United States v. Cain, 418.

• Decision Date: 15 August 1944
• Docket Number: No. 418.,418.
• Citation: 144 F.2d 944
• Parties: UNITED STATES ex rel. TRAININ v. CAIN, Commanding Officer of Camp Upton, N. Y.
• Court: U.S. Court of Appeals — Second Circuit

144 F.2d 944 (1944)

UNITED STATES ex rel. TRAININ v. CAIN, Commanding Officer of Camp Upton, N. Y.

No. 418.

Circuit Court of Appeals, Second Circuit.

August 15, 1944.

Osmond K. Fraenkel, of New York City, for relator-appellant.

Vine H. Smith, Asst. U. S. Atty., of Brooklyn, N. Y. (Harold M. Kennedy, U. S. Atty., and Anthony G. Greco, Asst. U. S. Atty., both of Brooklyn, N. Y., on the brief), for respondent-appellee.

Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Isaac Trainin, hereinafter called relator, was inducted into the armed forces on March 22, 1944, pursuant to the provisions of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq. The same day his father, Rabbi Boruch Trainin, petitioned for a writ of habeas corpus in his behalf on the ground that this induction was unlawful, since he was entitled to a classification of IV-D and exemption from service as a "regular or duly ordained" minister of religion within the meaning of § 5(d) of the Act and Selective Service Regulation 622.44(a), (b), (c), and the writ duly issued. Upon return of the writ, the district court conducted a hearing on three separate days, and then dismissed the petition and quashed the writ in a written opinion dated April 28, 1944. This appeal followed.

Relator is a naturalized citizen of the United States, twenty-five years of age. When he first registered for selective service on October 16, 1940, he was attending Brooklyn College, Brooklyn, New York. Although shortly thereafter he entered St. John's Law School, also in Brooklyn, he stated in his selective service questionnaire in July, 1941, that he was a regular and duly ordained rabbi of the Hebrew Orthodox faith, and was accordingly, after the perfunctory investigation permitted by the limited facilities of his local board, placed in Class IV-D. This classification enabled him to continue the study of law, and in January, 1943, he received the degree of Bachelor of Laws. Several months later he took and passed the New York State Bar Examinations, and during the summer of 1943 served as law clerk to a New York City attorney. Meanwhile, however, doubts were arising regarding the correctness of his exemption from service. As the result of several anonymous communications questioning his standing as a rabbi, his local board re-examined his status in the spring of 1942, but nevertheless continued his IV-D classification. Then in June, 1943, New York City Selective Service Headquarters, pursuant to Selective Service Regulations 626.2(a), (b), and 627.1(a), (b), requested his file from the local board for the purposes of review. An investigator for Headquarters interviewed relator, and he was called before a special advisory panel on theological classifications composed of five eminent Hebrew professional men. When this entire panel reported unfavorably upon his claim for exemption, Headquarters so notified his local board, which thereupon placed him in Class I-A. The usual appeal to the board of appeal and several rehearings before the local board failed to alter this classification or prevent his final induction.

Relator has never attended any seminary in order to become a rabbi. Rather, his only training consisted of studying once a week for two years under Rabbi Jacob Mendelson of Newark and at other times under his father. In his original selective service questionnaire, filed in July, 1941, he stated that he had been ordained by Rabbi Mendelson on June 1, 1938, and had commenced rabbinical practices around January 1, 1939. At about the same time, he presented to his local board two certificates of ordination in the Talmudic language, one by Rabbi Mendelson and one by Rabbi Alexander Levine, both of which, when later translated, were shown to have been dated June, 1940. Thereafter, in November, 1942, he alleged in his occupational questionnaire that he had been a rabbi since March, 1937; but before the advisory panel on theological classifications he stated that he had been ordained and had become a rabbi only in April, 1940. Shortly after the hearing before the panel he returned to Selective Service Headquarters and presented a third certificate of ordination, issued under date of June, 1939, by his father. Then in a letter to the appeal board he claimed to have been ordained by his father in the latter part of 1939, and by Rabbis Mendelson and Levine in May, 1940. Relator's local board received several communications from two rabbinical societies to the effect that he was a qualified member and rabbi; of one of these societies his father was president and Rabbi Levine was secretary. Several rabbis supported his claim before the local board, and four, in addition to his father, testified to his qualification at the hearing below.

Relator asserts that he is the regular rabbi of a congregation in Brooklyn founded by his father, the latter having retired in his favor towards the end of 1938. He also claims to be principal of a Hebrew school operated for children of members of the congregation. The congregation totals only 20 to 30 members, however, and the school has only 10 pupils. Further, there was evidence that his father is still considered the true rabbi of the congregation, and the certificate of ordination, dated June, 1939, by his father describes the latter as rabbi of the congregation, although he allegedly had retired the year before. Relator testified that he customarily performed marriage ceremonies, funerals, and memorial unveiling services for the congregation, but upon cross-examination admitted that he had officiated at only one wedding, the names of the principals of which he could not remember, and two unveilings. He did not file with the city clerk the certificate required to enable him to perform marriages until September 30, 1941, after the question had been raised by the board. Before the advisory panel he showed himself to be generally lacking in rabbinical lore and knowledge of the various Hebrew holy works and testaments.

Section 5(d) of the Selective Training and Service Act of 1940, upon which relator's claim of exemption is based, provides that "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." Selective Service Regulation 622.44(b) defines a "regular minister of religion" as "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." Subdivision (c) of the same Regulation defines a "duly ordained minister of religion" as "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 those duties." Section 10(a) (2) of the Act grants jurisdiction to the local boards to hear and determine "all questions or claims with respect to inclusion for, or exemption or deferment from, training and service" under the Act, and provides that "the decisions of such local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe."

On this appeal relator initially contends that the court below erred in admitting certain documents which were not received by his local board from Headquarters until March 19, 1944, since they were considered by neither local board nor appeal board in making his classification. But the record shows that the local board considered these documents at its meeting on March 20, 1944, two days before his final induction, and then declined to modify its former action. Further, the gist of their contents was included in the minutes of the hearing before the advisory panel, which were received by the local board before any change was made in his original IV-D classification. Turning then to the crux of the appeal, we are asked to reverse the unanimous findings by local and appeal boards — as well as the unanimous report of the advisory panel — that relator did not fall within the statutory exemption. The strength of relator's position is, of course, the support given to his claims by ministers of his own faith. He contends that the persons qualified by knowledge to do so attest to the validity of his credentials, and that the only explicit evidence to the contrary received by the board was the suggestion of members of rival branches of his faith that his qualifications and ordination were not in accordance with their own requirements. The appeal, therefore, presents once again the question of the extent to which courts should review the findings of selective service boards — a question which even after the experience in decentralized military conscription afforded by two wars¹ remains not thoroughly settled, so far at least as borderline cases are concerned.

Undoubtedly the statutory provision that decisions of the selective service boards shall be "final" narrowly limits the scope of judicial examination of board actions; but it is clear that Congress through use of such words cannot deny any registrant the constitutional protections of due process of law. See Angelus v. Sullivan, 2 Cir., 246 F. 54, 63, and cases cited therein. Thus it is error reviewable by the courts when it appears that the proceedings conducted by such boards "have been without or in excess of their jurisdiction, or have been so manifestly unfair as to prevent a fair investigation, or that there has been a manifest abuse...