Opposition Brief — Mansavage v. United States

Page

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Statute and regulations involved ......................... 2

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CITATIONS

Cases :

Billings v. Truesdell, 321 U. S. 542.................... 22

Bowles v. United States, 319 U. S. 33.................. 19

Coz v. United States, 332 U. 8. 442.................... 21

Falbo v. United States, 320 U. S. 549.................. 19

Niznik v. United States, 173 F. 2d 328, certiorari denied,

en SE ORE edians bay cuss bac bee aehuw a keus cae 15, 20

Peterson v. United States, 173 F. 2d 111, certiorari de-

& 2 8 f See raerpes perros 15

Smith v. United States, 157 F. 2d 176, certiorari denied,

NG Ne Es Satie 65.8 Sow wns cx op eee: 20, 21

United States v. Balogh, 157 F. 2d 939, reversed, 329

URN feo ew cans ay ane oe pian oP neo 19, 21

United States v. Zieber, 161 F. 2d 90, certiorari denied,

CN tw sa ee ua Sear ccbuds wanwor eee .. 20,21

Statute:

Selective Training and Service Act of 1940, 54 Stat. 885,

57 Stat. 596, 50 U.S.C. App. (1946 ed.) 301 et seq... .. 3

Section 11 (50 U.S.C. App. (1946 ed.) 311)........ 24

Regulations :

Selective Service Regulations (32 C.F.R. Cum. Supp.

(Ch. VI):

I bien wig Ge toys hia ue ee ROTOR 15, 17, 24

is. o's Cas goin uw Verde ook REE 15, 25

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IN 9 o> 5's uh ca sald Cana Cea oa ee eee 15, 25

I 5555 5 is ok a mya Ha ewe ene oh 19, 26

ERA IPE tape a kee Nl 22, 26

Miscellaneous :

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Opinion No. 14, Director of Selective Service.......... 19, 27

a

Inthe Supreme Gourt of the Wnited States

OctToBER TERM, 1949

No. 615

JOHN MANSAVAGE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (R. 222-232)

is reported at 178 F. 2d 812.

JURISDICTION

The judgment of the Court of Appeals was

entered on December 27, 1949 (R. 232-233). Upon

timely application therefor, petitioner’s time for

filing a petition for a writ of certiorari was ex-

tended by order of Mr. Justice Minton to February

(1)

BR ei

2

20, 1950 (R. 238), and the petition was filed on that

date. The jurisdiction of this Court is invoked

under 28 U.S. C. 1254(1). See also Rules 37(b) (2)

and 45(a), F. R. Crim. P.

QUESTIONS PRESENTED

1. Whether petitioner was denied procedural due

process by failure of the local selective service

board (1) to reduce to writing and include in his

file oral evidence offered by petitioner at the time

of his personal appearances before it, or (2) to

grant him full and fair hearings.

2. Whether the trial court properly withheld

from the jury the question whether petitioner was

accorded full and fair hearings.

3. Whether the evidence shows that petitioner

failed to perform a duty imposed upon him, i. e.,

to submit to induction, as charged in the indict-

ment.

STATUTES AND REGULATIONS INVOLVED

The pertinent provisions of the statute and regu-

lations involved are set forth in the Appendix,

infra, pp. 24-27.

STATEMENT

An indictment filed on January 21, 1948, in the

District Court for the Northern District of Illinois

charged that on or about June 27, 1946, at Chicago,

Illinois, petitioner knowingly and wilfully neg-

lected and failed to submit to induction, as required

—_

3

by the Selective Training and Service Act of 1940

(R. 2-3).

On February 16, 1942, petitioner registered under

the Act with Local Board No. 1, Stevens Point,

Wisconsin (Gov. Ex. 1 and 1-A, R. 129, 160-161;

R. 66-67). On May 21, 1942, he filed his selective

service questionnaire in which he stated, inter alia,

that he was single and that his education consisted

of eight years of elementary schooling ; that he was

employed as a farm laborer by Anton Mansavage,

his father (Gov. Ex. 1-B, R. 162; R. 12), at an aver-

age wage of $40 a month; that he had worked in that

job for ten years; that he had no other business,

work or profession; that his job was to prepare

the soil, plant, care for and harvest crops and take

care of cattle and horses; that he was not a student

preparing for the ministry in a divinity school and

that although he had not been formally ordained,

he was and had been a minister of Jehovah’s Wit-

nesses since August 1936; that because of his re-

ligious training, he was a conscientious objector

to war; and that in his opinion his classification

should be 4-D (minister) (Gov. Ex. 1-B, R. 162-

167; R. 13-14, 67). Petitioner also filed the special

selective service form for conscientious objectors

in which he claimed exemption as such (4-E) and

stated that he had derived his religious training and

beliefs from study of the Bible and the publications

of the Watchtower Bible & Tract Society since

1930; that the only school he attended was a public

PS acuaee Dee gar ak Seth ms ar ee ere

4

school; that he had been a.member of Jehovah’s

Witnesses since 1936 and engaged in house to house

witness work of Jehovah; that the church he custo-

marily attended was Odd Fellows Hall, Stevens

Point, and individual homes, of which he, Frank

Laszewski and David Mansavage were the pastors;

and that the basis of his opposition to war was

found in the Bible (Gov. Ex. 1-C, R. 168-173; R.

14, 67). On July 24, 1942, the local board classified

petitioner 1-A-0 (conscientious objector available

for noncombatant military service) (Gov. Ex. 1-B,

R. 167; Df. Ex. 12X, R. 195; R. 15, 67-68).

Upon petitioner’s request in an affidavit dated

July 30, 1942, that he be given a hearing to consider

a change of his classification to 4-D on the ground

that he was an ordained minister of Jehovah’s Wit-

nesses and was actively engaged in preaching the

gospel (Df. Ex. 9 and 13, R. 193, 197; R. 29, 68), he

appeared before the local board on August 11, 1942,

and was referred to a member of the board (R.

24-25, 68-69). A memorandum of the same date,

signed by the board member and placed in petition-

er’s file, summarized only petitioner’s statements

made at that time about his family, his part-time

work in a lumber yard, and the kind of a farm his

father operated, and concluded that his request to

be classified 4-D was denied, but that the board had

voted that he be classified 4-E (conscientious ob-

jector to both combatant and noncombatant mili-

tary service) (Df. Ex. 1, R. 184; R. 24). Petitioner

appealed from this classification on August 20,

1942 (Df. Ex. 5, R. 187-188; R. 15, 27, 167), and his

file was forwarded to the board of appeal (Df. Ex.

10, R. 29, 194). That board referred the case to the

Department of Justice, whose hearing officer con-

ducted a hearing on November 30, 1942, at which

petitioner and his brother were present. The re-

port of the hearing officer shows that petitioner

explained his house to house work as a Jehovah’s

Witness and his conscientious opposition to war

as described in his questionnaire and special form

for conscientious objectors, and that the hearing

officer found that petitioner was sincere in claiming

conscientious objection to participation in war.

The report also quoted an F. B. I. investigative re-

port which showed that petitioner and his family

were Jehovah’s Witnesses, that petitioner was

actively engaged in house to house witness work

and had attended annual conventions of Jehovah’s

Witnesses, and that he commenced this activity in

1940, ‘‘performing a total of 126 hours of such

work from October 1940, to September, 1941, and

196 hours from September, 1941 to date [November

4, 1942].”” (Gov. Ex. 1-D, R. 174-178; Df. Ex. 6,

R. 189; R. 15-16, 28.) On February 19, 1943, the

board of appeal continued petitioner’s 4-E classifi-

cation (R. 16, 167-168).

On February 23, 1943, the local board received

and placed in petitioner’s file a letter signed,

‘Several disgusted citizens of Plover,’’ which con-

6

tained inflammatory and antagonistic remarks

about petitioner’s classification as a conscientious

objector (Df. Ex. 8, R. 192; R. 28-29).

At the local board’s request, petitioner on March

11, 1943, prepared and filed an agricultural ques-

tionnaire in which he explained his work on the

farm and added that, aside from his work as a

farmer, he also drove a truck (Gov. Ex. 1, R. 134-

136 ; R. 25).

On March 31, 1943, the local board again heard

petitioner upon his request for a reclassification to

4-D (R. 17-18, 25, 73-74). A memorandum of that

date signed by a board member appears in peti-

tioner’s file and contains a summary of the hearing

to the effect that petitioner was informed that he

could not be classified 4-D under the board’s in-

terpretation of the selective service rules, that the

board could do nothing further except consider him

for an agricultural deferment, and that as matters

then stood he would either have to work full time

as a farmer or be sent to Milwaukee for final

examination. The memorandum also stated that

petitioner expressed dissatisfaction with the

board’s action and his intention, with the board’s

approval, to confer with Selective Service officials

in Madison, Wisconsin. (Df. Ex. 2, R.185.) Peti-

tioner did so (R. 77) and thereafter, on April 7,

1943, formally withdrew his ‘‘claim as a conscien-

tious objector’’ and requested ‘‘that no further con-

sideration be given by Selective Service Boards to

7

any statements made by me and on record pertain-

ing to conscientious objection.’’ (Gov. Ex. 1-E,

R. 178; R. 17, 79.)

On April 8, 1943, petitioner again appeared be-

fore the local board. A memorandum of that date

appears in petitioner’s file and recites that peti-

tioner appeared and stated that he intended to

devote his entire time to farming and that, accord-

ingly, he was classified II-C (agricultural defer-

ment) with the definite understanding he would be

a full time farmer. (Gov. Ex. 1, R. 137; R. 17, 79.)

Petitioner was continued in this classification until

the spring of 1946 (R. 17, 79, 97-98, 168).

On March 19, 1946, about two weeks after peti-

tioner had filed a periodic supplement to his agri-

cultural questionnaire in which he indicated that he

was still devoting his full time to farming (Gov.

Ex. 1, R. 149-150), a county agent reported to the

local board that he had found petitioner working

in a lumber yard and that petitioner advised him

that the ‘‘work on the farm [was] done up”’ (Gov.

Ex. 1, R. 150-151). On April 3, 1946, the board

reclassified petitioner 4-E (Df. Ex. 7-A and 15, R.

190, 198; R. 17, 79).

Upon petitioner’s request (Df. Ex. 12, R. 196;

R. 30, 79), the local board gave him a hearing on

April 17, 1946 (R. 18, 79). A memorandum of the

hearing, signed by a member of the board, recites

that petitioner requested a 4-D classification and

was not interested in any other and stated that he

8

did chores at the farm in the morning and worked

the rest of the day at a lumber company. After

reviewing the file, the board reclassified him 1-A.

(Gov. Ex. 1-F, R. 179.) Petitioner appealed and

addressed a letter to the board of appeal stating

that the Watchtower Bible and Tract Society recog-

nized him as an ordained minister, and that he was

then devoting 3914 hours a month to preaching and

from 60 to 100 hours a month to study (Df. Ex.

3, R. 186; R. 26,99). On June 6, 1946, the board of

appeal also classified him 1-A (R. 191).

On June 14, 1946, the local board ordered peti-

tioner to report for induction on June 27, 1946 (Df.

Ex. 18, R. 203; R. 19-20, 99). He appeared as

ordered with the hope that he would be classified

4-F (physically unfit) and was transferred to the

induction station at Chicago, Illinois. There he

took his physical examination, was found physi-

cally fit and acceptable for military service, re-

ceived a ticket for his army clothes, and then,

instead of proceeding to the room where the induc-

tion ceremony was performed, he left the induction

center and thereafter failed to reappear for induc-

tion. (Gov. Ex. 1, 1-H and 1-I, R. 151-155, 180-

183; R. 32-41, 100-101.)

In defense, petitioner’s counsel sought to ex-

amine him concerning his discussions with the local

board at his various hearings. On objection by gov-

ernment counsel to the materiality of such testi-

mony, the court ruled that evidence supplementing

9

the selective service record should be directed to the

court and not be brought to the attention of the

jury. -Petitioner’s counsel conceded the correct-

ness of this ruling, provided the proffered testi-

mony was not disputed by the Government, but he

insisted that otherwise the testimony should go to

the jury. The court sustained the Government’s

objection, but permitted petitioner’s counsel to

proceed with this line of examination outside the

presence of the jury (R. 68-71, 73). Petitioner

then testified that at the hearing on August 11,

1942, after he had been classified 1-A-0, he ex-

plained to the member of the local board that he

preached the gospel from house to house and that

his ordination was derived from the scriptures;

that the member interrupted him in his presenta-

tion of scriptural authority to support his claim

that he was a minister of the gospel and stated that

‘*it has been decided in Washington that none of

Jehovah’s Witnesses were ministers, and the Local

Board wasn’t going to regard [him] as a minister

either’’; and that he was also advised that if he

‘‘was willing to set aside [his] ministry and put

[his] full time into farming that they would give

[him] a 2-C classification’’ (R. 71-72).

In respect of the hearing on March 31, 1943, after

his classification in 4-E by the board of appeal,

petitioner testified that he repeated his explanation

of his ordination and preaching activities to three

other members of the local board, including the

10

chairman; that the chairman told him that his

status as a minister had been decided by the board

of appeal and that the local board could not ‘‘go

over the heads’’ of that board; that he insisted to

the board that his activities came within the defini-

tion of a ‘‘regular minister’’ set forth in an opin-

ion issued by General Hershey which was read

at the hearing; and that he offered ‘‘to bring in

records from the Kingdom Hall and other wit-

nesses and ministers to testify in my behalf.”’

He said the board ‘‘refused to let me do this’”’ and

that the chairman ‘‘told me once, if he told me a

dozen times, that it has been decided in Washing-

ton that Jehovah’s Witnesses were not ministers

and I was not going to get 4-D classification, and

they wouldn’t give me the class of 4-D either. He

told me if they gave me a 4-D classification they

would have to give all the rest of Jehovah’s Wit-

nesses a 4-D classification. He said there wasn’t

any of Jehovah’s Witnesses got a 4-D classification,

and I wasn’t going to get one either.’’ (R. 74-76.)

Petitioner said that he withdrew his claim for

a 4-E classification on April 7, 1943, solely upon the

advice of the Department of Justice hearing officer

that the local board could not classify him 4-D as

long as he claimed to be a conscientious objector

(R. 77-79, 94).

Petitioner testified that at the hearing on April

17, 1946, which resulted in his classification in 1-A,

he again explained his ‘‘ministry’’ and told the

_

ll

local board that he performed baptisms, conducted

funeral sermons, preached the gospel from house to

house, and, with others in the congregation, gave

‘‘Bible talks’’ at gatherings to which the public

were invited. He also told the board that since

1943 he had received two years of vocational school

instruction, that during the preceding four years he

had attended a ‘‘school in theocratic ministry”’ in

Stevens Point where, at weekly sessions, he re-

ceived instruction in the preparation and delivery

of Bible talks, that he had also been an instructor

in a similar school, and that he devoted 60 to 100

hours a month ‘‘in preaching the different sermons

and also in making preparations for the conduct of

this school.’’ He testified that his offer to produce

records and affidavits in support of his claim to

ministerial status was refused by the board because

it had ‘‘been decided in Washington that Jehovah’s

Witnesses aren’t ministers’’ and because the board

of appeal ‘‘had already acted on my case.’’ The

board again offered him a 2-C classification if he

would devote his full-time to farming. (R. 80-85.)

On cross-examination on this phase of his testi-

mony outside the presence of the jury, petitioner

admitted that he never submitted to the board any

affidavits or other written statements concerning

his asserted activities as a minister and as a student

and instructor in the ministry school and that he

never appealed his 2-C classification (R. 86-93).

Petitioner offered in evidence the deposition of

12

W. T. Doar, chairman of the board of appeal at the

time of petitioner’s classification in 1-A in June

1946, in an attempt to show that the appeal board

acted in an arbitrary and capricious manner, that

there was no basis in fact for its determination, and

that it considered the letter in petitioner’s file

which the local board had received from ‘‘Several

disgusted citizens of Plover’’ (supra, pp. 5-6). The

court rejected the offer because the question it

raised was not one for the jury, but excerpts from

the deposition were read into the record. (R.

48-50.) In these excerpts Mr. Doar stated that he

had no independent recollection of acting on peti-

tioner’s 1946 appeal, but that the board normally

reviewed the registrant’s complete file together

with the applicable selective service regulations

and acted upon the whole record, that upon the

basis of the information in petitioner’s file, the

board ‘‘might have concluded that a man who was

not formally ordained was not a minister of re-

ligion’’ (R. 57), and that, normally, the board never

gave any consideration to letters such as the one

written by the Plover citizens. (R. 50-63.) !

At the close of the evidence the trial judge stated

(R. 103): ‘‘I have read the record of the Regis-

tration Board, together with the record of the Ap-

peal Board in connection with this matter, and I

’So far as appears from the record, petitioner laid no

foundation for the use of this deposition at the trial by showing

compliance with Rule 15, F. R. Crim. P., either in taking it

or in establishing that Mr. Doar was unavailable as a witness.

13

am satisfied there is a substantial basis in fact to

support the classification.’’ The court also denied

petitioner’s motion for a judgment of acquittal

(R. 108-109) and refused his request for the follow-

ing instructions (R. 113, 205) :

If you find and believe or have a reasonable

doubt thereof that the defendant gave orally

to the board new and further information

about his ministerial status upon the occasion

of any one of his hearings which was con-

sidered by the board and failed to reduce such

new and further oral information to writing

you shall acquit the defendant and by your

verdict find him ‘‘not guilty’’ of the offense

charged in the indictment.

You are further instructed that the local

board had made memorandums following the

various hearings before the board which do

not contain any summary of the evidence the

defendant says he gave about his ministeria!

status. If you believe that this is sufficient

proof to you that no additional evidence was

considered although given or that the local

board denied the registrant the right to give

new and further information about his min-

istry and further you find and believe or have

a reasonable doubt that such failure to con-

sider or receive evidence offered by the defend-

ant was because the board was no longer con-

sidering whether or not he was exempt, then

you are charged that there was a denial of

procedural due process of law by the board and

you should acquit the defendant and by your

verdict say ‘‘not guilty’. [R. 205.]

he was sentenced to imprisonment for one year and

14

The court instructed the jury in part as follows:

After such registration by an individual it

becomes the duty of each Local Draft Board,

set up under the Act, to classify each individual

in one of a number of different classifications,

and under the provisions of the Act and the

regulations promulgated by the President

under the authority of the Act, any individual

entitled to do so may appeal from any classifica-

tion given him by his Local Draft Board.

After a registrant takes such an appeal, he

does so appeal, and the appeal has been denied,

his classification becomes final, and under the

law he is required to obey any lawful order

issued by his Selective Service Board there-

after in accordance with his classification. The

jury cannot review the actions of the Selective

Service Boards or the Appeal Boards. (R.

121.)

* * * * *

You are also advised that the Selective

Training & Service Act of 1940 and the rules

and regulations promulgated thereunder pro-

vide that certain persons may be classified as

ministers of religion and may be put by the

Selective Service Board in what is known as

Class 4-D; the question whether or not a reg-

istrant is entitled to be classed as a minister

of the Gospel, or whether the defendant since

that date is in fact a minister of the Gospel

is not for you to determine (R. 122-123).

The jury found petitioner guilty (R. 208) and

15

a day (R. 208). Upon appeal, the Court of Ap-

peals affirmed the judgment of conviction (R. 232-

233).

ARGUMENT

1. Petitioner contends that the local board denied

him procedural due process (a) by failing, in viola-

tion of Regulations 623.2, 625.2(b), and 627.13(a)

(infra, pp. 24-26), to reduce to writing and thus

make available to the board of appeal the oral

information he gave it at his hearings, and (b) in

failing to give him full and fair hearings on his

appearances before it (Pet. 3, 17, 27-39).

(a) In respect of the first aspect of this conten-

tion (Pet. 27-32), the court below held, citing

Nizntk v. United States, 173 F. 2d 328 (C.A. 6),

and Peterson v. United States, 173 F. 2d 111 (C.A.

6), certiorari denied in both cases, 337 U. S. 925,

that ‘‘The summaries prepared by the local board

* * * satisfied the requirements of the Selective

Service Regulations’’ and that ‘‘all such facts as

had any substantial bearing on defendant’s status

can be found in or ascertained from the documents

in his Selective Service file’? (R. 228). The record

supports this holding.

After each hearing the local board placed in peti-

tioner’s file a summary of his statements, as re-

quired by section 625.2(b) of the Regulations. It is

true that these summaries do not contain the in-

formation he gave the board about his religious

work, beliefs and study, but this information was

16

already in petitioner’s file. His own testimony

indicates that at the August 11, 1942, hearing, he

did not present any information pertinent to his

claim for a 4-D classification which was not already

contained in his Selective Service questionnaire,

in the special form for conscientious objectors filed

on May 21, 1942, and in his affidavit of July 30,

1942, outlining his work as a Jehovah’s Witness.

The same is true in respect of his oral statements

to the board on March 31, 1943. By that time there

was also in petitioner’s file the Department of

Justice hearing officer’s report, dated November

30, 1942, which contained a comprehensive descrip-

tion of petitioner’s beliefs, his religious training,

his work as a Jehovah’s Witness, and the number

of hours he devoted to this work.

In respect of the April 17, 1946, hearing, peti-

tioner’s own testimony indicates that he repeated

most of what he had said in 1943 concerning his

beliefs and his work as a witness. In addition, he

advised the board that he had received further

training since 1943 in preparing and delivering

Bible talks. This latter information was not con-

tained in the summary of this hearing prepared

by the board, but in his letter to the board of appeal

accompanying his appeal petitioner gave a sum-

mary of the time he devoted to his religious work

(supra, p. 8). His statements to the local board

concerning his attendance at the ministry school,

where he learned ‘‘ways and means to preach the

17

Gospel to the people in a better manner”’ (R. 81),

added nothing to the information already in his

file.

(b) Petitioner’s contention that the local board

denied him full and fair hearings on the grounds

(1) that the board did not, as required by

section 625.2(c) of the Regulations, consider

his classification de novo after each hearing

(Pet. 33-35), and (2) that the board was preju-

diced against Jehovah’s Witnesses (Pet. 35-39),

was rejected by the court below as having ‘‘no

factual basis whatsoever. Any reasonable person,

considering the entire Selective Service file of this

defendant, must be impressed, as we were with

the consideration and care with which the local

board and the boards of appeal treated him. To

claim, on this record, that the members of the

local board or of the boards of appeal were preju-

diced against Jehovah’s Witnesses is simply to as-

sert an untruth.’’ (R. 229.)

(1) The record shows (see supra, pp. 4, 6, 7, 8)

that after each of petitioner’s appearances, the local

board voted anew on his classification, as required

by section 625.2(¢). Petitioner’s testimony rela-

tive to the local board’s statements to him at the

hearings on March 31, 1943, and April 17, 1946,

that it could not give him a 4-D classification be-

cause the board of appeal had already passed on

the question, does not indicate, as he contends, that

the local board disregarded the regulation. At

ee ee oe

18

best, it indicates that the local board did not con-

sider that the allegedly new information submitted

by petitioner on those occasions would justify it

in giving him a classification denied by the board

of appeal in February 1943 when it classified him

4-E. Furthermore, the local board’s actions in

classifying him 2-C in April 19438, after he had

abandoned his claim as a conscientious objector

and had stated that he intended to devote his full

time to farming, and in changing his classification

to 1-A in April 1946, after it found that he was

no longer engaged in farming and was working in

a lumber yard, plainly indicate careful reconsidera-

tion of his case with each new development in his

occupation and activities.

(2) To support his contention of prejudice on

the part of the local board against Jehovah’s Wit-

nesses, petitioner relies on his own testimony that

the board told him at his hearings that it had ‘‘ been

decided in Washington that Jehovah’s Witnesses

were not ministers’ and that ‘‘there wasn’t any

of Jehovah’s Witnesses got a 4-D classification,

and I wasn’t going to get one either’? (R. 76).

Upon the basis of this testimony he now makes the

wholly unwarranted assertion that the local board

members ‘‘said that Jehovah’s witnesses were not

entitled to any rights under the law’’ (Pet. 37).

Clearly, no such distorted interpretation can be

properly placed on petitioner’s testimony. Neither

does it lend any support to his contention that the

19

local board was prejudiced against Jehovah’s Wit-

nesses. At most, it indicates that the board may

have misconstrued Opinion No. 14 issued by the

Director of Selective Service (see infra, pp. 27-29),

which clearly specified that a general determina-

tion with respect to the classification of Jehovah’s

Witnesses could not be made. However, we be-

lieve that a reasonable interpretation of the board’s

statements is that the board felt that petitioner,

like many Jehovah’s Witnesses, did not have the

standing in that organization similar to that oc-

eupied by regular or duly ordained ministers of

other religions, which it was necessary for him to

show in order to qualify for the 4-D classification.

Finally, the asserted failure of the local board

to consider petitioner’s classification de novo after

each hearing and petitioner’s imputation of pre-

judice to the board are irrelevant, as petitioner

himself seems to concede (see Pet. 45), for he was

finally classified by the board of appeal (see Reg.

627.26(a), infra, p. 26) and there is no showing

that its determination was similarly affected. See

United States v. Balogh, 157 F. 2d 939, 942-943

(C.A. 2), reversed, 329 U. S. 692; Bowles v. United

States, 319 U. S. 33; Falbo v. United States, 320

U. S. 549, 555 (concurring opinion).’

2 Petitioner attempts to avoid this fatal defect in this con-

tention by his argument (Pet. 44-47) that the trial court

erred in excluding the so-called deposition of Mr. Doar, the

chairman of the board of appeal at the time it ultimately

classified petitioner 1-A. Far from tending to establish

arbitrariness or capriciousness in this action of the board of

20

2. Petitioner argues (Pet. 47-49) that the trial

court should have submitted to the jury the ques-

tion whether the local board was prejudiced and

whether it had failed to consider new evidence

offered upon his personal appearances, and he

asserts that the decision of the court below uphold-

ing the trial court’s action in not permitting the

jury to consider the testimony which he had offered

to show that he was denied fair hearings, is con-

trary to United States v. Zieber, 161 F. 2d 90

(C.A. 3), certiorari denied, 333 U. S. 827; Smith

v. United States, 157 F. 2d 176 (C.A. 4), certiorari

denied, 329 U. S. 776; and Nizntk v. United States,

supra. In the Niznik case, the Sixth Circuit said

(173 F. 2d at 336):

* * * when a board’s action is the result

of prejudice, and its classification based on

discrimination, its conduct is lawless and

beyond its jurisdiction. Estep v. United

States, 327 U. S. 114, 121, 66 S. Ct. 423, 90 L.

Ed. 567. A draft board loses jurisdiction when

it proceeds arbitrarily and without due regard

to the rights to which a registrant is entitled

under the regulations. Smith v. United

appeal, Mr. Doar’s statements, summarized at p. 12, supra,

show that petitioner’s case received fair and objective treat-

ment. And, even if, as petitioner argues, the trial judge gave

no consideration to Mr. Doar’s statements in determining that

the classification had a substantial basis in fact, any error in

this regard was cured by the Court of Appeals’ consideration

of the proffered evidence and its holding that there was

“absolutely no showing that [Mr. Doar] would, if permitted

to testify, give evidence tending to show that the Board acted

in an arbitrary or capricious manner” (R. 231).

21

States, supra. As was said in United States

v. Zieber, 3 Cir., 161 F. 2d 90, 93, ‘‘The court

below did not present the important questions

of fact, hereinbefore outlined, to the jury for

its determination or instruct the jury that

the action of the Local Board contrary to the

Act or regulations ‘would be lawless and be-

yond its jurisdiction.’ ”’

Here again, however, petitioner’s contention

ignores the fact that his final classification was

decided by the board of appeal. Hence, the as-

serted error on the part of the trial court is ir-

relevant. See Untted States v. Balogh, supra.

In any event, petitioner’s proffered testimony

raised no real issue of fact which he was entitled to

have submitted to the jury. As we have shown above

(supra, pp. 18-19), the alleged statements of mem-

bers of the local board upon which he relies as show-

ing prejudice do nct even remotely support his as-

sertion. Likewise, petitioner’s testimony relating to

the alleged additional information he gave the

local board at his various hearings did not raise

any issues which should have been submitted to

the jury as in the Smith and Zteber cases supra,

since, as we have also shown (supra, pp. 15-17),

there was no doubt that this information was not

new or additional. Hence, the court below was cor-

rect in sustaining the trial judge’s action, even

though it may have misconstrued, as petitioner

claims (Pet. 24-25), the decision of this Court in

Cox v. United States, 332 U. S. 442, as holding that

22

the validity of a selective service classification could

not be assailed in a criminal prosecution by testi-

mony tending to show prejudice on the part of

the local board, so long as the classification given

had a substantial basis in fact (R. 231-232). We

do not understand petitioner to contend that his

classification was not supported by the evidence

before the boards.

3. Finally, petitioner’s contention (Pet. 40-44)

that he was not guilty of refusing to submit to

induction because there was no proof that he was

directly ordered to submit, but only that he was

ordered to report for induction, is frivolous and

is refuted, as the court below pointed out (R. 231),

by the holding in Billings v. Truesdell, 321 U. S.

042, 557, that ‘‘He who reports to the induction

station but refuses to be inducted violates § 11 of

the Act as clearly as one who refuses to report at

all. * * * The order of the local board to report

for induction includes a command to submit to

induction.’’ Section 633.21(b) of the Selective

Service Regulations, infra, pp. 26-27, provided that

‘“‘Upon reporting for induction, it shall be the duty

of the registrant * * * (5) to submit to induc-

tion,’’ and it is clear that petitioner violated that

duty, as the indictment charged.

23

CONCLUSION

The petition for a writ of certiorari does not, in

our opinion, present any question meriting further

review by this Court. We therefore respectfully

submit that it should be denied.

| Puiuie B. PERLMAN,

Solicitor General.

JAMES M. McINERNEY,

Assistant Attorney General.

J Rosert 8S. ERDAHL,

Feuicia H. DuBrovsky,

Attorneys.

Marcu 1950.

24

APPENDIX

Section 11 of the Selective Training and Service

Act of 1940, 54 Stat. 885, 57 Stat. 596, 50 U.S.C,

App. (1946 ed.), 301, et seq., provided in part:

Sec. 11. Any person * * * who in any

manner shal! knowingly fail or neglect to per-

form any duty required of him under or in the

execution of this Act, or rules or regulations

made pursuent to this Act * * * shall, upon

conviction in the district court of the United

States having jurisdiction thereof, be punished

by imprisonment for not more than five years

or a fine of not more than $10,000, or by both

such fine and imprisonment, * * *.

The Selective Service Regulations (32 C.F.R.

Cum. Supp., ch. VI) involved in this case provided

as follows:

§ 623.2 Information considered for classifi-

cation. The registrant’s classification shall be

made solely on the basis of the Selective Serv-

ice Questionnaire (Form 40), Affidavit of De-

pendent Over 18 Years of Age (Form 404A),

Affidavit—Oceupational Classification (Gen-

eral) (Form 42), or Affidavit—Occupational

Classification (Industrial) (Form 42A), and

such other written information as may be con-

tained in his file. Oral information should

not be considered unless it is summarized in

writing and the summary placed in the regis-

trant’s file. Under no circumstances should

the local board rely upon information received

by a member personally unless such informa-

—

25

tion is reduced to writing and placed in the

registrant’s file.

* *” a * *

§ 625.2 Appearance before local board. * * *

(b) At any such appearance, the registrant

may discuss his classification, may point out

the class or classes in which he thinks he should

have been placed, and may direct attention to

any information in his file which he believes

the local board has overlooked or to which he

believes it has not given sufficient weight. The

registrant may present such further informa-

tion as he believes will assist the local board

in determining his proper classification. Such

information shall be in writing or, if oral,

shall be summarized in writing and, in either

event, shall be placed in the registrant’s file.

* @ @

(c) After the registrant has appeared before

the member or members of the local board

designated for the purpose, the local board

shall consider the new information which it

receives and shall again classify the registrant

in the same manner as if he had never before

been classified: * * *.

* * * * *

§ 627.13 Local board to transmit record to

the State Director of Selective Service. (a)

Immediately upon an appeal being taken to

the board of appeal, the local board shall care-

fully check the registrant’s file to make certain

26

that all steps required by the regulations have

been taken and the record is complete. If any

facts considered by the local board do not ap-

pear in the written information in the file, the

local board shall prepare and place in the file

a written summary of such facts. In prepar-

ing such a summary the local board should be

careful to avoid the expression of any opinion

concerning information in the registrant’s file

and should refrain from including any argu-

ment in support of its decision.

* * * * *

§ 627.26 Decision of board of appeal.

(a) The board of appeal shall classify the

registrant, giving consideration to each class

in the order in which the local board gives con-

sideration thereto when it classifies a regis-

trant.

* * * * *

§ 633.21(b) (32 C.F.R. 1944 Supp.) Duty of

registrant to report for and submit to induc-

ia. ** *

(b) Upon reporting for induction, it shall

be the duty of the registrant: (1) to follow

the instructions of a member or clerk of a

local board as to the manner in which he shall

be transported to the location where his induc-

tion will be accomplished, (2) to obey the

instructions of the leader or assistant leaders

appointed for the group being forwarded for

induction, (3) to appear at the place where

=

27

his induction will be accomplished, (4) to obey

the orders of the representatives of the armed

forces while at the place where his induction

will be accomplished, (5) to submit to induc-

tion, and (6) if he is not accepted by the

armed forces, to follow the instructions of the

representatives of the armed forces as to the

manner in which he will be transported on

his return trip to the local board.

Opinion No. 14 (amended), issued by the Direc-

tor of Selective Service November 2, 1942, provided

in pertinent part as follows (R. 199-203) :

Jehovah’s Witnesses claim exemption from

training and service and classification in Class

IV-D as duly ordained ministers of religion

under section 5(d), Selective Training and

Service Act of 1940, as amended, and section

622.44, Selective Service Regulations, Second

Edition, * * *

1. The Watchtower Bible and Tract Society,

Ine., is incorporated under the laws of the

State of New York for charitable, religious,

and scientific purposes. The unincorporated

body of persons known as Jehovah’s Witnesses

hold in common certain religious tenets and

beliefs and recognize as their terrestrial gov-

erning organization the Watchtower Bible and

Tract Society, Inc. By their adherence to the

organization of this religious corporation, the

unincorporated body of Jehovah’s Witnesses

are considered to constitute a recognized reli-

gious sect.

“Se

28

2. The unusual character of organization of

Jehovah’s Witnesses renders comparisons with

recognized churches and religious organiza-

tions difficult. Certain members of Jehovah’s

Witnesses, by reason of the time [which] they

devote, the dedication of their ives which they

have made, the attitude of othey Jehovah’s

Witnesses, toward them, and the record kept

of them [and] their work, are in a position

where they may be recognized as having a

standing in relationship to the organization

and the other members of Jehovah’s Witnesses

similar to that occupied by regular or duly

ordained. ministers of other religions.

* * * *

5. The members of Jehovah’s Witnesses,

known by the various names of the members

of the Bethel Family, Pioneers, Regional ser-

vants, Zone servants, Company servants, Sound

servants, Advertising servants, and Back-call

servants, devote their time and efforts in vary-

ing degrees to the dissemination of the tenets

and beliefs of Jehovah’s Witnesses. The [de-

ference] paid to these individuals by other

members of Jehovah’s Witnesses also varies

in a great degree. It is impossible to make a

general determination with respect to these

persons as to their relationship to Jehovah’s

Witnesses. Whether or not they stand in

the same relationship as regular or duly or-

dained ministers in other religions must be

determined in each individual case by the local

board, based upon whether or not they devote

29

their lives in the furtherance of the beliefs of

Jehovah’s Witnesses, whether or not they per-

form functions which are normally performed

by regular or duly ordained ministers of other

religions, and, finally, whether or not they are

regarded by other Jehovah’s Witnesses in the

same manner in which regular or duly ordained

ministers of other religions are ordinarily

regarded.

* * * * *

W v. S. GOVERNMENT PRINTING OFFICE: 1980 s796z2 s7s