Van Bibber v. United States, 13029.

• Decision Date: 17 October 1945
• Docket Number: No. 13029.,13029.
• Citation: 151 F.2d 444
• Parties: VAN BIBBER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

151 F.2d 444 (1945)

VAN BIBBER v. UNITED STATES.

No. 13029.

Circuit Court of Appeals, Eighth Circuit.

October 17, 1945.

Thomas Houston Van Bibber, pro se (J. W. Barron, of Little Rock, Ark., appointed by the Court, with him on the brief).

Sam Rorex, U. S. Atty., and W. H. Gregory and Warren E. Wood, Asst. U. S. Attys., all of Little Rock, Ark., for appellee.

Before WOODROUGH, JOHNSEN and RIDDICK, Circuit Judges.

JOHNSEN, Circuit Judge.

Appellant was convicted by a jury and sentenced to two years imprisonment, under the Selective Training and Service Act of 1940, 54 Stat. 885, 50 U.S.C.A.Appendix, § 301 et seq., for knowingly failing to obey an order of his selective service system local board to report on May 30, 1944, for induction into military service.

The questions involved in his appeal have been duly answered by the Supreme Court's decisions in Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (rehearing denied 321 U.S. 802, 64 S.Ct. 517, 88 L.Ed. 1089, and second petition for rehearing denied 322 U.S. 770, 64 S.Ct. 1147, 88 L.Ed. 1595), and Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917, and by the decision of this Court in Bronemann v. United States, 8 Cir. 138 F.2d 333.

These cases hold, without qualification, that the fact that a registrant under the Selective Training and Service Act has erroneously or arbitrarily been denied a particular classification by his local board, or been reclassified from one status to another, is not a matter which is open to proof or consideration in a prosecution for knowingly failing to obey an order of the board to report for induction. Under the purposes and processes of the Act, a registrant cannot have the propriety of his classification or the basis of the board's action reviewed in such a prosecution.

Where a registrant disagrees with his board's classification and desires to have it changed, he must resort to the administrative remedies afforded him by the Act and the Selective Service Regulations at that stage of the selective process. See 50 U.S.C.A.Appendix, § 310(a) (2). "The registrant may," as the Falbo case points out, 320 U.S. at page 552, 64 S.Ct. at page 348, 88 L.Ed. 305, "contest his classification by a personal appearance before the local board, and if that board refuses to alter the classification, by carrying his case to a board of appeal, and thence, in certain circumstances, to the President." If he does not resort to these administrative remedies, or if his efforts to change his classification fail, he has no legal right to refuse to obey an order of his board to report. Only when he has exhausted his administrative remedies, has been ordered by his board to report for induction, has obeyed that order, and has been finally accepted for service, are the doors of the courts open to him to test the legality of his classification. In the language of the Billings case, 321 U.S. at page 558, 64 S.Ct. at page 746, 88 L.Ed. 917, "Unless he follows that procedure he may not challenge the legality of his classification in the courts." Under these conditions only, and only when in addition his classification actually rests upon an arbitrariness which would make his final induction a violation of the standards of due process, is he entitled to resort to the courts for protection, through invocation of the fundamental writ of habeas corpus. Bronemann v. United States, 8 Cir., 138 F.2d 333, 337.

In the present case, appellant admittedly refused to report to his board for final acceptance or rejection at an induction center. He had taken no appeal, such as the Act and the Selective Service Regulations...