Sunal v. Large, 5490.

• Decision Date: 20 January 1947
• Docket Number: No. 5490.,5490.
• Parties: SUNAL v. LARGE, Superintendent, Federal Prison Camp.
• Court: U.S. Court of Appeals — Fourth Circuit

157 F.2d 165 (1946)

SUNAL v. LARGE, Superintendent, Federal Prison Camp.

No. 5490.

Circuit Court of Appeals, Fourth Circuit.

July 29, 1946.

Writ of Certiorari Granted January 20, 1947.

COPYRIGHT MATERIAL OMITTED

Hayden C. Covington, of Brooklyn, N. Y. (Horace S. Meldahl, of Charleston, W. Va., on the brief), for appellant.

Irving S. Shapiro, Atty., Department of Justice, of Washington D. C. (Theron L. Caudle, Asst. Atty. Gen., Leslie E. Given, U. S. Atty., of Charleston, W. Va., and Robert S. Erdahl, Atty., Department of Justice, of Washington, D. C., on the brief), for appellee.

Before GRONER, Chief Justice, U. S. Court of Appeals for the District of Columbia, SOPER, Circuit Judge, and CHESNUT, District Judge.

CHESNUT, District Judge.

The appellant in this habeas corpus case, Theodore Martin Sunal, a Jehovah's Witness, was indicted, tried and convicted in the Western District of Pennsylvania under section 11 of the Selective Training and Service Act of 1940, 54 Stat. 894; 50 U.S. C.A. Appendix, § 311, for refusing induction into the Armed Forces of the United States after reporting for induction under an order of his Local Board, and being found physically fit upon examination. At the trial of his case he offered to submit evidence which he contended would show that he was entitled to exemption from military service in that he was a minister of religion and that he had been improperly classified for military service by the Local Board. The trial court refused to admit the tendered evidence and upon his conviction by a jury he was, on March 22, 1945, sentenced to five years imprisonment. He did not appeal but shortly after the decision by the Supreme Court, February 4, 1946, in the similar cases of Estep and Smith, 66 S.Ct. 423, he filed a habeas corpus petition in the Southern District of West Virginia where he was then confined. In the petition he alleged that the judgment and sentence under which he was confined was null and void because the court lacked jurisdiction by reason of the denial of his constitutional right of due process consequent upon rejection of the evidence tendered by him. The habeas corpus court issued the writ and, after the return by respondent, held a hearing in the case, and upon consideration of the evidence offered by the petitioner, concluded that it was legally insufficient to show an improper classification by the Local Board and thereupon remanded the petitioner who, on motion of his counsel, was admitted to bail pending appeal.

Two questions are presented on this appeal: (1) A matter of procedure, whether the remedy of habeas corpus was available to the appellant under the circumstances, and (2) if so, whether the remand of the petitioner was proper under the evidence submitted to the habeas corpus court.

First: Counsel for the appellee (respondent in the habeas corpus proceeding) in support of his contention that habeas corpus was not an available remedy to the petitioner, refers to the often stated principle that habeas corpus cannot be used as a substitute for an appeal or a writ of error. Ex parte Siebold, 100 U.S. 371, 375, 25 L.Ed. 717; In re Coy, 127 U.S. 731, 758, 8 S.Ct. 1263, 32 L.Ed. 274. But, as recently pointed out in Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 83 L.Ed. 455, and Waley v. Johnston, 316 U.S. 101, 62 S. Ct. 964, 86 L.Ed. 1302, the rule is not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ is apparent, and it is the only remedy available to the petitioner.

It is quite impossible to overestimate the great importance of the writ of habeas corpus as a "precious safeguard of personal liberty." Its history in English and American jurisprudence is familiar to all students of constitutional government. It was in use in England as a common law writ long prior to its firm statutory establishment by the famous Habeas Corpus Act of May 27, 1679, (31 Car. II) "for the better securing of the liberty of the subject." Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650; Blackstone Comm. Cooley's 4th Ed. Book III, c. 8. Its importance was recognized in the Federal Constitution which, in Art. I, § 9, provided "the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281. The authority for its issuance by federal courts and judges and the limitations thereon and the procedures therein are regulated by federal statute. 28 U.S.C.A. §§ 451-466. Section 453 confers the power to issue it in a case of this general nature, subject however to the general principles with regard to the exercise of the power established by judicial decisions.

Despite the general rule that habeas corpus may not be properly used as a substitute for an appeal, on its face seemingly applicable to the instant case, there are nevertheless cases where, in view of exceptional circumstances, the general rule should not be applied. We find such exceptional circumstances in the instant case in view of the recently developed doctrine of the Supreme Court relating to the "finality" of decisions of Local Boards under the Selective Service Act of 1940, 50 U.S.C.A. Appendix, § 310(a). In Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, it was held by a divided court in a criminal prosecution for wilful failure to obey the Local Board's order to report for assignment to work of national importance, that the registrant was not entitled to show that he had been erroneously classified as a conscientious objector rather than as a minister of religion; and that, assuming the existence of a constitutional requirement that judicial review be available to test the validity of the Board's classification, Congress was not required to provide for such review prior to final acceptance of the registrant for service.¹ The effect of the decision in that case was very widely understood by the Bench and Bar to be that there could be no judicial review of the Board's classification until after the administrative process had been finally completed by the induction of the registrant into military service; but that thereafter he could obtain this review by a writ of habeas corpus addressed to his military commander.² In Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917, the court held that a registrant, who had reported for induction but refused to voluntarily take the oath of induction, was not lawfully subject to military discipline and was only amenable to civil law under section 11 of the Selective Service Act. But in the latest of this sequence of cases, Estep and Smith v. United States, 66 S.Ct. 423, 435, the court held that a registrant who voluntarily reported for induction but nevertheless refused to take the induction oath, had completed his administrative remedies to the end, and, when thereafter indicted for failure to voluntarily take the oath of induction, was entitled at his trial to show that his classification for military service and denial of his claim for exemption therefrom as a minister of religion, as determined by the order of his Local Board, was "beyond the jurisdiction" of the Local Board if without foundation in fact, and that the Board's order was therefore a nullity.

It is to be noted in the instant case that Sunal was sentenced in the criminal case March 22, 1945, which was more than a year subsequent to the decision in the Falbo case on January 3, 1944, and nearly a year prior to the decision in the Estep and Smith cases. It is also to be noted that the defense offered by Sunal, and rejected by the court, was substantially the same as that offered by Estep and Smith and for them held admissible. It is inferable and indeed probable that the evidence offered by Sunal was rejected by the trial judge on the supposed authority of the Falbo case. And it is a further fair inference that no appeal from the judgment and sentence was taken in the Sunal case by reason of counsel's understanding that it would be futile in view of the Falbo decision. The time for appeal in the Sunal case had expired long before the decision in the Estep and Smith cases. The inevitable result is that the only available remedy remaining to Sunal was relief by habeas corpus, if he was entitled to any relief on the merits of his case. Furthermore we think the opinion of the majority of the court in the Estep and Smith cases indicates that in such a situation habeas corpus is an appropriate remedy. Mr. Justice Douglas, speaking for the court, there said:

"But if we now hold that the registrant could not defend at his trial on the ground that the Local Board had no jurisdiction in the premises, it would seem that the way would then be open to him to challenge the position of the local board after conviction by habeas corpus. The court would then be sending men to jail today when it was apparent that they would have to be released tomorrow.

"We do not suggest that because Congress has provided one judicial remedy another should be implied. We may assume that where only one judicial remedy is provided, it normally would be deemed exclusive. But the fact that habeas corpus after conviction is available in these cases gives added support to our reading of § 11. It supports a rejection of a construction of the Act that requires the courts to march up the hill when it is apparent from the beginning that they will have to march down again.

"We express no opinion on the merits of the defenses which were tendered. Since the petitioners were denied the opportunity to show that their local boards exceeded their jurisdiction, a new trial must be had in each case." (Italics supplied.)

We think this expression of view by the court necessarily means that in a case where the proffered evidence had been rejected without consideration as to its legal effect, and the time had passed for an appeal, the convicted ...