United States v. Pomorski, 5810.

• Decision Date: 09 September 1954
• Docket Number: No. 5810.,5810.
• Citation: United States v. Pomorski, 125 F.Supp. 68 (W.D. Mich. 1954)
• Parties: UNITED STATES of America, Plaintiff, v. Thomas Walter POMORSKI, Defendant.
• Court: U.S. District Court — Western District of Michigan

125 F. Supp. 68

UNITED STATES of America, Plaintiff, v. Thomas Walter POMORSKI, Defendant.

No. 5810.

United States District Court W. D. Michigan, S. D.

September 9, 1954.

Wendell A. Miles, U. S. Atty., Grand Rapids, Mich., for plaintiff.

Irving Smith, Grand Rapids, Mich., for defendant.

KENT, District Judge.

This is a criminal case arising out of an indictment returned by the grand jury for the Western District of Michigan on the 2d day of June, 1954. The indictment charged that the defendant, Thomas Walter Pomorski, had failed and refused to report for civilian work contributing to the maintenance of the "national health, safety and interest," as required by the Selective Service Law, Rules and Regulations, and in violation of Section 456(j) and Section 462(a), Title 50 of the Appendix to the United States Code Annotated. The defendant, in accordance with the provisions of Rule 23, the Federal Rules of Criminal Procedure, 18 U.S.C.A., waived trial by jury in writing, and the government and the court have consented to such waiver.

At the conclusion of all the proofs, the defendant made a motion to dismiss the action on the following grounds: First, that as evidenced by certain of the items in the Government's Exhibit A, the draft board was unduly influenced to classify the defendant-registrant 1-O, formerly 4-E, as a conscientious objector, rather than 4-D, as a minister, because of the fact that the defendant had not graduated from a theological school; and, according to a letter from the chairman of the draft board, because the registrant had not been ordained.

Counsel for the defendant claims in his motion that because of confusion in the minds of the members of the draft board as to the requirements to classify a registrant as a minister within the meaning of the Selective Service Laws, Rules and Regulations, the defendant had not been given a full, true and complete hearing, and cites to the court certain cases: Niznik v. U. S., 184 F.2d 972, and the same case in 173 F.2d 328. Counsel also cites Smith v. U. S., 4 Cir., 157 F.2d 176 and U. S. v. Zieber, 3 Cir., 161 F.2d 90. The Niznik case is a decision of the Sixth Circuit.

Counsel further claims that there were conversations between the registrant and members of the draft board which were not reduced to memorandum form and made a part of the defendant's file in writing, as required by Section 1624.2 of the regulations, and cites the same cases in support of that position.

The court is satisfied that its decision relative to the merits of the charges contained in the indictment against the defendant will satisfactorily represent its opinion as to the merits of the motion made by the defendant, since the questions raised by the motion must necessarily be determined in deciding the guilt or innocence of the defendant.

The Government's Exhibit A, consisting of this defendant's Selective Service file, pages 1 through 64, shows that the defendant returned his Selective Service System classification questionnaire on June 20, 1950. In that questionnaire, under Series 8, paragraph 5, he advised the Selective Service Board that he was employed as a radio repairman; that he worked an average of thirty hours per week. Subsequently, a special form for conscientious objectors was mailed to the respondent, which was returned to Local Board No. 63, Muskegon County, on October 11, 1950. At that time he reported to the board, under Series 3: "Employment: Janitor, Colonial, White Street, full time." It should be noted that in both the original questionnaire and in the conscientious objector questionnaire, defendant claimed that he was a minister. On October 12, 1950, he was classified 4-E, as a conscientious objector.

On June 26, 1952, it appears from the file that the case was re-opened, and the defendant was classified 1-O, which means the same as the previous 4-E, a conscientious objector. There were hearings subsequently.

It appears to the satisfaction of the court that the defendant was courteously received, that he was extended the right to hearing when requested, and appeal was taken. The classification was affirmed by the Appeal Board.

Neither the defendant nor his attorney make any claim that the defendant-registrant produced any information for the benefit of the draft board relative to his activities as a minister which would have or should have required Local Board No. 63, Muskegon County, or the Appeal Board to give the defendant a 4-D classification as a minister.

The court is satisfied that the language used by the chairman of the draft board at the hearing on July 31, 1952, relative to the necessity for attendance at a theological school, by one who claims exemption as a minister, is not controlling in this case, and did not control the classification awarded to this defendant by Local Board No. 63.

The testimony of the various witnesses, including the defendant, shows that at the time the defendant was given the 1-O classification, there was before the board, in addition to the facts disclosed by Exhibit A, a Selective Service System classification questionnaire, previously referred to, and a special form for conscientious objector, which was also previously referred to. The board was also informed and knew, as its records show, that the defendant was employed full time in secular employment.

The same reasoning applies to the other questions raised in defendant's motion to dismiss the government's charges against this defendant. Basically, the defendant claims in his motion, in his trial brief, in his argument, and in the evidence produced, that the defendant was a "minister" within the meaning of the Selective Service Law, Rules and Regulations.

Exemption from military service is a matter of legislative grace and not a matter of right. No one has an inherent or constitutional right of exemption. The registrant must fit himself within the exemptions provided by Congress. This has been ruled on in the case of U. S. v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889; U. S. v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302; and U. S. v. Brooks, 2 Cir., 147 F.2d 134.

The applicable statute, being Section 466, subdivision (g) paragraphs (1), (2) and (3), sets forth the definitions applicable to the situation before the court.

466(g)(1) reads:

"The term `duly ordained minister of religion' means a person who has been ordained, in accordance with the ceremonial, ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization."

Section 466(g)(2) of Title 50 of the Appendix to the United States Code Annotated, provides:

"The term `regular minister of religion' means one who as his customary vocation preaches and teaches the principles of religion of a church, a religious sect, or 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 regular minister."

The court calls attention to the fact that the two paragraphs read make reference to "customary vocation" and to "regular and customary vocation".

Section 466(g)(3) of Title 50 of the Appendix to the United States Code Annotated, provides as follows:

"The term `regular or duly ordained minister of religion' does not include a person who irregularly or incidentally preaches and teaches the principles of religion of a church, religious sect, or organization and does not include any person who may have been duly ordained a minister in accordance with the ceremonial, rite, or discipline of a church, religious sect or organization, but who does not regularly, as a vocation, teach and preach the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his church, sect, or organization."

This court is satisfied that under the law, the Muskegon County Draft Board No. 63 properly classified this defendant 1-O, as a conscientious objector.

This court is further satisfied that such classification was not made arbitrarily, but was based upon reason and common sense, and upon the information given to the board by the registrant, as evidenced by Exhibit A, the registrant having stated to the local board that he was regularly employed, that he had a full-time job. The...