United States v. Kauten, 134.

Decision Date08 February 1943
Docket NumberNo. 134.,134.
Citation133 F.2d 703
CourtU.S. Court of Appeals — Second Circuit


Julien Cornell, of New York City, for appellant Mathias Kauten.

Mathias F. Correa, U. S. Atty., of New York City (K. Bertram Friedman and Stuart Z. Krinsly, Asst. U. S. Attys, both of New York City, of counsel), for the United States.

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

AUGUSTUS N. HAND, Circuit Judge.

The defendant, Mathias Kauten, was convicted for neglecting to appear for induction into the United States Army pursuant to the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq. He claims that the conviction was erroneous because he was exempt as a conscientious objector under Section 5 (g) of the Selective Training and Service Act.1

The following is an outline of the facts: On March 10, 1941, the defendant was classified by his Local Draft Board as 1A. On April 3, 1941, he appealed from the classification on the ground that "by reason of religious training and belief" he was "conscientiously opposed to participation in war in any form." On May 19, 1942, the Board of Appeal affirmed the classification and on June 6, 1942, an order to report for induction on the following June 19th was mailed to him, which he received and knowingly neglected to obey.

Thereafter he was indicted and convicted under Section 11 of the Selective Training and Service Act, for knowingly failing to perform a duty required by the Act. At the trial, which on the motion of his attorney and upon his own consent in writing, was had before the court without a jury, he offered to prove that he had made a claim of exemption before his Local Board on the ground that he was a conscientious objector. This claim had been rejected both by the Local Board and by the Appeal Board because both boards concluded that his opposition was not based upon "religious training and belief." In support of the offer of proof he sought to introduce at the trial the findings of Honorable Lamar Hardy who had been appointed Hearing Officer of claims of conscientious objectors by the Department of Justice. This offer was made on the ground that the Appeal Board in reaching its conclusion had adopted the findings and conclusions of Lamar Hardy. The trial judge rejected the offer of evidence for the reason that the order to report for induction could not be attacked collaterally. In so ruling the court followed the decisions of the Third Circuit in United States v. Grieme, 128 F.2d 811, and of the Fifth Circuit in Fletcher v. United States, 129 F.2d 262. A still more recent decision to the same effect was rendered by the Court of Appeals of the Third Circuit in United States v. Bowles, 131 F.2d 818. By each decision it was held that the failure of a Draft Board to afford a fair hearing was not a defense to a prosecution for failure to report for induction and that the only procedure by which an inductee might procure judicial review of such an order or of an improper classification was by applying for a writ of habeas corpus after he had submitted to induction.

Section 10(a) (2) 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." The foregoing clause shows that Congress intended so far as possible to prevent delay and even the disruption of the administration of the Selective Training and Service Act by court interference with the various steps that the administrative boards are required to take. The wisdom of deferring judicial action until completion of the administrative proceedings can hardly be doubted. Registrants ordered to report for induction are frequently rejected because found under the strict medical examination of the Army "to be physically, mentally, or morally deficient or defective." It is common knowledge that pending this examination by the military authorities actual induction is a contingent matter. There can be no subjection "to combatant training and service" until after the Army officials have conducted their physical examination. The effect of this well-established practice is to render the prior orders of the Local and Appeal Boards but steps leading up to a final acceptance or rejection by the Army. Only when the Army makes its choice are all the administrative steps taken and is the administrative proceeding concluded.

Even though the Local Draft and Appeal Boards may have committed an error of law in classifying a conscientious objector as a man available for combat service his rights under Section 5(g) are not abridged in any practical sense until he is subjected to military "training and service" after formal induction into the Army. Prior to that time he has suffered only the inconvenience incident to his status as a party to an administrative proceeding — the general sort of inconvenience to which parties customarily submit in proceedings before the Interstate Commerce Commission, National Labor Relations Board, and many other federal and state tribunals including courts of law. The justification for the burden upon the individual of subjecting him to such proceedings instead of stopping them at the outset by injunctive or other relief in the courts lies in the absence of an alternative consistent with the orderly conduct of the government's business, and in this particular case, in the want of any suitable alternative method of selecting the personnel of a large Army. On such grounds the Supreme Court in Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638, denied relief to an employer seeking to escape the burden of a National Labor Relations Board proceeding because its business was not in interstate or foreign commerce and because the holding of the hearings would cause damage due to the incidental expense, inconvenience and impairment of its goodwill and of harmonious relations with its employees. The decision of the same court on January 11, 1943, in Endicott Johnson Corp. v. Perkins, 63 S.Ct. 339, 87 L.Ed. ___, is to a like effect. See also Federal Power Comm'n v. Metropolitan Edison Co., 304 U.S. 375, 384, 58 S.Ct. 963, 82 L.Ed. 1408; United States v. Illinois Cent. R. Co., 244 U.S. 82, 37 S.Ct. 584, 61 L.Ed. 1007. Indeed it has become the general rule that where Congress has delegated to an administrative authority a certain field of governmental activity and made its acts final, the courts will not interfere until the administrative proceedings have been concluded and any administrative remedy that may exist has been exhausted. Under this rule there would seem to have been no good reason for interrupting proceedings leading to induction until some substantial physical restraint occurred. Then the writ of habeas corpus is sufficient to remedy any irregularities of Draft Boards and to satisfy all reasonable scruples on the part of inductees. Moreover, it is the practice of the Army to grant a furlough of seven days after a registrant is formally inducted before he is subjected to military training. This gives him time to apply for a writ of habeas corpus without disturbing the selective service machinery, if he thinks that his rights as a conscientious objector have been infringed.

It results from the foregoing that the registrant was bound to obey the order to report for induction even if there had been error of law in his classification. The Administrative Board had jurisdiction of his case and its order could not be wilfully disregarded.

It seems proper, however, to say that we find no error of law on the part of the Appeal Board. The only error suggested is the adoption by the latter of the Report of the Hearing Commissioner whose conclusions are appended in the margin.2 No question is raised about the facts which he and the Appeal Board found, but only whether the statute...

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