United States v. Di Lorenzo, 1.

• Decision Date: 11 May 1942
• Docket Number: No. 1.,1.
• Citation: 45 F. Supp. 590
• Parties: UNITED STATES v. DI LORENZO.
• Court: U.S. District Court — District of Delaware

45 F. Supp. 590

UNITED STATES v. DI LORENZO.

No. 1.

District Court, D. Delaware.

May 11, 1942.

Stewart Lynch, U. S. Atty., of Wilmington, Del., for plaintiff.

William Poole, of Wilmington, Del., for defendant.

No. 1 Dec. Term, 1941.

LEAHY, District Judge.

Defendant was indicted under Section 11 of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix § 311, for failure to report for work of national importance. By consent, he was tried to the court without a jury.

Di Lorenzo registered in compliance with Section 2 of the Act and filed his questionnaire. He there stated that, as a conscientious objector, he was opposed to combatant and to non-combatant service. At the same time, he stated under "Series VIII—Minister, or Student Preparing for the Ministry" that he was a minister of religion and had been since his ordination on December 20, 1936. After several hearings, the Local Board classified the defendant as a conscientious objector in class IV-E.

Thereupon, Di Lorenzo (unlike the defendant in United States of America v. Michael Kowal, D. C., 45 F.Supp. 301, decided this day) appealed his classification. Before the Appeal Board, he sought to establish that he was a minister of the religious group known as Jehovah's Witnesses. After consideration of the evidence filed, the Appeal Board upheld the classification as fixed by the Local Board.

On October 23, 1941, the Local Board entered its order directing the defendant to report for work of national importance at Camp Potapsco, Maryland. The indictment charges that the defendant did on November 7, 1941, "unlawfully, knowingly and feloniously fail and neglect to report * * * for work of national importance * * *" in conformity with the order of the Local Board. The defendant pleaded not guilty.

Di Lorenzo claims that he has the right in a criminal action to prove as matter of defense that he is a "regular or ordained minister of religion." He contends that, by so showing, he establishes that the action of the board was illegal and that he is not guilty since he merely refused to obey a void order. He does not contend that he was denied the opportunity of presenting evidence either before the Local or Appeal Board. And he did avail himself of this right to appeal.¹ He was permitted to present and he did, in fact, present evidence on his classification. Much of this evidence was documentary, and explained the teachings of his religion. But it is of such a nature that I shall not pause to describe it, nor shall I comment on its weight and probative value. Both boards considered this evidence.

With the exceptions of certain persons in the armed services of the United States and representatives of other governments mentioned in Sec. 5(a) of the Statute, 50 U.S.C.A. Appendix § 305(a), all male citizens and aliens who have declared their intention to become citizens must register, if within stated age limits. This includes ministers. The provision is not that ministers are exempt. It is, on the contrary, that registrants who are classified as ministers by local boards or boards of appeal are exempt from service. This classification necessarily depends upon facts. As the court in Johnson v. United States, 8 Cir., 126 F.2d 242, 247, stated:

"The method of determining the fact situations is defined by the Act, sec. 10(a) (2), 50 U.S.C.A. Appendix § 310(a) (2), as a Selective Service System, which `shall provide for the classification of registrants * * *.' The machinery to effectuate this method is made up of local boards and appeal boards. The local boards have power `to hear and determine * * * all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this Act of all individuals within the jurisdiction of such local boards' (italics added). Appellant's matter here is a claim to `exemption * * * from' training and service. Clearly it is a matter submitted by the Act to the jurisdiction of the local board and for its determination. Any such determination of the local board is made subject to an appeal to an appeal board. The President is authorized to create and establish this System; and, broadly, to prescribe the necessary rules and regulations to carry out the provisions of the Act, sec. 10(a) (1). In accordance with those powers, the President has created and established such System and has promulgated such rules and regulations. This System and these rules and regulations provide proper means and procedure for determining fact situations as to claims for exemption, for deferment and for inclusion in particular categories, as to service, prescribed by the Act; and also for a review of such determinations by appeal boards.

"From the above outline of the pertinent requirements and provisions of the Act and of the Regulations, the following is clear: Appellant was required to register; his claim for exemption as a minister must be presented to the local board; that board must determine the fact as to appellant being a minister (within the meaning of the Act) and, therefore, entitled to the exemption provided by the Act; such determination of the local board is subject to appeal to the appeal board."²

Di Lorenzo's defense is that the Local Board rejected his credentials as a minister and accordingly acted arbitrarily in not classifying him in IV-D. It rather appears from the evidence, however, that both the Local and Appeal Boards considered his credentials but found they were without sufficient probative value. In short, the defendant's contention is simply that the result reached by the two boards did not suit him.³

It needs no citation of authority at this late date to demonstrate the rule that a federal court should not disturb a finding of an administrative board unless the acts complained of are clearly beyond the grant of administrative authority. The courts during World War I were approaching the rule. Some said that once the executive departments, or their subordinate officials, found certain facts to be existent, the federal district courts may disturb such findings only when it appears that the party involved has not been offered a "full and fair hearing," or that the administrative officers have acted contrary to law, or have manifestly abused the discretion committed to them by the statutes.⁴ So, in 1917 the courts denied review by means of habeas corpus where it was sought to review questions affecting exemption, or where ignorance on the part of the registrant was involved.⁵ The writ was, however, granted in some cases, but those cases were few.⁶ The writ of certiorari was granted in one case,⁷ and denied in two others.⁸ United States ex rel. Brown v. Commanding Officer of Seventy-Seventh Division of National Army, etc., D.C., 248 F. 1005, the court, refusing to interfere with the classification based on the physical condition of the registrant, said: "This court, has no jurisdiction (even if the finding of the medical examiners of the local board was incorrect) to release the applicant, as the determination was within their power and jurisdiction." In Ex parte McDonald, D. C., 253 F. 99, 103, the court said: "Where, for example, the regulations indicate to the boards order and priority of call of registrants, or the considerations upon which order and priority shall be determined, namely, dependency or the like, it will be readily conceded that when the boards have determined the facts the courts should not take up the case and rebalance it, because that would lead practically to a judicial selective service ultimately."⁹

I conclude that Congress intended that "regular or duly ordained ministers" of religion shall be exempt...