Lehr v. United States, 10646.

• Decision Date: 14 January 1944
• Docket Number: No. 10646.,10646.
• Citation: 139 F.2d 919
• Parties: LEHR v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

139 F.2d 919 (1943)

LEHR v. UNITED STATES.

No. 10646.

Circuit Court of Appeals, Fifth Circuit.

December 16, 1943.

Rehearing Denied January 14, 1944.

Bernard A. Golding, of Houston, for appellant.

Douglas W. McGregor, U. S. Atty., and William R. Eckhardt, III, and Joseph W. Cash, Asst. U. S. Attys., all of Houston, Tex., for appellee.

Before SIBLEY, HOLMES, and WALLER, Circuit Judges.

WALLER, Circuit Judge.

Appellant, a male citizen of the United States, thirty-two years of age, a chiropractor, and a married man without children, considering himself essential to the health of the community, chose to follow his own notions about his obligations for military service and to disregard the holding of the Local and Appeal Boards to the contrary. He refused to report for induction when ordered. Prosecution, trial, conviction, sentence, and this appeal followed.

Anteceding these events appellant had been placed by his Local Board in Class I-A. The classification was, by the Appeal Board, affirmed, after which the order of induction followed in due course. After receipt of the notice to report for induction, appellant appeared several times before the Local Board in an effort to secure a change of classification from I-A to III-B on the ground that his occupation as a chiropractor rendered him a registrant necessary to the health of the community. Appellant claimed deferment and exemption under Activity and Occupational Bulletin No. 32, Subject: Health and Welfare Services. This bulletin was issued by National Headquarters of Selective Service System under the authority of subparagraph (e) (1) of Section 305, Title 50 U.S.C.A. Appendix, which authorized the President, under such rules and regulations as he may prescribe, to provide for the deferment of persons found by the Local Board to be necessary to the maintenance of the national health, safety, or interest. Bulletin 32 provides that the Director of Selective Service desires that Local Boards, when considering the classification of any registrant who is a "medical doctor, dentist, or doctor of veterinary medicine", should consult with the State Chairman of the Procurement and Assignment Service, which latter organization was created for the purpose of gathering information with respect to the supply of qualified medical doctors, dentists, and doctors of veterinary medicine. This bulletin in no wise required the Local Board to defer a registrant who was a medical doctor, dentist, or veterinarian, nor to classify him differently from that of any other non-professional and similar registrant, and provided that such registrants would be classified without regard to the fact that a commission in the armed forces might be granted to such registrant. The determination of the classification of such registrants was left, subject to the right of appeal, entirely with the Local Board. Chiropractors are not mentioned in the bulletin, but this would not prevent a deferment by the Local Board if it found the registrant essential to the health of the community. Moreover, Bulletin 32 was not issued until after appellant had refused to report for induction.

In appellant's effort to show that he was essential to the public health of the community he belatedly, or after he had been ordered to report for induction, presented to the State Selective Service Headquarters of Texas numerous letters and testimonials from patients of the registrant to the effect that in the opinion of the authors the appellant should be given a deferred classification as a registrant necessary to the health and welfare of the community and particularly to the health of the individual writers. The State Director forwarded the letters and testimonials to the Local Board, but with a letter in which the State Director did not request the Local Board to reopen the case. Appellant then appeared before the Local Board and announced that he would not go into the Army and could not be inducted. In view of this statement by the registrant the State Director then expressly declined to ask the Local Board to reopen the classification of the registrant.

Section 626.2 of the regulations provides that "the classification of a registrant shall not be reopened after the Local Board has mailed to such registrant an order to report for induction, Form 150, unless the Local Board first specifically finds that there has been a change in the registrant's status resulting from circumstances over which the registrant had no control". The regulations also provide that the Local Board shall reopen and consider anew a registrant's classification upon written request of the State Director or of the Director of Selective Service. The regulations also provide that the Local Board shall not reopen a registrant's classification in a case involving occupational deferment when the Local Board is of the opinion that the information accompanying the request for reopening fails to present any facts in addition to those considered when the registrant was classified, or if the facts so presented would not, in the opinion of the Board, justify a change in the registrant's classification.

There was: (1) No change in the status of the registrant, over which he had no control, between the date of his classification and the date of his request for reopening; (2) No request from the State or National Director of Selective Service that the registration be reopened and considered anew; (3) No information accompanying the request presenting any facts in addition to those considered when the registrant was classified. His questionnaire showed that he was a chiropractor and it is a matter of common knowledge that chiropractors treat patients according to chiropractic methods. His questionnaire showed that his entire earnings were from the practice of his profession.

Appellant seeks a reversal on the ground that the lower court erred in ruling that the registrant could not challenge his classification, which classification, he is contending, was based on an improper construction of the law. In other words, the appellant insists that the Draft Board made an error of law in refusing to reopen the classification of the registrant. Most of the brief of appellant is devoted to the argument that the courts have the power to correct an error of law committed by the Local Board, but without a showing that the Local Board committed an error of law his premise is baseless and his conclusion must fail. We find no error of law or fact in the record.

One of the primary functions of the federal government, as stated in the Preamble to the Constitution, was "to provide for the common defense". The right to raise and support armies was expressly conferred upon the Congress by the Constitution. In the attempt of Congress to provide for the common defense and to raise an army, it enacted the Selective Training and Service Act of 1940, Secs. 301-318, Title 50 U.S.C.A. Appendix,...