# United States Ex Rel. Phillips v. Downer > Court of Appeals for the Second Circuit · May 7, 1943 · 135 F.2d 521 URL: https://www.frixlaw.com/law-library/cases/9639740 ## Case - **Full name:** UNITED STATES Ex Rel. PHILLIPS v. DOWNER, Colonel - **Court:** Court of Appeals for the Second Circuit - **Decided:** May 7, 1943 - **Citations:** 135 F.2d 521; 1943 U.S. App. LEXIS 3311 - **Precedential status:** Published - **Opinion:** Dissent by Chase - **Judges:** Hand, Chase, Clark - **Cited by:** 31 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9639740 ## Opinion text CHASE, Circuit Judge (dissenting). Because I am unable to agree that the scope of our review is as extensive as the majority opinion has made it, perhaps it may be worthwhile to state why I cannot do so. It must be remembered that the relator owes generally the same duty to his government under the Selective Service Law that is owed by every other able bodied American of draft age. The sole question is whether he is entitled to stand aloof, freed from that otherwise unshirkable obligation because of his belief. On that score the issue is not alone of his sincerity which I do not question in so far as he is conscientiously opposed to participation in war in any form. It is whether the duly authorized classification agency conscientiously considered the evidence; found all the material facts proved; and lawfully classified him accordingly. Congress had the duty as the legislature of a civilized nation to provide for separate classification for what are sometimes called conscientious objectors and did so in § 305 (g) of Title 50 U.S.C.A.Appendix. That statute has been invoked in behalf of this relator. It was the duty of the courts to interpret it and this court has already done that in United States v. Kauten, 2 Cir., 133 F.2d 703 . But it was the duty of the relator’s draft board to determine whether he held in fact the kind of belief which entitled him to special classification under the statute. On this appeal from the order dismissing the writ of habeas corpus, we ought to determine first whether the record shows that the draft board gave the relator a fair hearing. If it did we can only determine whether it found the facts upon substantial evidence and after due deliberation. If these queries should be answered in the affirmative, its findings become the facts for us and its action should be upheld if it correctly applied the law to the facts as found. On this appeal the decisive issue concerns the fact as to the source of the relator’s belief. He needed to prove, to come within the statute, that it was religious within the interpretation of that in the Kauten case. I regard the decision of the draft board adversely to him on that question to be final on the evidence in this record. Not because any positive finding was warranted, but because the failure to find affirmatively the needed basis for his belief was not clearly erroneous. The very complexity of the inquiry to determine whether an individual thinks as he does because of certain kinds of reasons made it difficult to arrive at a solution in the first instance but with the problem once solved by the draft board in the statutory way that very difficulty makes a proper review correspondingly less difficult; not because the actual fact may be plain for all to see but because the relator is entitled to no more than to have the draft board act fairly and reasonably in finding or failing to find problematical facts as best it can on the evidence before it. Congress might have made the relator’s task easier by doing away with all vestige of a tie to religion as the basis of the requisite belief but it clearly did not do that. We have tried to give effect in the Kauten case to the change actually made from the 1917 Act in that respect. Although that case was not decided until .after the draft board had made its classification of this relator, we certainly should not assume that it would have made any difference in the inability of the draft board to find that his antipathy to participation in war did not spring from his political views. Reasonable men might well differ upon whether this young man proved that he based his conscientious objection to participation in war upon religious training and experience as defined in the Kauten case. He attempted to bolster his own assertions that he did by introducing his play in evidence. As might be expected, perhaps, it contains passages from which one may argue both ways as to what engendered the relator’s mental attitude toward participation in war. Both sides rely on it and under the circumstances it did not compel a decision by the draft board one way or the other. Neither did the assertions of the relátor himself. And, as seems abundantly clear, neither did all the evidence combined. If, as I think, the evidence left an essential fact doubtful, whatever classification this relator should be given is the one his draft board arrived at after due consideration of the facts as reported by an able *527 and impartial hearing officer. When such an administrative agency failed to find on equivocal evidence a disputed and obscure fact which the relator was bound to prove to get a statutory privilege and the appeal board made no change, all but the merely formal of his remedies were exhausted. Sec. 10 (a) (2) of the Act; United States v. Bowles, 3 Cir., 131 F.2d 818 . I would affirm the order. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9639740. Public record. Not legal advice.