In his petition for rehearing Bowles urged, as does appellant here, that the order of the local board was void because it depended upon the action of the Director of Selective Service instead of an agency of appeal composed of civilians. In response to the petition for rehearing the Solicitor General filed a memorandum in which he contended that the use in the Act¹⁹ of the words "agencies of appeal" was not intended to apply to or include the Director of Selective Service when he, by authority of the President, renders decisions on appeals to the President.²⁰ The Supreme Court denied a rehearing without opinion.²¹ If the question is still open it is one which will be appropriate for decision in a proper case, following compliance with an order to report; but it does not call for consideration or decision in the present case.

Affirmed.

GRONER, Chief Justice (dissenting).

Appellant was indicted and found guilty of a violation of the Selective Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq. On the 16th of October, 1940, he registered in the District of Columbia and on March 6, 1941, was classified 1-A by his Local Board. Within the required time thereafter he appealed to the District of Columbia Appeal Board, claiming to be a conscientious objector. His claim in this respect was transmitted to the Department of Justice, in accordance with regulations, and referred by the Department to Mr. E. Barrett Prettyman as hearing officer. In due time the latter, though recognizing that Giese was sincerely and aggressively opposed to war, recommended against...