United States v. Hoepker, 11336

• Decision Date: 14 July 1955
• Docket Number: 11337,11346.,No. 11336,11336
• Citation: United States v. Hoepker, 223 F.2d 921 (7th Cir. 1955)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Armand Fred HOEPKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Walter Gail THOMAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Edward L. SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

223 F.2d 921 (1955)

UNITED STATES of America, Plaintiff-Appellee, v. Armand Fred HOEPKER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Walter Gail THOMAS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Edward L. SMITH, Defendant-Appellant.

Nos. 11336, 11337, 11346.

United States Court of Appeals Seventh Circuit.

June 13, 1955.

Rehearing Denied July 14, 1955.

Hayden C. Covington, Brooklyn, N. Y., Victor F. Schmidt, Columbus, Ohio, for appellants.

C. M. Raemer, U. S. Atty., East St. Louis, Ill., John Morton Jones, Asst. U. S. Atty., Danville, Ill., for appellee.

Before DUFFY, Chief Judge, and LINDLEY and SCHNACKENBERG, Circuit Judges.

LINDLEY, Circuit Judge.

Defendants were adjudged guilty as charged in separate indictments of violating the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq., in that each had refused to perform certain civilian work to which he had been assigned by his local board.

The facts in all three cases are essentially the same. Each defendant, on his application, was classified I-O, (conscientiously opposed to participation in war), by his local board. This classification obligated him to perform, in lieu of military service, civilian work "contributing to the maintenance of the national health, safety, or interest" in accord with the orders of his local board. Section 6(j), 50 U.S.C.A.Appendix, § 456(j). Acting in pursuance of the provisions of that subsection, as implemented by Selective Service Regulations Secs. 1660.1 and 1660.20, 32 C.F.R. §§ 1602 et seq., the board ordered defendants to report for civilian work as follows: Hoepker, to Manteno State Hospital, Manteno, Illinois; Smith to Kankakee State Hospital, Kankakee, Illinois; and Thomas to University of Chicago Clinics, Chicago, Illinois. Smith reported to the hospital but refused to perform the assigned work. Both Hoepker and Thomas refused to report.

The chief contention of each appellant is that the regulations and the boards' orders to perform civilian work at the state hospitals and the University Clinics, issued pursuant thereto, are in conflict with the Act, because the work is private and not "national" or "federal." This argument has been repeatedly urged in efforts to upset orders requiring work in hospitals and other charitable institutions under the control and direction of the several states and their subdivisions, and has been unanimously rejected. United States v. Pomorski, D.C., 125 F. Supp. 68, affirmed 6 Cir., 222 F.2d 106; United States v. Niles, D.C., 122 F.Supp. 382, affirmed 9 Cir., 220 F.2d 278; United States v. Sutter, D.C., 127 F.Supp. 109; United States v. Copeland, D.C., 126 F. Supp. 734; United States v. Hoepker, D.C., 126 F.Supp. 118; United States v. Kinney, D. C., 125 F.Supp. 322; United States v. Smith, D.C., 124 F.Supp. 406; United States v. Thomas, D.C., 124 F. Supp. 411; United States v. Messerman, D.C.M.D.Pa., 128 F.Supp. 759; United States v. Wylie, N.D.Cal., May 17, 1954; United States v. Olvera, S.D.Tex., 132 F. Supp. 565, Sept. 3, 1954; United States v. Diercks, D.C.E.D.Ill., 133 F.Supp. 78, Sept. 29, 1954. We are convinced that these decisions embody the correct rule governing this question with respect to the appeals of Hoepker and Smith. No purpose would be served by repeating what has been so frequently and so ably stated by other courts.

The question before us on this phase of Thomas' appeal is whether civilian work in a private clinic is authorized under Section 6(j). Section 1660.1(a) (2) of the regulations specifies, as appropriate civilian work, employment in nonprofit organizations engaged primarily in charitable activities for the benefit of the general public "or in carrying out a program for the improvement of public health or welfare * * * when such activity or program is not principally for the benefit of the members of such organization * * * or for increasing the membership thereof."

This administrative definition, we think, constitutes a valid exercise of the discretion vested in the President to outline a program of civilian work "contributing to the maintenance of the national health" and welfare. Congress has declared that maintenance of the mental and physical health of our population is a subject of vital federal concern in times of emergency. And Section 6(j), which contains this declaration of policy, defines appropriate employment in terms of the nature of the work to be done, without reference to the control of the institutions to which conscientious objectors may be assigned. The protection of the public health is no less work of national importance whether it is done in an institution controlled by federal or by state authorities or by a private charitable corporation.

The evidence is conclusive that the University of Chicago is a non-sectarian, nonprofit corporation, and that its clinics, to which Thomas was ordered to report for work, minister, on a charitable basis, indiscriminately, to alleviate the physical ills of the general public. In addition to that activity, these clinics, aided by grants of federal funds, carry on extensive research in cancer and other diseases. We hold that this is work of "national" importance which the Act authorized.

United States v. Sparks, D.C.S.D.Ind., February 11, 1955, is inapposite. There the court held that assignment of a conscientious objector to work in a charitable institution which was sponsored and controlled by a competing religious sect was a restraint on the registrant's freedom of religion in violation of the First Amendment. The decision in United States v. Copeland, D.C., 126 F.Supp. 734, striking down an...