Rase v. United States

• Citation: 129 F.2d 204
• Decision Date: 29 June 1942
• Docket Number: No. 9164.,9164.
• Parties: RASE v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

129 F.2d 204 (1942)

RASE v. UNITED STATES.

No. 9164.

Circuit Court of Appeals, Sixth Circuit.

June 29, 1942.

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U. S. A. Heggblom, of Detroit, Mich. (U. S. A. Heggblom, P. H. Cale, and G. W. Palon, all of Detroit, Mich., on the brief), for appellant.

Kenneth D. Wilkins, of Detroit, Mich. (John C. Lehr, and Kenneth D. Wilkins, both of Detroit, Mich., on the brief), for appellee.

Before SIMONS, HAMILTON, and MARTIN, Circuit Judges.

SIMONS, Circuit Judge.

The appellant was convicted and sentenced for failure to report for induction under the Selective Training and Service Act of 1940, Title 50 U.S.C.A. Appendix § 301 et seq. Motions for directed verdict at the conclusion of all of the evidence, for new trial, and for judgment notwithstanding the verdict, were denied, and the rulings are assigned as error.

The record discloses that the appellant registered when required so to do, and upon receipt of a questionnaire mailed to him by his local board, claimed to be a conscientious objector opposed to both combatant and non-combatant service in the armed forces; that while he was not a minister of religion he was a minister of the gospel. With the questionnaire the appellant filed affidavits and letters identifying him as a Jehovah Witness. The local board at first classified him as a conscientious objector in classification IV-E. Later he was reclassified in I-A and so notified by card. He then appealed to the board of appeals asking for a IV-D classification as a minister of religion. This classification was denied to him and the I-A classification affirmed. Subsequently, the case was reopened at the appellant's request, by Major Engstrom of the Wayne County Selective Service Headquarters, and the file was sent to the President at Washington for his decision on appeal. The request for the IV-D classification was denied in the decision of the President, but the local board was instructed to reopen the case upon the question of conscientious objection. The appellant was then informed by letter that his case was being reopened, and that if he had evidence for the board to consider he should submit it before a given date. The appellant replied that all information which might prove helpful in arriving at his proper classification had already been submitted to the board, whereupon the board reclassified him as IV-E. From this reclassification no appeal was taken and the board notified the appellant to report for induction into work of national importance under civilian direction on November 7, 1941. On November 6 the appellant responded by letter to this notice, stating he would not report for induction as ordered, because to do so would be in violation of his covenant with his Creator, Jehovah God. Notice of suspected delinquency was mailed to the appellant on the 7th of November, and failing to appear for induction as required, his delinquency was reported to the United States Attorney, and indictment and trial followed.

The principal error complained of is the failure of the court to direct a verdict of not guilty on the ground that the finding of the local board was not the result of a full, fair, and impartial hearing, and that its classification of the appellant in IV-E, upon denial of his classification as a minister of religion under IV-D, was a nullity; wherefore, no offense was committed by failure to report for induction under § 11 of the Act. Other questions raised in brief and argument and by the statement of errors, are subsidiary or collateral to this main question.

The Selective Training and Service Act of 1940, like its predecessor, the Conscription Act of 1917, 50 U.S.C.A. Appendix § 201 et seq., is a completely integrated statutory project for the registration, classification and induction into the armed services of all male citizens of the United States, and all male alien residents who have declared citizenship intentions within prescribed age limits, with certain narrow exceptions and exemptions. All registrants are subject to classification which protects the exemptions and deferments prescribed by the Act or the regulations, and all questions or claims with respect to exemption are committed by the Act to the jurisdiction of the registrant's local board for determination, subject to an appeal to the appeal board, and from the appeal board to the President of the United States. No power to review any classification, or the denial of an exemption, is conferred upon the courts. It follows, therefore, that a decision of the board made upon substantial evidence after a fair opportunity to be heard has been granted the registrant, is final and conclusive except only as it may be set aside by the appeal board or the President. Angelus v. Sullivan, 2 Cir., 246 F. 54.

While the rule is established that the action of such local boards, within the scope of their authority, is final and not subject to judicial review when the investigation has been fair and the findings supported by substantial evidence, nevertheless, upon proof that the investigation has not been fair or that the board has abused its discretion by a finding contrary to all the substantial evidence, relief may be accorded by the courts under the writ of habeas corpus, Chin Yow v. United States, 208 U. S. 8, 28 S.Ct. 201, 52 L.Ed. 369; Angelus v. Sullivan, supra; Arbitman v. Woodside, 4 Cir., 258 F. 441; United States v. Kinkead, D.C.N.J., 248 F. 141, although even then it must first appear that the registrant has exhausted his administrative remedies under the Act. Johnson v. United States, 8 Cir., 126 F.2d 242.

The question, therefore, before the court below, as we view it, was not whether there should have been submitted to the jury the fact issue as to whether or not the appellant was a minister of religion and so entitled to exemption under the Act, because neither to the court not to the jury has decision on such fact been committed by the law. The appellant admitted that he was ordered to appear for induction and failed to respond, so that the only question of fact involved was whether the local draft board had accorded the appellant a fair and impartial hearing, and whether its decision was based upon the evidence before it or was arbitrary and capricious. Assuming, without deciding (compare United States v. Grieme, 3 Cir., 128 F.2d 811 decided June 9, 1942), that the decision of the draft board may collaterally be attacked in a prosecution for violation of the terms of the Act, we find, therefore, no error in the failure of the court to submit to the jury for decision the question whether the appellant's status was that of minister of religion and no error in denying the requests to charge upon this issue.

The appellant contends that the finding of the local draft board that the defendant was not a minister of religion and so not entitled to a IV-D classification, was unsupported by substantial evidence, that the board failed to give him a fair and impartial hearing and abused its discretion in denying him his proper classification. It must be observed, however, that we are dealing with an exemption, and that under familiar rules of statutory construction, the appellant must bring himself clearly within the exempted class. Section 303(a) recites that except as otherwise provided in the Act, every male citizen of the United States between the ages of 21 and 36 at the time fixed for his registration, shall be liable for training and service in the land or naval forces of the United States. Section 305(d) is as follows: "Regular or duly ordained ministers of religion, and students, who are preparing for the ministry in theological or divinity schools recognized as such for more than one year prior to the date of enactment of this Act, shall be exempt from training and service (but not from registration) under this Act." Section 310(a) authorizes the President to prescribe the necessary rules and regulations to carry out the provisions of the Act. In pursuance of this authority § 360 of Vol. 3 of the Selective Service Regulations, reads as follows:

"Class IV-D: Minister of religion or divinity student.

"A. In Class IV-D shall be placed any registrant who is a regular or duly ordained minister of religion or who is a student preparing for the ministry in a theological or divinity school recognized as such for more than 1 year prior to the date of enactment of the Selective Training and Service Act (September 16, 1940).

"B. A `regular minister of religion' is a man who customarily preaches and teaches the principles of religion of a recognized church, religious sect, or religious organization of which he is a member, without having been formally ordained as a minister of religion; and who is recognized by such church, sect, or organization as a minister.

"C. A `duly ordained minister of religion' is a man who has been ordained in accordance with the ceremonial ritual or discipline of a recognized church, religious sect, or religious organization, to teach and preach its doctrines and to administer its rites and ceremonies in public worship; and who customarily performs...