Olvera v. United States, 15260.

• Citation: 223 F.2d 880
• Decision Date: 17 June 1955
• Docket Number: No. 15260.,15260.
• Parties: Jesus M. OLVERA v. UNITED STATES of America.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

223 F.2d 880 (1955)

Jesus M. OLVERA v. UNITED STATES of America.

No. 15260.

United States Court of Appeals Fifth Circuit.

June 17, 1955.

Hayden C. Covington, Brooklyn, N. Y., Tom S. Williams, Houston, Tex., for appellant.

C. Anthony Friloux, Jr., Asst. U. S. Atty., Malcolm R. Wilkey, U. S. Atty., Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and CAMERON, Circuit Judges.

HUTCHESON, Chief Judge.

Indicted and convicted for refusing to perform, as a conscientious objector, civilian work in the Texas State Hospital at Austin which he had been ordered by his local board to do, defendant, appealing from the sentence of two years in the penitentiary imposed upon him for disobeying the order, is here putting forward two grounds for the reversal of the judgment.

The first ground is that appellant was deprived of due process in that the board wrongfully denied him a hearing upon his request to reopen his classification and reclassify him as a full time minister, and that because of its failure to accord him such procedural due process, its order, for disobedience of which he was convicted and sentenced, was invalid, and his sentence may not stand.

His second ground is: that, if he was correctly and legally classified as a conscientious objector and placed in Class 1-O, he was liable only to perform civilian work contributing to the national health, safety, etc., and was not liable to do work for the State of Texas; and that the imposition of such work was not only beyond the power of the board but was unconstitutional, subjecting him to involuntary servitude in violation of the Fifth and Thirteenth Amendments.

Agreeing, as we do, with appellant's first ground, we find it unnecessary to decide or even consider the second ground.

Tried to the court on a jury waiver, the case was submitted on an agreed statement of facts consisting of the record of the local board and stipulations as to matters occurring before the board but not reduced to writing there. At the conclusion of the hearing the district judge, filing a memorandum opinion¹ giving his reasons therefor, found defendant guilty as charged and sentenced him to serve two years in the penitentiary.

In our opinion, in proceeding as he did to undertake to decide the merits of the applicant's claim for reclassification, which the board had declined to do, the court took upon itself a function delegated not to it but to the board, and convicted defendant upon what the board had done not rightfully after opening the classification but wrongfully after refusing to open it.

While at the time the district judge wrote his opinion deciding this case, there may have been warrant in the decided cases² for his decision, we are in no doubt that the decisions of the Supreme Court, handed down on March 14, 1955,³ taken together, have made it clear that this warrant no longer exists. Indeed the principle finally established by the Supreme Court, in its struggle to reconcile⁴ the fundamental principles of liberty and due process with the failure of the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq., to make specific provision for judicial review of board action and for a jury trial on the controlling issue makes it certain that this is so. This principle, that when every requirement of due process has been observed by the board, its fact decisions, unless wholly unsupported, are not subject to review, makes it certain that this is so. Under this principle, it is of the essence of the validity of board orders and of the crime of disobeying them that all procedural requirements be strictly and faithfully followed, and that a showing of failure to follow them with such strictness and fidelity will invalidate the order of the board and a conviction based thereon.

The reaction against and retreat from the rigors of the Falbo decision, that board orders on which conviction of crime and the deprivation of liberty are based, convictions in effect by administrative fiat, are unreviewable, was to some extent begun in the earlier decisions. It remained however for these latest cases to bring the reaction almost full circle around by pointing out the essentiality to due process of the recognition of principle that if the deprivation of liberty is to be in effect accomplished by the action, in the stress and pressure of a war effort, of administrative bodies of laymen, strict compliance with every procedural requirement is essential to the board's jurisdiction and the validity of its orders. So strongly does this stand out in the four cases just decided, that they may be said to be a new Magna Charta of liberties in conscientious objector cases, a turning back from conviction by administrative absolutism to conviction only in accordance with the tradition of due process and the law of the land for which the Milligan case stands in our jurisprudence like a beacon set upon a hill:

"* * * The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle; and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct, to leave room for misconstruction or doubt of their true meaning. Those applicable to this case are found in that clause of the original Constitution which says, `That the trial of all crime, except in case of impeachment, shall be by jury;\' and in the fourth and sixth articles of the amendments. * * *"⁵ Ex parte Milligan, 4 Wall. 2, 71 U.S. 2, at page 119, 18 L.Ed. 281.

When all is said and done, what is in question in these and other like cases is that reconciliation of law with liberty, which distinguishes a government of laws from one of men. Therefore, in construing and applying the Selective Training and Service Act in conscientious objector cases, these things must be kept in mind: (1) the statute under construction is a statute of...