The opinion
RIVES, Circuit Judge
(dissenting).
With deep regret, I am constrained respectfully to dissent. Reading, rereading and carefully studying the record as a whole, I am impressed with the fairness, consideration, and discernment of the members of the Local Board, and agree fully with the finding of the district court that,
“The Board was not hostile to him, had no ill will toward him, but gave him every opportunity he requested to present any further facts, and its decision was not arbitrary or capricious, but was based upon facts before it.”
The only evidence before the Board as to the time appellant actually devoted to the ministry was the recital in his certificate of ordination that under his obligations to Jehovah’s Witnesses he was required to put in a total number of 1200 hours per year, and appellant’s statement that he did. As one of the Board members testified:
“Q. Outside of this certificate which has been introduced here from the Watch Tower Bible Society, did this registrant ever introduce any evidence whatsoever before this Local Board to show that he was a minister, practicing as such? A. We asked him about that and he said they did not have any regular church like other denominations and other religions and he would not have a letter from some church saying he was a minister.”
The Board was accustomed to accepting letters from other churches, and in fairness to appellant, it proceeded on the assumption that he actually devoted twelve hundred hours a year to the ministry. The courts, I think, should follow the Board in that assumption.
It seems clear to me, however, that there was ample basis in fact from which the Board could conclude that farming, rather than the ministry, was appellant’s vocation. Indeed, before the Board the appellant himself so stated:
“Q. Did you go into his vocation during these meetings? I mean as to what his vocation was ? A. Yes, sir.
“Q. Did he state what vocation he was in? A. He stated he was farming as his vocation.
“Q. Did he say where he was farming? A. The place he rented was 40 acres, I believe.”
His statement before the Board as to his ministerial work, according to one of the Board members, was as follows:
“Q. What evidence, if any, did this Defendant present to your Board to show that he was a full time minister? A. I don’t know if that is the meeting or not, but at one time he presented this certificate —a pioneer preacher, or some kind of pioneer.
“Q. Did he say what amount of work he did? A. All he said was it would take about 1200 hours a year; that was what was required to get that certificate.
“Q. Did he say he put in 1200 hours a year as such? A. He said he did.
“Q. Did he tell you what period of the year he was required to put in 1200 hours ? A. As I remember, he said he could do it all at once, maybe after the crop was laid by, or whatever time was convenient to him.”
The same member testified: “he stated that he farmed and that he did ministerial work, but it seemed that his farm work took more of his time than his ministerial work.”
In the light of that evidence, the Board summarized its findings as follows:
“This registrant’s classification was re-opened at this Board meeting, since the registrant had submitted a Certificate for Pioneer Minister *106 from the Watchtower Bible and Tract Society in the meantime.
“This registrant stated that he farms 40 acres of land and does not have a regular church in which he preaches, and that he gets his livelihood from the farm and not from his ministerial work. He also made the statement that he is not asking for classification as a Conscientious Objector, but as a minister (IY-D). He states that he is required to put in 1200 hours per year in missionary work for his church (Jehovah’s Witnesses), in order to be considered a Pioneer Minister.
“The members of the Board did not feel that they could give him a IV-D classification. They did not feel that he was entitled to it. He was given another chance to change his request to a request for a Conscientious Objector’s classification, but he refused, stating that he was asking for a IV-D classification.
“The Board based their refusal on SS Reg. 1622.43, Section 3 of Par. (b). They feel that he does not regularly, as his vocation practice his duties as a minister since he states that he makes his living from his farm. Farming takes up quite a big portion of one’s time if one makes a living from it.”
The findings of the district court are to like effect:
“The evidence showed, as a matter of fact, that farming was his vocation and his livelihood, and that he was not required to devote any definite number of hours per week or month to his ministerial activities, and that it was necessary for him in order to be ordained as a minister to devote twelve hundred hours per year, but that this could be done after the crops had been attended to.”
It is not the function of the courts to say what ministers should or should not be exempt. Congress has limited the exemption to “regular or duly ordained ministers of religion, as defined in this title,” 50 U.S.C.A. Appendix, 456(g), and has carefully and even repetitively, provided in its definition that the ministry must be “his regular and customary vocation” and has specifically excluded from the exemption a person “who irregularly or incidentally preaches and teaches * * * ” or “who does not regularly, as a vocation, teach and preach * * 50 U.S.C.A. Appendix, 466 (g).
The narrow scope of review, and the very limited function of the courts, has been repeatedly stated by^the Supreme Court, the last time, I believe, in Witmer v. United States, 348 U.S. 375, 380, 381 , 75 S.Ct. 392, 395 , 99 L.Ed. 428 :
“It is well to remember that it is not for the courts to sit as super draft boards, substituting their judgments on the weight of the evidence for those of the designated agencies. Nor should they look for substantial evidence to support such determinations. Dickinson v. United States, 346 U.S. 389, 396, 1953 , [ 74 S.Ct. 152, 157 , 98 L.Ed. 132 ]. The classification can be overturned only if it has ‘no basis in fact.’ Estep v. United States, 327 U.S. 114, 122, 1946 , [ 66 S.Ct. 423, 427 , 90 L.Ed. 567 ].”
In the present case, it seems to me that there was no basis in fact upon which the Board could find that the appellant preached and taught “regularly” when the evidence was undisputed that he could fit in the required 1200 hours per year after his crops were laid by or at any other time. Further, I think that the Board had ample basis in fact to find that the ministry was not appellant’s vocation. Indeed, in my opinion, no previous case has gone so far as this one.
“ * * * he (Dickinson) dedicated approximately 100 hours each month to actual pioneer missionary work — delivering public sermons, door-to-door preaching, conducting home Bible studies. In the remaining 50 hours devoted to religious *107 activities each month, Dickinson studied, planned sermons and discourses, and wrote letters connected with his work. A substantial portion of this time was spent conducting three to four meetings each week of the ‘Company’ or congregation at a public hall in Coalinga. Dickinson arranged for and presided over these meetings, usually delivering discourses at them. He also instructed prospective ministers in the proper delivery of sermons at the ‘Company’s’ Theocratic Ministry School. Dickinson received no salary for his missionary or company servant work. He lived on $35 a month earned by a weekly average of five hours of radio repair work. This modest income, a low $15-17.50, a month rental for an apartment, self-performance of household tasks, and invitations to various private homes enabled Dickinson to subsist.” Dickinson v. United States, 346 U.S. 339, 393 , 74 S.Ct. 152, 156 .
Rowell was a “regular, full-time minister” and had no “other vocation or part-time job.” Rowell v. United States, 5 Cir., 223 F.2d 863, 865 .
Ransom spent “at least 100 hours per month preaching,” “he had certain administrative duties within his group of Witnesses and helped preside at their religious meetings in addition to his 100 hours per month spent preaching from door to door.” “His only secular activity was about one day per week spent working on his parent’s farm for his board and room.” United States v. Ransom, 7 Cir., 223 F.2d 15, 18 .
The district judge thought that the authority applicable to the facts of this case is that of United States v. Diercks, 7 Cir., 223 F.2d 12, 14 , certiorari denied 350 U.S. 841 , 76 S.Ct. 81 , 100 L.Ed. 750 .
“[Diercks’] request showed that he had been appointed a ‘Pioneer’ minister on October 1,1952, and that he was ‘ * * * required to serve in the field on the basis of a quota of 100 hours a month * * *.' He made no showing that he was, in fact, putting in 100 hours per month, although from the beginning he claimed to be a minister in spite of putting in 40 hours a week as a farmer and later, while putting in a full work-week in the insurance business.” 223 F.2d at page 14.
In Diercks’ case, the judgment of conviction was affirmed.
United States v. Lebherz, D.C.N.J., 129 F.Supp. 444, 452, 453 , involved the claims of four defendants to exemption. The district court said:
“The facts as they were found, reveal, at the very best, preaching and teaching or Bible reading, no more than half-time in relation to secular work. It certainly does not appear to be each defendant’s vocation in the sense in which that word is used in the statute and in court decisions. True, the statutory definition of a ‘regular or duly ordained minister’ does not preclude all secular employment. However, there is a definite, factual basis afforded each draft board in each case before us to supply a sufficient basis for the denial of a ministerial classification. The Dickinson case merely held that one who supports himself by five hours (emphasis supplied) of secular work each week as against 150 hours monthly devoted to religious activity, places himself prima facie within the statutory exemption, and a dismissal of such a registrant’s claim to exemption without affirmative evidence to support such a finding, is contrary to the intent and purpose of the Act.
“There is no dispute here as to the evidence presented by each defendant to substantiate his claim to being a minister of his particular faith. Each defendant has failed, however, to establish such a course of conduct as to fulfill the requirements needed to establish a right to exemption as a minister. Moreover, it must be remembered that only when there is a classification which is arbitrary and capricious can the *108 courts make determinations. The courts do not weigh the evidence and then decide; they may only ■determine whether there is a basis in fact for the draft board’s classification. The local board bears the initial responsibility for resolving the conflict. The courts will insist only that there be some proof that is incompatible with the registrant’s proof of his status as a minister entitled to exemption.
“In each of these cases there is a warrantable basis for the decision of the board, which makes that decision neither arbitrary nor capricious.”
In United States v. Kahl, D.C.E.D. Mich., 141 F.Supp. 161,165 , Kahl worked in his father’s store from 20 to 30 hours per week, totalling 90 to 135 hours each month, and devoted about 100 hours “each month” to the Jehovah Witnesses. The district court said:
“Finally, we believe that the court in Dickinson v. United States, supra, clearly holds that registrant shall be a duly ordained minister working at his regular duties more than half time and that his secular work must be somewhat less than his ministerial duties. He must be a full time minister who perhaps, to subsist and because of his zeal and enthusiasm and that of his followers, calls for a sacrifice on his part in order to live. But that he may not be regularly employed longer at secular work or part-time work than the time devoted by him to his ministry.”
In no previous case, I believe, has the board’s decision been held beyond its jurisdiction when the evidence before the board failed to show that the applicant for exemption worked “regularly” as a minister, or affirmatively showed that he devoted the major part of his time to some other vocation.
Members of local boards, as patriotic citizens, give freely of their time toward helping our Country to be prepared to defend itself and all of us against aggression. When they act with the patience, kindness, and consideration shown by this Board, they deserve wholehearted support of all of their fellow citizens. When their acts are within the framework of the law, within their jurisdiction, and have a basis in fact, the courts have no power to set them aside. I would affirm the judgment of the district court, and therefore respectfully dissent.