Klopp v. Overlade

• Decision Date: 08 June 1946
• Docket Number: No. 1116.,1116.
• Citation: 66 F. Supp. 450
• Parties: KLOPP v. OVERLADE, Warden.
• Court: U.S. District Court — Southern District of Indiana

66 F. Supp. 450

KLOPP v. OVERLADE, Warden.

No. 1116.

District Court, S. D. Indiana, Indianapolis Division.

May 28, 1946.

On Motion for Admission to Bail June 8, 1946.

Hayden C. Covington, of Brooklyn, N. Y., for plaintiff.

B. Howard Caughran, of Indianapolis, Ind., for defendant.

LINDLEY, District Judge.

Petitioner, having been classified by his local board in Class IV — E as a conscientious objector to military service and having been physically examined, was ordered to report to his local board for induction into work of national importance. Failing to comply, he was indicted and convicted for failure to report and the conviction affirmed by the Circuit Court of Appeals for the Sixth Circuit in Klopp v. United States, 148 F.2d 659. No application for certiorari was filed and he was, thereupon, in execution of the judgment, incarcerated in the United States penitentiary at Terre Haute, Indiana. He has now filed his petition here for a writ of habeas corpus averring that he is illegally confined in that the order of the local board classifying him as a conscientious objector instead of a minister, was arbitrary and capricious and, therefore, void; that, by the refusal of the District Court to permit him to introduce evidence in support of his claim of exemption under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., as a minister of religion, he was deprived of a fair and impartial trial. These same contentions were made in the District Court at the time of the trial and in the Court of Appeals upon appeal and decided against him.

The evidence discloses that petitioner registered under the Selective Training and Service Act on October 16, 1940. In his questionnaire filed with his board June 9, 1941, petitioner stated that he was a university graduate, then working as secretary-treasurer for the Reed-Klopp Company, retail furniture dealer, at Middletown, Ohio, doing the work of auditor, bookkeeper, paymaster, manager and proprietor-employer, hiring some 20 paid workers, at an average weekly earning of $180. To the question as to what other business he was engaged in, he replied "minister," saying that he had been a minister since June, 1940, but not formally ordained. He further stated that he was a conscientious objector to both combatant and noncombatant military service.

On June 12, 1941, he filed a special form prescribed for conscientious objectors, stating therein that, because of his belief in the Bible, he was opposed to participation in any kind of military service, whether combatant or noncombatant. In the required form as to his occupation, on June 16, 1942, he stated that he was then secretary-treasurer of the furniture store; that he had been employed therein for ten years, beginning in 1932, and that his duties were overseeing and assisting in bookkeeping, accounting, general office work, payroll handling and recording, and handling files, reports and claims. He said that work for which he was next best fitted was that of newspaper photography in which he had had three years experience; that he had worked as radio-repairman and in writing advertising for a retail furniture store. Amongst occupations for which he said he thought he might be qualified, petitioner checked the words "accountant" and "administrative official," and under the heading "other professional or scientific occupation," he inserted the word "ministerial work." On October 12, 1942, the registrant filed an affidavit as to his financial status and dependents, stating that he had two children living with his divorced wife and that in the year before he had earned $18,000 as secretary-treasurer of his company. In a later affidavit, dated September 3, 1943, he said that during the preceding year he had earned $16,500 in the same occupation and in operating a farm of 122 acres, and that his earnings on that date amounted to $250 per week.

Petitioner was originally classified in Class III — A, later in Class "I" and finally on November 15, 1943, in Class IV — E, conscientious objector. Following this, he wrote his board requesting a personal conference. Permission was granted, and he appeared before the board on November 29, 1943. He supplied the board with his affidavit of November 26, 1943, certificates of several members of Jehovah's Witnesses relative to his religious activities, certificates of others as to their opinion as to his status in the organization, a letter from the Watchtower Bible and Tract Society indicating that he was then assistant company servant, a copy of a magazine called "Consolation" and a letter from his father. The latter document stated that petitioner was "certainly a key men in our organization, as he has been employed regularly since July, 1928, is in charge of all financial operations and handles all of the many tax problems as well as the many regulations to which we are subjected." His absence, said his father, "would complicate and largely nullify our tax and regulation procedures." The affidavit averred that it was possible, if petitioner was compelled to leave the store, its operation would have to be discontinued and the entire stock disposed of at auction or otherwise, and that such an event would be a calamity to the community. The record of the board discloses further that the registrant stated at that time that he devoted some 35 to 38 hours per week to the discharge of his duties with the company and that he owned a farm which was operated by a hired man.

The board informed petitioner on December 2, 1943, that, after further consideration of his case since his personal appearance, it had declined his request for reclassification in IV — D, minister of religion. The record discloses that on January 15, 1944, petitioner's file was sent to state headquarters for examination, that that office returned the file January 15, 1944, setting forth the reasons which, in the opinion of that office, justified the local board in refusing to classify the registrant in Class IV — D. Upon appeal to the appeal board, petitioner's classification was affirmed by a unanimous vote. Following this on February 10, 1944, he was assigned to work of national importance under civilian direction and directed to report for such work on March 10, 1944. He failed to report. Having been indicted, he pleaded not guilty, was tried by a jury and sentenced to prison and fined.

The foregoing facts are undisputed and I deem them material because, as I understand the law, even if I have jurisdiction to review the facts, there is only one question which I can reach and that is whether there was substantial evidence before the administrative body to support the classification made. I am not permitted to substitute my judgment for that of the administrative body upon questions of fact, to weigh the evidence or pass upon questions of credibility. Irrespective of the details of the evidence presented to the board by petitioner as to his averred ministerial vocation, I could not, even if I should believe him to be a minister of the gospel within the Act, set aside the board's order, hold it arbitrary or capricious or treat it as a nullity, in view of the fact that substantial evidence was presented to support the board's classification as a conscientious objector and its conclusion that he should not be classified as a minister. Upon the facts, therefore, I find that there was substantial evidence before the administrative body to support the finding and that its order consequently is not a nullity. "The provision making the decisions of the local boards `final' means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant." Estep v. United States, 66 S.Ct. 423, 427.

The petitioner raised before the trial court all the questions that he now presents. He asked that court to hear evidence as to the merits upon his claim of being a minister. The court refused to admit the evidence and this was assigned as error in the Circuit Court of Appeals. That court affirmed the judgment. No further review of the errors assigned was ever applied for.

The remedy of habeas corpus can not be used as a substitute for writ of error. In Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009, the court said: "That the trial court had jurisdiction to try and punish the appellant for the offense with which he was charged is not disputed. The attempt is collaterally to impeach the record, showing upon its face that a lawful jury was duly impaneled, sworn and charged. Appellant's remedy, as suggested in the mandamus proceeding, was by writ of error. He did not avail himself of it, and, whatever may have been the cause or excuse for not doing so, habeas corpus cannot be used as a substitute. (Citing cases.) * * * The court below was right in ruling that it was without authority to review or set aside the action of the trial court, for, as this court said in Sargeant v. State Bank of Indiana, 12 How. 371, 385, 13 L.Ed. 1028: `* * * Whatever may be the powers of a superior court, in the exercise of regular appellate jurisdiction, to examine the acts of an inferior court, the proceedings of a court of general and competent jurisdiction cannot be properly impeached and re-examined collaterally by a distinct tribunal, one not acting in the exercise of appellate power.'" See also Rea v. McDonald, 5 Cir., 153 F.2d 190, certiorari denied 66 S.Ct. 820.

So here the District Court had jurisdiction...