United States v. Sutter, 23840

• Decision Date: 16 December 1954
• Docket Number: 23858.,No. 23840,23859,23840
• Parties: UNITED STATES of America, Plaintiff, v. Alfred Robert SUTTER, Defendant. UNITED STATES of America, Plaintiff, v. Paul HUHA, Defendant. UNITED STATES of America, Plaintiff, v. James Antone DAVINER, Defendant.
• Court: U.S. District Court — Southern District of California

127 F. Supp. 109

UNITED STATES of America, Plaintiff, v. Alfred Robert SUTTER, Defendant.

UNITED STATES of America, Plaintiff, v. Paul HUHA, Defendant.

UNITED STATES of America, Plaintiff, v. James Antone DAVINER, Defendant.

Nos. 23840, 23859, 23858.

United States District Court, S. D. California, Central Division.

December 16, 1954.

COPYRIGHT MATERIAL OMITTED

Laughlin E. Waters, U. S. Atty., Louis Lee Abbott, Asst. U. S. Atty., Hiram W. Kwan, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

Harold Shire, Beverly Hills, Cal., for defendants.

JAMES M. CARTER, District Judge.

These three cases under the Universal Military Training and Service Act¹ are the first to arise in this district involving conscientious objectors who have been ordered to report for civilian work in an institution of the state or a political subdivision thereof.

The three indictments are in substantially the same form, alleging that the defendant, a male person, within the class made subject to selective service under the above act, registered and became a registrant of a local board which was duly created and acting pursuant to the Act and regulations thereunder; that the defendant was classified I-O² and notified of the classification; that on a certain date³ the defendant was "ordered to report for civilian work contributing to the maintenance of the national health, safety and interest as set forth in `Order to Report for Civilian Work * * *'" which form was attached as Exhibit One to the indictment and incorporated by reference; that on a certain date the defendants did knowingly and wilfully fail and neglect (1) to proceed to the place of employment set forth in the incorporated "Order to Report", (in each instance the Los Angeles County Department of Charities, within the central division of this district) and (2) to report for said employment, and (3) to remain in said employment for twenty-four consecutive months⁴ or for any period whatsoever; that by such conduct the defendant did knowingly and wilfully fail and neglect to perform a duty required of him by the Act and regulations.

At the trial, with jury waived, the draft board file of each defendant was received in evidence by stipulation and the government rested.

As to Sutter and Daviner, a stipulation was entered into between counsel, that each defendant if called as a witness, would testify that on November 4, 1954, he inspected the Bulletin board at the local board office and that there were not posted on the Bulletin board or at the local board office, any names or addresses of "advisors to registrants within the local board area."⁵

As to Sutter, it was stipulated between counsel that he reported to the local board on September 28, 1953 as ordered and was told to proceed to the Los Angeles County Department of Charities, but that on that day he wrote out and delivered to the board the statement appearing in the board file: "Lo. Board 22. I will not take the jobs that are given me at any time or place."

As to Huha, it was stipulated that he reported to the local board as ordered on October 26, 1953, and was given a slip or told to report to the Los Angeles County Department of Charities within forty-eight hours. The file contains such a slip with the notation, "Mr. Harnish, Chairman of L.B. 68 handed or attempted to hand this address to registrant P. Huha but registrant through (sic) it back on desk and said he wouldn't report since the law said he didn't have to."

It was stipulated Daviner reported to the local board as ordered on October 22, 1953. Daviner would not stipulate further, but voluntarily took the witness stand for questions. He admitted executing on October 22, 1953, the document, reading:

"I will not report to the Los Angeles County Dept. of Charities on the 26th day of October 1953 due to reasons further explained in typewritten statement submitted by myself. Respectfully yours

James Anton Daviner Oct. 22, 1953.

Also understanding possible penalty involved."

The file also contains a letter to the Department of Charities from the local board advising that Daviner had been ordered to report for work on October 26, 1953. The inference is clear that on October 22, 1953, Daviner was told to report to the Los Angeles County Department of Charities on October 26, 1953.

The defendants then filed in each case a written motion for judgment of acquittal, the motion was submitted and defendants rested. The three motions are identical and raise interesting and important questions as to the Act and the regulations, their constitutionality as applied, the sufficiency of the indictments and the correctness of the classification given.

Each defendant reported to the local board as ordered and no violation is charged in that respect.

I. The Sufficiency of the Indictment

Under § 10(b) of the Act, 50 U.S.C.A.Appendix, § 460(b),⁶ the President is "authorized — (1) to prescribe the necessary rules and regulations to carry out the provisions of this title" and in § 10(c), 50 U.S.C.A.Appendix, § 460(c), "The President is authorized to delegate any authority vested in him under this title Sections 451-454 and 455-471, 50 U.S.C.A.Appendix, and to provide for the subdelegation of any such authority." The present Act follows the same pattern as the earlier Act⁷ and as to the earlier Act the delegation to the President, and by him to the Director of Selective Service, to exact unarmed service from conscientious objectors, was held a proper constitutional delegation of legislative power. Dingman v. United States, 9 Cir., 1946, 156 F.2d 148, certiorari denied 329 U.S. 730, 67 S.Ct. 86, 91 L.Ed. 630, rehearing denied 329 U.S. 831, 67 S.Ct. 479, 91 L.Ed. 705.

Section 6(j) of the Act, 50 U.S.C.A. Appendix, § 456(j), provides in part, that the conscientious objector to non-combatant service shall "be ordered by his local board * * * to perform" (for 24 months) "such civilian work contributing to the maintenance of the national health, safety, or interest as the local board may deem appropriate and any such person who knowingly fails or neglects to obey any such order from his local board shall be deemed, for the purposes of section 12 of this title § 462 of 50 U.S.C.A.App. to have knowingly failed or neglected to perform a duty required of him under this title."

Section 12 of the Act, 50 U.S.C.A. Appendix, § 462, provides in part, that any person "who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title, or rules, regulations, or directions made pursuant to this title, * * * shall, upon conviction * * * be punished * * *."

Part 1660 of the Regulations provides generally for civilian work in lieu of induction. § 1660.1 provides in part,

"Definition of Appropriate Civilian Work. — (a) The types of employment which may be considered under the provisions of § 6(j) of Title 1 of the Universal Military Training and Service Act, as amended, to be civilian work contributing to the maintenance of the national health, safety, or interest, and appropriate to be performed in lieu of induction into the armed forces by registrants who have been classified in Class I-O shall be limited to the following:

"(1) Employment by the United States Government or by a State, Territory, or possession of the United States, or by a political subdivision thereof, or by the District of Columbia.

"(2) * * *."

§ 1660.20(d) provides in part,

"* * * the local board, with the approval of the Director of Selective Service, shall order the registrant to report for civilian work contributing to the maintenance of the national health, safety or interest as defined in § 1660.1 which it deems appropriate * * *".

§ 1660.30 provides in part,

"Any registrant who knowingly fails or neglects to obey an order from his local board to perform civilian work contributing to the maintenance of the national health, safety or interest, in lieu of induction shall be deemed to have knowingly failed or neglected to perform a duty required of him * * *" under the Act.

Here the indictments did not charge a failure to report to the local board but specified in detail the registrant's failure to proceed to the work, to report and to remain. In its concluding sentence each indictment states "by the aforesaid conduct defendant did knowingly and wilfully fail and neglect to perform a duty required by him under the Act and the regulations * * *". The indictment also set forth a copy of the "Order to Report for Civilian Work," which specified "work as an institutional helper located at the Los Angeles County Department of Charities, Los Angeles, California."⁸

The "Order to Report for Civilian Work" incorporated by reference in the indictment, recited that the registrant had been found acceptable for civilian work contributing to the national health, safety or interest, and had been assigned to work, at the specified institution. There followed these orders. "You are ordered to report to the local board" fixing a date, "when you will be given instructions to proceed to the place of employment." "You are ordered to report for employment" pursuant to the board's instructions. "To remain in employment" for 24 months, etc. The order concluded, "Failure to report * * * or to proceed to the place of employment * * * or to remain in this employment the specified time * * * will constitute a violation" of the Act. Emphasis added.

It is apparent the government framed its indictments on the specific language of the Order and particularly the last paragraph thereof. But it was not necessary to use the exact language of § 1660.30 of the regulations, with its precise statement that failure "to perform civilian work * * *" constitutes neglect or failure to perform a duty. When a registrant followed the conduct described in the indictment, he in fact "failed or neglected to obey an order from his local board to perform civilian work contributing" etc. §...