Mason v. United States

• Decision Date: 02 February 1955
• Docket Number: No. 14286.,14286.
• Citation: 218 F.2d 375
• Parties: James MASON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

218 F.2d 375 (1954)

James MASON, Appellant, v. UNITED STATES of America, Appellee.

No. 14286.

United States Court of Appeals, Ninth Circuit.

December 9, 1954.

Rehearing Denied February 2, 1955.

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

Lloyd H. Burke, U. S. Atty., Richard H. Foster, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, POPE, Circuit Judge, and BYRNE, District Judge.

POPE, Circuit Judge.

The appellant Mason was convicted under an indictment charging him with having knowingly failed and neglected to comply with an order of his local Selective Service board to report for induction in the armed forces of the United States as provided in the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq. Upon appeal to this court he asserts that the order for induction was invalid and void; that he was denied a fair hearing and due process in the course of his classification by the Selective Service boards; that these boards failed to comply with sundry applicable regulations; and that his classification in Class I-A, as available for full military service, was without basis in fact.

We consider first the contention with respect to the order to report for induction.

As part of its proof, the Government introduced its Exhibit 1 which was the entire Selective Service record relating to the defendant, and which disclosed all the proceedings had before the various boards relating to his classification as a registrant under the Act. This exhibit was received without objection on the part of the defendant and it contains a copy of the order to report for induction. This order was on a printed form furnished by the Selective Service system to the local board and designated SSS Form 252, (revised 8-23-51). It is addressed to the defendant, Mason, and orders him to report to the local board at a designated address at 6:30 A.M. on the 18th day of June, 1953, for forwarding to an induction station. Upon the line provided for signature appears the name "Walter Nixon" followed by the initials, "A.E." The record shows that this Walter Nixon was a member of the board and that the initials are the initials of a Mrs. Earl, the clerk of the local board, and that it was she who signed Nixon's name adding her own initials following the signature.

The contention that the order to report for induction was void and of no effect is based upon the provisions of the following regulation, Title 32, § 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 by 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." It is argued that because there was no proof of a resolution adopted by the local board authorizing the clerk to sign this paper, the record fails to show a valid induction order and hence Mason's failure to report for induction would constitute no offense on his part.

It is unnecessary to consider the question whether the court which heard this case, after jury trial was waived, would be permitted to take into consideration the usual presumption that official action has been regularly performed and hence draw the inference that the resolution of authorization had preceded the appending of this signature by the clerk.¹ This court has held in Talcott v. Reed, 9 Cir., 217 F.2d 360, that the requirement that board orders shall be signed by board members was directory only and that omissions in this regard do not affect the validity of the order. This is in accord with what Judge Goodrich said for the full court sitting en banc in United States v. Hagaman, 3 Cir., 213 F.2d 86, 91: "On the other hand * * * where there has been substantial compliance, so that a man has had all the consideration due him, the courts have refused to reverse for mere technical irregularities." The court was there dealing with a draft board's failure to conform to regulations in respects which did not operate to prejudice any substantial right of the registrant.

We hold therefore that the order to report for induction was a valid one.

This brings us to a consideration of a circumstance present here which distinguishes it from most of the other cases in which this court has had occasion to review judgments of conviction for failure to comply with the induction requirements of the Act. Unlike the registrants in other similar cases, Mason did not report for induction and then simply refuse to submit thereto by taking the step forward or performing the other required overt acts to indicate submission. He refused to report at all. A few days following the sending of the order of induction Mason wrote to the local board: "I will not take the oath, therefore I will not report for induction."

The consequence of this failure to report for induction is that Mason did not exhaust his administrative remedies and hence decision here must be controlled by the rule stated in Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, as applied by this court in Williams v. United States, 9 Cir., 203 F.2d 85, 88,² and by the Court of Appeals for the Second Circuit in United States v. Balogh, 160 F.2d 999, certiorari denied 331 U.S. 837, 67 S.Ct. 1522, 91 L.Ed. 1850. In the Williams case we held that the appellant had not exhausted his administrative remedies within the meaning of the Falbo case since he had not reported for induction at an induction center and therefore "any injury resulting from the action of his Board has not materialized, since he might be rejected."

At the oral argument it was contended that since the decision in the Falbo case the regulation has been amended so as to provide for a pro-induction physical examination;³ that this examination had been given to Mason and hence there was no possibility of his rejection at the induction center. A similar argument was made and rejected in United States v. Balogh, supra, for the reason that under the army regulation of August 10, 1944, there set forth, registrants reporting more than 90 days after their pre-induction physical examination are given a new physical examination; hence, since Balogh had received his pre-induction physical examination more than 90 days before the induction order was sent to him, he was without standing before the court as he had not exhausted his administrative remedies within the rule of the Falbo case.⁴ At the time Mason was given his order to report for induction the army regulation set forth in footnote 7 in the Balogh case had been superseded by a new regulation dated April 8, 1953, which provided, in substance, that if induction was not accomplished within 120 days, in cases of ordinary registrants, or within one year, in cases of postponed registrants, after the pre-induction examination, then those reporting after those times would be submitted to a new physical examination.⁵

The record here shows that Mason was given his pre-induction physical examination on April 5, 1951, and on that day a certificate of acceptability was issued by the appropriate officer. His order to report for induction, was dated June 5, 1953, more than two years later. Hence, under the regulation, last referred to, Mason had he reported for induction, would have been given a new medical examination upon which he might have been rejected. In fact, his selective service record, exhibit 1, contains the unexecuted standard form 88 referred to in the army regulation, bearing his name and indicating that the blank is to be used for an examination upon induction, and the date of examination is June 18, 1953, the date upon which he was ordered to report for induction. We may infer from this that military authorities at the induction center had prepared these blanks for use upon Mason's physical examination and when he failed to appear the unused blanks were inserted in his Selective Service file to be returned to the local board.

In the Balogh case, supra, the court discussed the question of the validity of the army regulation in view of the appellant's contention that the regulation was invalid because it ran counter to the Act of December 5, 1943, which first provided for the preinduction physical examination. The court rejected that argument pointing out that the Act, 57 Stat. 599, 50 U.S.C.A.Appendix, § 304a, used the words "subject to reexaminations" and "periodic reexamination". The language of the Act of December 5, 1943, adopted as an amendment to the 1940 Act, was not carried forward into the 1948 Act, but Mason's preinduction physical examination was provided for by the applicable regulations, Title 32, § 1628.1 to 1628.26. Section 1628.25 provided for the return of the record of that physical examination to the local board together with the certificate of acceptability such as that which was supplied to the local board in Mason's case. Such regulations were authorized by § 10 of the Act, Title 50 U.S. C.A.Appendix, § 460, giving the President authority to prescribe the necessary rules and regulations to carry out the provisions of the Act. § 4(a), Title 50 U.S.C.A.Appendix § 454(a), provided generally for classification and examination of each registrant, as soon as practicable following his registration, "both physically and mentally, in order to determine his availability for induction for training and service in the Armed Forces".

We find nothing in the 1948 Act suggesting any conflict...