Kramer v. United States, 9812.

• Citation: 147 F.2d 756
• Decision Date: 23 April 1945
• Docket Number: No. 9812.,9812.
• Parties: KRAMER et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

147 F.2d 756 (1945)

KRAMER et al. v. UNITED STATES.

No. 9812.

Circuit Court of Appeals, Sixth Circuit.

February 8, 1945.

Writ of Certiorari Denied April 23, 1945.

John A. Chamberlain, of Cleveland, Ohio, for appellants.

Francis X. Feighan, of Cleveland, Ohio (Don C. Miller and Francis X. Feighan, both of Cleveland, Ohio, on the brief), for appellee.

Before HICKS, SIMONS, and MARTIN, Circuit Judges.

Writ of Certiorari Denied April 23, 1945. See 65 S.Ct. 1026.

MARTIN, Circuit Judge.

The six appellants, whose cases by their consent were tried jointly in the United States District Court for the Northern District of Ohio, were convicted in a trial by jury of wilful and felonious failure to perform duties required of them by the Selective Training and Service Act of 1940, and the lawful Rules and Regulations issued pursuant thereto. Each was sentenced to five years imprisonment.

All were male citizens of the United States within the age classification subjecting them to the duties prescribed by the Act, were duly registered pursuant to its provisions, and had been allowed by their respective Selective Service Boards their claimed exemptions from combatant and non-combatant training and service in the land or naval forces of the United States. They had been classified in Class IV-E, as conscientious objectors, and had been assigned to work of national importance under civilian direction, in conformity with the promulgated rules and regulations. Pursuant to the power lawfully vested in him, the Director of Public Service eventually designated Camp No. 23 at Sherrodsville, Carroll County, Ohio, as the Civilian Public Service Camp where the work of national importance to which they had been assigned would be performed.

At a time when millions of their fellow countrymen were engaged in gruelling combat with the enemies of civilization on land and sea and in the air, and legions of the best of America's manhood were rendering to God and to Country "the last full measure of devotion," these six able-bodied young males were detailed to the comparatively soft work of soil conservation and tree planting in a civilian camp, in fullest indulgence of their asserted religious opposition to participation in warfare, though fought not from the free choice of a nation bent upon conquest, but in necessary defense of its survival and the preservation of the very religious freedom under which these favored few had claimed and received the highest special privilege.

Yet, these six males bolted the civilian camp; or, as put in the indictment, in June and July, 1943, each left the camp to which he had been assigned "without being released or transferred by proper authority and not in performance of assigned duties or authorized missions and without leave outside of said camp; contrary to the provisions of the Selective Training and Service Act, and as amended, 54 Stat. 885, 50 U.S.C.A.Appendix, § 301, et seq., and the Rules and Regulations issued pursuant thereto,¹ and against the peace and dignity of the United States."

To summarize the assignments of error, appellants contend that the indictments under which they were tried and convicted charge no criminal offense; that the rules and regulations which they admittedly violated were unconstitutional, null and void, and contrary to the Act of Congress relating to conscientious objectors; that the camp to which they were assigned was under military and not civilian direction; and that there is nothing in the Act of Congress which authorizes regulations requiring conscientious objectors to remain in the camp to which they are assigned or to keep their persons, clothing, equipment and quarters neat and clean.

They expand their grievances to embrace compulsory work without pay, leaving their dependents "deprived of protection"; assignment to work under military and not civilian supervision and direction; deprival of religious freedom; subjection to participation in the military and war effort; involuntary servitude; and cruel and unusual punishment.

Setting themselves up as final arbiters of their own rights, they deserted their duties in the work of national importance to which they had been assigned by lawfully constituted authority. They ask this court to reverse their conviction and sentence to penal servitude for civilian-camp desertion, for no better excuse than would justify, in wartime, a deserting soldier to be shot.

The arguments which they press are not new. All too often the jurisdiction of our Nation's courts has been invoked to meet these extreme insistences upon religious freedom as paramount to every public duty owed the Nation which guarantees its existence. The United States Courts have left little to be said in the context.

Notwithstanding the constitutional right of a person to live and work where he will, the Supreme Court has declared that "he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense." Jacobson v. Massachusetts, 197 U.S. 11, 29, 25 S.Ct. 358, 362, 49 L.Ed. 643, 3 Ann.Cas. 765.

In pronouncing the unanimous opinion of the Supreme Court upholding the Selective Draft Law of May 18, 1917, Ch. 15, 40 Stat. 76, 50 U.S.C.A.Appendix § 201 et seq., Chief Justice White said that the court was "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 servi-tude in violation of the prohibitions of the Thirteenth Amendment." Selective Draft Law Cases (Arver et al. v. U. S.), 245 U.S. 366, 390, 38 S.Ct. 159, 165, 62 L.Ed. 349, L. R.A.1918C, 361, Ann.Cas.1918B, 856.

In United States v. Macintosh, 283 U.S. 605, 621, 623, 625, the Supreme Court quoted with approval its expression in United States v. Schwimmer, 279 U.S. 644, 651, 49 S.Ct. 448, 73 L.Ed. 889, that "the influence of conscientious objectors against the use of military force in defense of the principles of our government is apt to be more detrimental than their mere refusal to bear arms"; and declared that whether any citizen shall be exempt from service in the armed forces of the Nation in time of war is dependent upon the will of Congress and not upon the scruples of the individual, except as Congress provides. Mr. Justice Sutherland added with emphasis that "we are a nation with the duty to survive; a nation whose Constitution contemplates war as well as peace; whose government must go forward upon the assumption, and safely can proceed upon no other, that unqualified allegiance to the nation and submission and obedience to the laws of the land, as well those made for war as those made for peace, are not inconsistent with the will of God." The four dissenting Justices, in denying the right of the United States to exact a promise to bear arms as a prerequisite to naturalization, notwithstanding religious or conscientious scruples, conceded that when one's belief collides with the power of the state, the latter is supreme within its sphere and submission or punishment follows. 283 U.S. 605, 633.

In Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L. Ed. 1774, the Chief Justice pointed out that since the Constitution commits to the President and to the Congress the exercise of the war power in all the vicissitudes and conditions of warfare, wide scope for the exercise of judgment and discretion is necessarily granted; that the war power of the national government is "the power to wage war successfully"; is not restricted to the winning of victories in the field and the repulse of enemy forces; but extends to every matter and activity so related to war as substantially to affect its conduct and progress. See also Ex Parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3.

The Supreme Court has declared that legislation must be often adapted to conditions involving details with which it is impracticable for the legislature to deal directly; and that the Constitution does not deny to Congress "the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply." Currin v. Wallace, 306 U.S. 1, 15, 59 S.Ct. 379, 387, 83 L. Ed. 441; Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 79 L.Ed. 446. See also Wayman v. Southard, 10 Wheat. 1, 43, 6 L.Ed. 253; McKinley v. United States, 249 U.S. 397, 39 S.Ct. 324, 63 L.Ed. 668.

In the setting of the instant case, we do not find United States v. Chicago, etc., R. Co., 282 U.S. 311, 328, 51 S.Ct. 159, 75 L.Ed. 359, cited by counsel for appellants, remotely apposite. Nor do we find any merit in the argument that the camp to which appellants were assigned was under military, rather than civilian, direction. From the narrative bill of exceptions, it appears that the four government witnesses, namely, the camp director, the acting assistant director, the superintendent in charge of soil conservation, and an assistant forester, all testified that the actual work performed in the camp was in charge of a civilian. As against this evidence, the defendant Nelson testified merely that "the camp was under regulations handed down by military authority"; the defendant Bristah testified that "the regulations...