Kent v. United States

• Decision Date: 26 September 1953
• Docket Number: No. 13648.,13648.
• Parties: KENT v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

207 F.2d 234 (1953)

KENT v. UNITED STATES.

No. 13648.

United States Court of Appeals, Ninth Circuit.

September 26, 1953.

J. B. Tietz, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Ray H. Kinnison, George Treister, Manuel L. Real, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before ORR, Circuit Judge, and MATHES and LEMMON, District Judges.

ORR, Circuit Judge.

Appellant, pursuant to an order of his local draft board, refused to be inducted into the armed forces of the United States. He was charged with a violation of the Selective Service Act of 1948, 50 U.S.C.A.Appendix, § 462, and after trial was convicted.

In December, 1948, appellant claimed exemption from military service on the ground that he was a conscientious objector. His local board rejected his claim and classified him as 1-A. Appellant challenged this classification and requested a personal appearance before the local board. The request for personal appearance was granted. Appellant appeared and was heard. Thereafter the board continued the original classification and an appeal was taken to the appeal board. An investigative report was made by the Federal Bureau of Investigation. A hearing was held by a hearing officer of the Department of Justice at which appellant was present. The hearing officer recommended that appellant's claim for classification as a conscientious objector should be denied. The appeal board, by unanimous vote, thereafter affirmed the 1-A classification. On August 2, 1951, appellant was ordered to report for induction. His induction was postponed pending review of his case by the National Headquarters of the Selective Service System. An appeal to the President of the United States was taken and the 1-A classification again upheld. On November 9, 1951, appellant was directed to report for induction by an order signed in the following manner: "By Direction of Local Board No. 122, E. H. Middleton, Group Coordinator." Pursuant to this order appellant appeared at the induction station on November 20, 1951, but refused to submit to induction.

Appellant argues that he was justified in refusing to submit to induction because the order therefor was illegal in that it was signed by an unauthorized person. There is no contention by appellant that the order to report was not in fact an order of the board. His contention is that the order to appear was signed by the clerk of the board, a function which could be performed only by a board member. He argues that it is a requirement of the Selective Service regulations that local board members sign orders of induction and that this duty cannot be delegated.

Section 1604.59 of the Selective Service Regulations provides:

"§ 1604.59. Signing official papers. Official papers issued by a local board may be signed by the clerk of the local board if he is authorized to do so by resolution duly adopted and entered in the minutes of the meetings of the local board, provided that the chairman or a member of the local board must sign a particular paper when specifically required to do so by the Director of Selective Service." 32 C.F.R. § 1604.59.

It is undisputed that E. H. Middleton, who signed the order, served in the capacity of clerk for the local board and was duly authorized to sign official papers issued by the board. She had authority to sign any paper, except those in which a member of the board is specifically required to sign by the Director of Selective Service. We find no requirement that a member of the local board must sign an order to report for induction (SSS Form No. 252). Appellant thinks he finds support for his contention in Regulation § 1606.51. We are unable to agree. It provides:

"§ 1606.51. Forms made part of regulations. (a) All forms and revisions thereof referred to in these or any new or additional regulations, or in any amendment to these or such new or additional regulations, and all forms and revisions thereof prescribed by the Director of Selective Service shall be and become a part of these regulations in the same manner as if each form, each provision therein, and each revision thereof were set forth herein in full. Whenever in any form or in the instructions printed thereon, any person shall be instructed or required to perform any act in connection therewith, such person is hereby charged with the duty of promptly and completely complying with such instruction or requirement." 32 C.F.R. § 1606.51.

The form provided by the Selective Service System, known as SSS No. 252, has under the line provided for a signature, the words "............."

"Member of Local Board"

This is no order or admonition for a particular person to sign. It is placed there merely as a convenience for a member of the board in case he elects to sign, a right residing with him notwithstanding a delegation may have been made to a clerk. Regulation § 1604.59 is controlling. It provides that a board member must sign official papers only when specifically required to do so by the Director. The mere placing of a title below a signature line is no such specific requirement. The notification to appear was given in response to a determination made by the board. Appellant responded thereto. He in no manner was prejudiced thereby. He did not place his refusal to be inducted on the ground of improper notice or order. He refused because of his alleged conscientious objector beliefs and would have refused had the order to appear been signed by each member of the board. In any event, the action complained of here could be, at most, a failure to comply with formal requirements where no prejudice resulted and cannot operate to vitiate the subsequent refusal to submit to induction. United States v. Walden, D.C.N.D.Ga. 1944, 56 F.Supp. 777; U. S. ex rel. Bergdoll v. Drum, 2 Cir., 107 F.2d...