United States v. Walden, Criminal Actions No. 16952

• Decision Date: 28 July 1944
• Docket Number: 17089,17081,17160.,17158,17074,Criminal Actions No. 16952,17076,16977
• Citation: 56 F. Supp. 777
• Parties: UNITED STATES v. WALDEN, and seven other cases.
• Court: U.S. District Court — Northern District of Georgia

56 F. Supp. 777

UNITED STATES v. WALDEN, and seven other cases.

Criminal Actions Nos. 16952, 16977, 17074, 17076, 17081, 17089, 17158, 17160.

District Court, N. D. Georgia, Atlanta Division.

July 28, 1944.

M. Neil Andrews, U.S. Atty., and Raymond W. Martin, Asst. U.S. Atty., both of Atlanta, Ga., for plaintiff in each case.

Thomas B. Branch, Jr., of Atlanta, Ga., for defendants Walden, Mainor and Stusak.

Mose S. Hayes, of Atlanta, Ga., for defendant Cox.

Samuel A. Miller, of Atlanta, Ga., for defendant Ingram.

Jas. L. & Will G. Moore, of Atlanta, Ga., for defendant Galfas.

Mose S. Hayes, of Atlanta, Ga., for defendant Harris.

Mose S. Hayes, of Atlanta, Ga., for defendant Ledford.

UNDERWOOD, District Judge.

In these cases, the defendants all claimed to be regular ministers of religion and exempt from training and service under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 305(d).

It is clear that if they were such ministers they could not legally be required to serve or report for service in the armed forces, or be assigned to work of national importance under civilian direction, since the Act expressly exempts ministers in the following language, "Regular or duly ordained ministers of religion, * * * shall be exempt from training and service (but not from registration) under this Act."

The serious question presented is, who is to finally determine the fact of ministerial status and what is the machinery provided for the legal determination of that fact?

Under the decision of the Supreme Court in the case of Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 349, it is settled that, under the Act, 50 U.S.C.A.Appendix § 310(a)(2), the classification of a registrant by the local and appeal boards is final and can not be reviewed in the courts until after the completion of the selective service process, if such classification has been made in substantial accordance with the Act and valid regulations authorized by the Act.

The Falbo case, however, only went to the question of review of the classification of the registrant and left open and unconsidered the question of the validity of an order made in violation of the Constitution or the Act or the regulations legally promulgated under the Act. The Court said; "The narrow question therefore presented by this case is whether Congress has authorized judicial review of the propriety of a board's classification in a criminal prosecution for wilful violation of an order directing a registrant to report for the last step in the selective process."

The Falbo case nowhere holds that it is a crime to refuse to obey an order of a draft board which was made in violation of the Constitution or the Act or valid regulations under the Act. The contrary was held by the Fifth Circuit Court of Appeals in so far as a constitutional right is concerned. Heflin v. Sanford, 5 Cir., 142 F.2d 798, 799. The Court said, "We do not think Falbo's case settles this one. Appellant is not contesting the classification given him by the local board, or seeking any review of its action. He simply says that he was ordered to do something prohibited by the Constitution and his refusal cannot be made a crime. If his contention is correct, his imprisonment is unlawful because the law under which he was indicted would be unconstitutional thus applied. The constitutional validity of the conviction can be questioned by habeas corpus." The same principle and reasoning demand a like conclusion when substantial violations of the Act or regulations are involved.

In the Falbo case the Supreme Court said, "Careful provision was made for fair administration of the Act's policies within the framework of the selective service process." 320 U.S. at page 554, 64 S.Ct. at page 349.

If careful provision was made to safeguard the Constitutional and other rights of citizens because of the great powers delegated to the draft boards, and this was done in view of the denial to them of assistance of counsel before the boards (Regulation 625.2) and their exclusion from the courts to test their civil rights, it would seem that Congress intended that the provisions of the Act and procedural regulations should be carefully followed and that substantial and harmful variance therefrom would invalidate orders of a board and refusal to obey same would not be a crime.

So that in these cases, while this Court has no jurisdiction to review the correctness of the classification of the defendants or decisions within the discretion of the board, it has jurisdiction and may examine the...