Brief for Petitioner — Gibson v. United States

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SUPREME COURT OF THE UNITEDISTATE

(xorontkn Tees 1946

No. 23

TAZE HAMRICK GIBSON, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

ON CERTIORARI TO

UNITED STATES CIRCUIT COURT OF APPEALS

Pie LiGHTH CIRCUIT

iw

Havvrnx 4% Covincros

Counsel for 4" hifrone r.

No. 86

—— GEORGE WILLIAM DODEZ, Petitioner

Xs

UNITED STATES OF AMERICA, Respondent

IN CERTIORARI ‘Tuo

CMU COURT OF APPEALS

He SINGH CIRC

- Victor F. Scuming

,

i efifeane?s

JOUND BRIEF FOR PETITIONERS |

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&* *% , “ry

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INDEX

PAGE

— Suspsect INDEX

Numbers and a Of CWO CATISES ..........n--cneesoesscesssnsesnseenesesaes Front cover, 1 |

THIS INDEX . vibes Sadie anihceibngithties kane resintcsthciplahedieasey tibeosndieanantd euiicceentets i-vil

Statement of GIBSON case [No. BOE 5 scscneiisctanribtenphinpiieichegitdbtionoeseaioge 2-12

ea I ccinnh aS glo ebidt hans nloviuiicselanpiccighohibbeatbeniuiasscifidanetenaipuiag 2

Opinion below ..... ........ ach atslalieadiciasods 2

Statute and Regulations involved ae a calishpaaeaniincguhinashdeeiodiebnanle 2

Censtitutional provisions involved ; 2

- Questions presented .............. Sey Ses aH 3

' Form and history of -action ..... idcsessceutioia 4

ccna ERS HEE IRR ERR ACB s. leh 5

How issues raised .........00:.... [ gpciisensecevestncateqceosese i

—— 0 EDGE wiv uincicnachaaistrccclisehahcneeslestdecateneciadiadomacdis 12

Statement of DODEZ ease [No. oe Se

Po aE RO ae Oe oe Lasdaascilin sciatbeneaeiamigsbcieg rane CAREAT

Opinion helow ,.......0............-. ‘icemdeepelinadtiions Libeeenatiaadahiae winndanenanied 13

Stftate and regulations involved piacBocbenqanabdae ,

Constitutional provisions involved .............. fee 13

- Quesiions REA REAR eb , : eta

5 Form and history of wins ictesobeiavase lca etcastiat 15

Facets: in. ips panegesesicwontessinichonienlitee

SO TRUUNE DUIIG arian dics cceeststieincstinicnciceaseicssens ABs , 19

E.R ae nee serie rere hcoane Fewer ne sedis - 22

Sammary of joint argument .......0.0...0.04...22... Sia 22

Points for joint anqemint beh dred EAA ENE AT

Joint argument AR Aa oe ee ee 30-68

MMIII sh chessnecessresinciniantathes HE Catt SDN ee SACI RM ee 69

rie ;

¢ | | 7

a

Cases Crrep

Bentall v. ‘United States

262 F. 744

PAGE —

66, 67

Billings v. "Truesdell

321 U.S. 542, 558-559

' Baimentlial v, United States

88 F, 2d 522 Py

31-32, 34, 48, 59, 65

°

Bradstreet v.’ Neptune

61.

mS Oh EA ee

Burrus, In re

136 U. S..586 ........

Chicago M. & S. P. R. v. Minnesota

134 U.S. 418, 456-457

Cummings v. Missouri

4 Wall. aT, 320-332

61

Dodez. v. United States -

154-F: 2a 637, — U.S. —, 66 S. Ct. 1917 (certiorari

granted May 6, 1946, No. 86 Oct. 1946). ............. .

°

Estep v. United States

‘ No, 292 Oct. T. 1945, joint brief for petitioners,

pp. 85-105

14, 22, 45, 52, 61, 63

a

«

Falbo v. United States

No. 73 Oct. T. 1943:

Brief for the United States, pp. 56, 113-114 ccc cnyenne . ww

320 U.S. 549, 553 . 14, 23, 24, 30, 31, 32, 34,35, 36,

. ZL 38, 43, 44, 45, 46, 47, 58, 59, 65

Petition for Rehearing, pp. 2, 84-85 ........----cosetisromsneoneeee 24

Second petition for rehearing (overruled

322 U.S. 770), pp. 10-27 22, 43

Cases CITep continued

Felton v. United States

96 U.S. 699 .

Gibson v. United States :

- No, 221 Oct. T. 1945, Government’s Memorandum in

‘ @pposition to granting of petition for writ of

certiorari, pp. 8, 10

Giese v. United States

143 F. 2d 633, 635: (App. D. ©.) alf'd pet curlats

by an equally diyided court, 323 U.S. 682

_. Gonzales v. ' Williams

192 U.S. 1, 15

Grieme v. United States’ 7

322 U.S. 744 (certiorari denied), No. 883 Oct. T.

1943, petition for certiorari, pp. 9-13

Hargrove v. United States

67 F. 2d 820

' Harrison v. I. C. C.

211 U.S. 407, 422

-” Harrison v. Vose

50 U. 8. 372, 378 ..

Hartwell v. United States

107 F. 2d 359, 360 (CCA-5)

Herrman v. Lyle

41 F. 2d 759 ...

Hirabayashi v. United States

320 U: 8. 81, 109 orctecencecenscessenseesrense

Hovey v: Elliott

167. U.S. 409, 413-415, 417-418

Johnson v. Zerbst »

SE TE, Sis UE tthe icdeeceiceaeniatenia

Kansas City 8. Ry. v. eee Hikes tal

15 F. 2d 637 (CCA-8) spahttiets — easel

Keegan v. United States

325 U.S. 478, 493-494

Cases CITED continued

Keehn ‘v. Excess Ins. Co. of America ;

129 F. 3d 503, 506 (CCA-7) ia hesebisiecealitasnndiliieimsleee dinialeeicecnh

Kentucky v. Jones

RR EL ee , , me

Kerekes, Ex parte —

- 274 F. 870 (E. D. Mieb.)

Laws v. United States ~

66 F, 2d 870

Levers v. Anderson . : :

BS ene en a Co iaoeasiaee’ -

Manning v. Ketcham

58 F. 2d 948 (CCA-6) ....

Masters v. United States -

Oe I hahaa retain soos LURE ats S

McDonald v. United States

|

McVeigh V. United_States ake 3

11 Wall. 259, 261, 267-268

Miller v. Horton ©

152 Mass. 540.. i

Myers v. Bethlehem Shipbuilding Corp's —

eomatil v. . United 'Btates

SERS See Oh, WOE

Okamoto v. United ‘States

Ong Chang Wing v. United States

' 218 U. 8. 272, 279 .. detataiait sdpsomenneenmnelieestorcenasin

Bop “pats On: v. r. City of Parkersburg

Fenee v. yen ag

schaae L. fen. Co. v. . Hawley

Ne

47

at

pak

Cases Cirep continued

Romano, Ex parte .

251 F. 762, 764 (D. Mass.) ..............cc0-cs-0--

Savitt v. United States eat,

Ee A 7 | Reon

Sibbach v. Wilson & Co.

312 U.S. 1, 16

Smith v. United States

148 F. 2d 288, — U.S. —, 66.8, Ct. 423 0. nastenniiiia

No. 66 Oct. T. 1945, joint brief for petitioners, pp. 85-105

Tinkoff, Ex parte .

A Lie 8 Ree, “elena

United States v. American Trucking Ass’n

Se I icesohia tenis a cieinerhcoriniicnciinniciontnleinislanas

United States v. Burnett

Re Be aetcionednaiciceisienne

United States v. Burroughs

65 F. 2d 796, aff’d in part 290 U. s. 534 . ES

United States v. Daschiel ;

DB Well. COG, COT TOE nace nsenacccccescccevesees

United States v. Grieme :

4) gS eae Ariel AR eer Re en npr oy

United States v. Hoffman

137 F. 2d 416 .............. Seieiiencomrein piper crease SSD AE EP le

United States v. Houghton Ns

14 F. 544 ws oa ar eee Ee joumpianaii a ae

United States v. Kirby

I Senn repeorsctecenteerainne Cvcname Sage

, United States v. Lovett

- U.S. —, 66 S. Ct. 1073, 14 Le W. 4390 on cecnnstienenesene obra

United States v. Madole ; :

ie eee 2 ee

United States v. Murdock eek ;

et U.8. Se os re 65

67

61

United States v. Saglietto

41 F. Supp. BD, cannnnnneennnnesoneensnereveoconsnccsoninezesesch ins

United States ex rel. Trainin v. Cain Sts :

344 ¥. 38 O66 (CCAD). oils

Vv Eee, Cae TS

oni Cases Crrep continued

: PAGE

. Utley v. St. Petersburg :

9 Se Seer eae Wein |) Nee a piakiatixiacdeauis 38

Ver Mehren v. Sirmyer ve

a EI aise t snc ecec lanes scictentinabatiotlasesnabceiectcectiiolenah aches 52, 55

Weiss v. United States _ ; |

122 F. 2d° 675, cert. den. 314 U.S. 687 pee ae 67

Windsor v. MeVeigh a

93 U.S. 274, 277-278 acai ; .. 50,61

Wise v. Withers - 7 ase

3 Cranch 331, 336 Me eat acair ; &4

STATUTES | Crrep

Criminal Appeals. Rules (May 7, 1934), Rules XI, XTFI ............ 2,13

Judicial Code, see. 240 (a) (as amended by Act of Feb. 23, 1925) 2,13

United States Code, Title 50

See. 226 [40 Stat. 76, “Selective Service Law of 1917”}............... 54

App. Sees. 301-318 [‘Selective Training and ark

Service Act of 1940” as amended, sections——]

+ EO Ge Te esc ccececdcitercccccres 2, 13, 30

(5 (a)) 06 Ot. OF... PRR iro tenn 2,13

PW Ge Te ace 2, 13.

(11) 54 Btat. B04 oes Lccbichliptechieuanoecapestscaomemsie ois 2, 4,13

United States Constitution 2

Maal Tile, Be ick 2, 3, 10, 13, 15, ‘19, 28, 61

” Article IIT, see. 2, 18, 1-3 oooeeccccsccssesssscscnseenceee 2, 3, 13, 15, 19, 28, 61

TI TE i pitceccescrnanoicinn TSENG AERIS ste e e ae Se ae Mf OST Ue a 8

fn a, ZAERO RCI cesses BSE 2; 10, 11, 12, 13, 15, 19, 28, 61

Amendment VI BS ESRI tie a her vat eR HE sees 2 18, 15, 20

_ Sevective Service Materia Crrep 2

Opinion No. 14, Director, Selective Service FI essence reinsitinone 21

Regulations, Selective Service (32 C. F. R. Supp. 601.5-et seq.)

‘seetion— =

601.5 .... A Ae EE 2, 13

NN site ESTE I aN DN A ON Os 2, 13

etn MDP ket SCE Ruy terior te ssieonabies 2, 13

vi

‘SELECTIVE Service MATERIAL Crrep continued ph

| : . = : PAGE

. * Regulations, Selective Service (32 C.F. R. Supp. 601.5 et seq.) continued

- seetion— . : fier) s

623.1 Prat ss sdesintaiedaiaackia = Ae

623.2 .: sii ue teres, EE

023.21 echiele , 213

623.61 rh - ; 2,13 |

625.1 i 3 2, 13

625.2 : Shahla rae

MIE iecdiciaibaholibs Andes coschaasnccihinaiennelousiokdacsababedldemenakeoas 2, 13

5. aaa Seana eee mnron ne! pcuneeaieas 2, 13

627.24 Sak oleae basis "Kets ALE a he

a Ce SOR : sienape icplceialoenise shan’ ee.

629.1-629.35 ..... 2, 13, 30, 36, 37 «

633.2 ...... | | | is 2, 13

©. iipheanbie tealt cE RAR ea ee ae

RSTO end ae ee ATT SE OR x 2, 13

642.42 ace ; Ee SeR rear e Re 2, 13

651.1-651.10 ..........0c00-. :t 2, 13, 30, 36, 37

a. ae | © se awe

- 652.2 Lysis cletaeiniepacknegibieh reiosaaeabie 2,°13,. 30

A. stoners Snatcinaatesieiiauliadaslahdabiaaiia saektapssaibacihtihabaRenitiitiedidsi 2, 13, 31, 37, 52 a

NN eat arscne aalencacolhaesiceercamaphainconeieeen: joel 2, 13 —

Raat EET TIA ESTOS MOEN Easlasiae peeniedsinbatl > 2 13, 33, 36

Set haltech ae Sas CON Oe saat : Hehe: 33

653.1 ; 2, 13

eR EA ERAT EERE FREY AER RRS Brae DEO RANTS et LORS IO AEP RNEN 2 SAA 2, 13

A senitadenlatishens desosesetppibentiadetathichdsestmsatbinipbutdassdnonpaees 2, 13, 24, 25, 31, 43.

653.11 (a) (b) PE eee OL REO ee . 35, 44

hag Gao t ened es oA RSE Pee 24, 35, 39, 40, 43 |

l

| Miscz.LaNzovs CrTaTions

’ Bentham, Jeremy, Truth versus Ashhurst (London, at

Dec. 17, 1792; printed in 1823 by T. Moses, London) ............... ae

Bishop on Criminal Law, aE MD ecrndaeistaticetecatadbconnscsheibenasticztecstieens 8

Dickinson, Administrative Justice and the Supremacy of Law .

in the United States (1927, Harvard University Press, y

Cambridge, ,Mass.) pp. 44-45, 307-308 _...... sesesnnesenntenensenennnssnnnnensne ‘i.

vii } ;

2°

‘SUPREME COURT OF THE UNITED STATES —

Octoser Term 1946 —

/ o

‘No. 23 .

TAZE HAMRICK GIBSON, Petitioner

© 0. .

UNITED STATES OF AMERICA, Respondent

ON CERTIORARI TO

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

: anes

i No. 86

GEORGE WILLIAM DODEZ, Petitioner

os

_ UNITED STATES OF natRIc, Respondent

oN ee To

‘ . UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SFXTH CIRCUIT

O

JOINT BRIEF FOR PETITIONERS

Statement of Gibson Case |

| Jurisdiction —~

This court has jurisdiction. of this ¢ase under Section

240 (a) of the Judicial Code as amended by the Act of

February 13, 1925. See also Rules XI and XIII of the

Criminal Appeals Rules promulgated by this court May i

1934. The judgment of the Circuit Court, of Appeals was

--entered June 15, 1945. {96]* Petition for writ of certiorari

was filed July 13, 1945, and was grante(l October 22, 1945..

(104) 66 8. Ct. 96, 172, 677. |

Opinion Below |

The opinion of the Ciremt Court of ‘Appeals appears

in the record. [92-95] It is reported at 149 F. 2d 751.

Statute and Regulations Involved

Sections 3 (a), 5 (d),'10 (a) ‘and !11 of the Selective.

Training and Service Act. of 1940, as amended (50 U.S.

C., App §§ 301 pong. are drawn in question here, together

with Sections 601.5, 622.44, 622.51, 623.1, 623.2,. 623.21,

— 623.61, 625.1, 625.2, 626.1, 627.12, 627.24, 627.25, 629.1-629.35,

633.2, 633.21, 642.41; 642.42, 651. 1 -651.10), 652.1, 652.2, 652.11,

' 652.12, 652. 3, . 653.1, 653.2, 653.5, 653.11, Bye 12, of -the

Selective Service Regulations (32 C..F. R. Supp., 601.5.

et seq. ), priagnlgnted by the President under said Act.

Constitutional Provisions Involved

Clause 3 of Section 9 of Article I prohibiting enact-

ment of bills of attainder. Clauses 1 to 3 of Section 2 of

Article LII investing the judicial powers. The Fifth and

‘Sixth Amendments guaranteeing the rights of defendants

in criminal prosecutions and securing;due process of law.

* All figures is in this brief appearing in bracketa denote pages of the ets

record, .

: ‘, P . ~ °

My j : .

i %

As Me . ;

&

Gibson cab

Questions Presented

(1). Did Gibson’s reporting at the civilian gable serv>

ice camp pursuant’to order and his subsequent leaving, it

immediately after acceptance and exXaminatjon , constitute.

a waiver of his right to. challenge the jurisdiction of the

»Selective. Service System over him in his defense against

the indictment based. upon the administrative action?

' (2) Does the Act deprive Gibson, charged by indict-

ment with desertion from the civilian public service camp,

Poa

of the same defenses that would be available to him if he ~

had not reported at the camp, or the same rights that would

have been available to him if he had remained at .the camp

and applied fot a writ of habeas corpus?

‘(3) Did the courts below commit ‘reversible error in .

holding that Gibson could not assert the want: of juris-

diction ofthe draft boards and the illegality of the admin-

istrative orders supporting the. authority: of ‘the civilian

public service camp whose authority and orders he. is

charged by\ indictment with defy ng?

(4) ‘Does the construction placed upen the! Act and

Regulations, so as to deny Gibson the right to challenge

the jurisdiction of the draft boards and the legality of the

orders supporting the authority of the civilian publie serv-

ice camp, deny Gibson his right to due process of law, con-

trary to the First Amendment to the United States Consti-

tution, and a judicial trial, contrary to Clause 3, Section 9 .

of. Article I, and. Article I of the United States Consti-

‘tution? ©

(5). Did the trial court ‘commit reversible error in eX-

cluding the proof offered by. Gibson and in refusing the re-

quested finding of fact which tendered the issue of Gib-

son’s good faith and honest belief that he was exempt from

training and service and that the civilian public service

‘camp director had no jurisdiction to command him to re-

main at the camp?

.

a i wv, . Statement of, Gibson case

’

(6) Did thé trial court err in denying -Gibson’s .mo-

tion to quash the indictment, motion for a finding of not’

guilty and for a judgment of acquittal, in excluding prof-

fered evidence, and in denying requests for findings of

fact and conclusions of law, all of which pertained to. the

mapaety of the:administrative order? |

°

‘im and: History of Action

. This criminal action was "instituted in. the District

-“Court of the United States for the District of South Dakota

by return of an indictment charging Gibson with violation

. of the Selective Training and Service Act of 1940, as amend-

_ed, and the Regulations thereunder. [2-4] The indictment

_ charges that Gibsog, on August 23, 1944, reported at'a civil-

ian publi¢ service camp at Hill City, South Dakota, and

was enrolled there for work of: national importance. It is

‘further alleged’ that on August 28, 1944, he left said camp —

_with the intention of: remaining away. The indictment

charges that such conduct constituted a violation of sec-

tion 11 of the Selective Training and Service Act of 1940,

as amended (50 U. S.S. Cu r§ BLL). [2-3] .

Before pleading to the Indictment Gibson duly filed

and presented his motion t®squash the indictment. [8-15]

It WAS OV erruled by the ‘court. [194 Thereafter he ‘pleaded

“not guilty” on February 13, 1945. [29] A trial by jury was

waived and the case was heard’by United States District

Judge A. Lee Wyman, for the District of South Dakota.

{29] The trial without jury began-on February 13, 1945.

[29] “At the close Of all the evidence, Gibson moved for dis-

missal of ‘the indictfnent, agjudgment of acquittal and a

_ finding of “not guilty”, stating extensively his reasons.

[15-19] On denial of that motion Gibson excepted. [20, 77-78]

At the close of all the evidence he submitted to the’ court °

his ‘requested findings and conclusions, all of which were’:

refused and exceptions allowed. [78] >

at ees

wy

Statement of Gibson case | 5 )

The court found petitioner guilty. [21-22, 23-24, 78]

Petitioner excepted to the finding. [22-23] He was sentenced

-to five years and ‘committed to the custody of the Attorney

General in such place of confinement. as may be designated.

[24-25, 83] Petitioner served and filed his written notice

of appeal. (25, 26, 27, 83] He timely filed his assignments

of error which supported each ground of his appeal. In

due course the cause was argued and stibmitted to the Unit-

ed States Circuit Court of Appeals for the Eighth Cir-

cuit. [96]. The judgment of conviction was affirmed by that

court June 1, 4p, {96, 97}

ase: Facts

®. years of age, registered under the

ming and Service Act of 1940 on June 30,

1949 with local board A of El Dorado, Arkansas. -[30, 64]

He was assigned order number 12064 with said board. [30]

Questionnaire answeringt questions required of him: and —

_ He timely filed, on ak 12, 1942, a Selective Service

_in Series VIII thereof he made declaration pertaining to

his status as a minister Of religion. (30-31, 64]

In his questionnaire he stated:

‘I have completed 8 years of elementary school and

1 year-of high school. I have had the following schooling

other than elementary and high school: Divinity: school;

course of study, Ministry; have attention ¢ a full two years

and still attend.

‘The job I am now ‘working at is-minister of religion.

I do the following kind of work in my present job: Preach-

‘ing the Kingdom of God for which Jesus taught his fol-

_ lowers to pray (Matthew*6: 10).

-‘T have also worked at the following occupations other

‘than my present job, during the past 5 years: Farm laborer,

farming from 1934 to 1940. My usual occupation, or thé oc-

* eupation for which I am best fitted, is ministry. work.

‘{ prefer the following kind of work: Ministry work.

it

6 _ _ Statement of Gibson case _

I would not consider accepting a job which would require

me to move away from my®present home.

‘Tam a minister of religion. I do customarily serve as

a minister. I have been a minister of Jelfovah’s witnessés

since June 1938. I have been formally ordained. My ordi-

nation was performed on September 9, 1938 by Brother

Miller at Birmingham, Alabama. I am a student preparing

for the ministry in a theological or divinity school. T am

attending thé Watchtower Bible and Tract Society, which

was established before September 16, 1939, and is located

at 117 Adams Street, Brooklyn, New York.’ [30, 31, 64)

(Government’s Exhibit 1).

Gibson in his questionnaire claimed classification of

IV-D, the classification given ministers of religion under

Section 5 (d) of the Act. He showed. that he devoted sub-

stanfially full time tothe performance of his work as @

minister of religion. [30, 64)

The local board, on November 6, 1942, denied his claim

‘fot exemption and placed him in Clags I-A, as liable for

training and service in the armed forces. [30] He duly and

timeiy appealed. [30] The board of appeal, on May 8, 1943,

upon consideration of his draft board file, reversed the

classification of the local board and placed Gibson in

' Class IV-E, thereby denying his claim for exemption from

training and service as a minister of religion under Sec-

tion 5 (d) of the Act and making him liable for service in -

a civilian public service ¢amp as a conscientious objector.

{30} (Government’s Exhibit No. 1)

_ Gibson wrote to the State. Director and requested him

to appeal the determination to the President and to stay

the induction process. -(50-51, 69] The State Director did

not take action.-The National Director was requested to

take action in behalf of petitioner’ by appealing the de-

termination to the President. (50-51, 69] On a review of the

case, the National Director refused to take an appeal. (69)

- ,

‘

.

’

Statenient of Gibson case. — es

On May 23, 1944, Gibson was assigned to dé work in a civil-

ian public service camp. [30, 31] On or about September 1,

1943, Gibson was commanded to appear on September 22,

1943, for a preinductic » physical examination. (51, 69] In

1944 he was again given such an examination andrater noti- |

fied. by his local board that he had been found “physically

fit” and accepted for ‘civilian service’. [51-52, 69]

On August 8, 1944, the local board mailed ‘to him an.

Order to Report for Work of National Importance, that

commanded him to appear at the local board in Carlinville, .

Illinois, at 2 p.m. on August 21, 1944. [30, 31, 69] On that.

date he did appear at that local board and received his

- transportation to the camp in South Dakota. [30,: 70]

Thereupon he proceeded from the local board to the Civil-

ian Public Service Camp at Hill City, South Dakota, where

he remained until August 28,.1944, when he was given oA

physical examination. (30-31, 70]

On arrival at the camp Gibson found that the camp

director and camp physician were away. [70] After staying ©

at the camp three days without performing any work. what-

ever, Gibson finally saw the camp physician upon his re-

turn. [70-71] He was examined and found physically ac-

ceptable. [70-7,] He did not report to do work of national ..

importance. [22, 30) The civilian public service camp re- |

ported that Gibson appeared at the. camp to complete the

administrative processes incident to induction. [33-34] »

' (Petitioner's Exhibit A) The camp records also showed that

Gibson was a missionary evangelist. engaged in preaching.

the gospel of God's kingdom as a direct representative of

the Watchtower Bible and Tract Society and that he was

ordained in 1938 and had heen engaged in'the ministry work

full time since 1940. [36] (Petitioner’sExhibit C) The re-

port of the examining’ physician was recéived in evidence

and showed that Gibson had been declared acceptable and

found to be physically fit. [36] (Petitiqner’s Exhibit D) -

'§ | Statement of Gibson case

After completion of the physical examination Gibson

talked to the camp director immediately after arrival of the

director at the camp. [33,71] The first thing Gibson did was

‘to hand to the camp director a-typewritten letter reviewing

the history of his work as a_minister and the history of.

his efforts to obtain an exempt classifivation as a minister

of religion from the draft boards., (33, 71] Gibson then told

the camp director that he was in a covenant with Almighty

God JEHOVAH to do His will by preaching the gospel of

(iod’s Kingdom, which mast be proclaimed to all nations.

He also informed the director that lie did not ask the draft

boards to give him a “conscientious objector” classification, -

but that the undisputed evidence in his draft board file

showed he. should have been given the exempt classification

of IV-D which is given to:al] ministers of religion. [33-34,

71-72] Moreover, lie pointed out that he had obeyed every —_

order of the boards including their unlawful order to re- .

port to the camp. [70-71] He further informed the camp

director that, as stated in the letter, he cauld not stay at

the camp. [31-34, 71-72] The director told him that he would

he prosecuted if he left the camp. [31-38, 74-75] Gibson re-

plied that if he was it would not‘be the first time a Chris-

-- tian had been punished for following Christ Jesus; that

Christ Jesus had been unlawfully charged, tried and con-

victed because of keeping His covenant with Jehovah God,

_ as well as His apostles; that since Jesus’ apostles refused

to step aside from their preaching work and follow the com-

- mand of the governments of theiv/day, so also he (Gibson)

_ as a Christian must follow in their footsteps. [74-75] He

also pointed out to the director that he must obey God

rather than the unlawful commands of the draft boards and —

the operators of the camp; that he stood ‘in the same posi-

tion of the three Hebrews who, when ordered to.bow down

and worship. the golden image in ancient Babylon, firmly _ |

refused and, for such refusal were thrown into the burning

e fiery furnace. [74-75] Gibson said that he would sdy, as

Statement of Gibson case +. — 9

did the three faithful Hebrews, that if God sees fit to de-

- liver him he will do so but that if God sees fit not to deliver

him he, nevertheless, will continue to obey God regardless

_ of the consequences. [74-75]

Before leaving, Gibson told the camp director that he

had reported to the camp only to exhaust the administra-

tive process in order to obtain correction of the illegal clas-

sification. of the draft boards. [38-39] He then asked the

director to give him a statement showing that he had re-

ported in camp,on August 23, 1944; and that after complet-

ing thé administrative process, without performing any

work, he left the camp voluntarily. [33-34] (Petitioner’s

Exhibit E) Upon receiving this statement from the diree-

’ tor, Gibson left the eamp. [33-34, 38-39]

Thereupon Gibson returned to his missionary field and

_ resumed his evangelistic ministry in indiana. He was ar-

rested by an agent of .the Federal Bureau of Investi

tion on December 2, 1944, under a charge of violating

Selective Training and Service Act of 1940. (44, 45-46, 65]

Gibson testified that he attended a divinity school, pre-

paring to become a minister of the. Watchtower Bible and

Tract Society and Jehovah’s witnesses, a religious organ-

ization recognized by the Selective Service System, from

1935 te 1938. [61] That he had been a minister of that or-

ganization since 1938 and that he had been a full-time

pioneer ininister, devoting substantially his full time, since

-the fall of. 1949. [61-62] That he was engaged primarily in

_ carrying out his Christian duties as a minister of the gospel

by engaging in evangelistic work of calling upon the people

from house to house, locating people of good Will toward

Almighty God and the work of.Jehovah’s witngsses and in

arranging for conduct of Bible studies in Komes of the

people interested in that work, and by public street preach-

ing by distribution of literature containing Bible sermons, .

in Macon, Mississippi; El] Dorado, Arkansas; Enid, Okla-

10 ; Statement of Gibson case

homa; Verdun, Illinois; and Clinton, Indiana. (59-66) That

he also performed regular ministerial duties in connection

with the congregation of Jehovah’s witnesses: located in

El] Dorado, Arkansas, where he each Week delivered ser-

mens and performed ministerial duties to that congrega-

tion as its minister and as assistant to the presiding elder

of the congregation. [59-63, 64, 65-66 | g

How Issues Raised

By motion to quash, Gibson challenged the. eonstitu-

tionality of the criminal sanctions clause of the Act because

if the only means of challenging the illegality of the action

of the draft boards was by writ of, habeas corpus, it de-

prived him of his constitutional rights of due process and —

converted the Act into a “bill of attainder” contrary to the

Constitution. [9] Moreover, in the same motion he asserted

that*the Act and. Regulations had been construed so as to |

require him to report in South Dakota to.exhaust his ad-

ministrative remedies, forcing him to stadgd trial in_ a

strange, far-away district and State where thecontroversy

did not arise, making it impossible for him to obtain com-

pulsory subpoena powers over his witnesses, all of which

was arbitrary, unjust, unreasonable and depriving him of

his rights and liberty without due process of law, contrary

to the Fifth Amendinent to the United States Constitution.

[8-11] The motion to quash wax overruled, to which Gibson ;

excepted. [19, 29)

Although the trial court allowed the PAT to

' introduce into evidence the questionnaite, documentary evi-

dence attached to it by Gibson was excluded from evidence.

[31,-48-52] All material and relevant documents filed in

Gibson’ s. Cover Sheet With the draft board that were con-

sidered by the administrative agency in arriving at his final

classification, whereby he was denied his exemption from

duty as a minister of religion, were identified and offered

-&

fo

Statement of Gibson case il

in alles: [48-32, 59-56] These various documents were

excluded from the evidence by the trial court despite the

fact that they were offered to show that the order on which

the indictment was based! was- illegal, arbitrary and capri- |

cious, ultra vires, without jurisdiction, contrary to law,

without support of any substantial evidence, contrary to the

undisputed evidence, and contrary to the due process clause

. of the Fifth Amendmeat. [48-56} Exception was duly taken

_to the action of the trial court in excluding this documen-

tary evidence. [56-57} Gibson requested the court to try

‘the issue of his exemption from duty and want of author-

ity of the draft board de novo. (47-48, 57-58, 66-68] He _

offered his own testimony, as well as that.of another wit-

ness. [57-58, 66-68] By the de novo evidence thus offered

he attempted to prove that he performed his work as a min- |

ister of religion without commercial gain; that he was an-

ordained minister of religion; that he stood in relation to

congregations of Jehovah's witnesses as do ministers of.

the popular orthodox religious denominations. [57-58, 66-68]

Moreover, he offered to show de novo that he regularly

performed duties and ceremonies like those ordinarily per-

formed by ministers of the orthodox religions, such as bap-

tismal, memorial, burial, and other ceremonies usually per- . .

formed only by ministers of religion. [57-58, 66-68) Addi-

tionally, he offered to show that he was recognized by oth- _

ers of Jehovah's witnesses and by other persons not Jeho- .

vah's witnesses as standing in the same relation to the

Watchtower Bible and Tract Society and Jehovah's wit-

nesses as do the regular and ordained ministers of orthodox —

religions. [57-58, 66-68] This evidence offered for the pur-

pose of review de novo was exeluded by the trial court, to

which exception was duly taken and allowed. [59, 69)

Gibson duly urged his motion for dikmissal of the in-

dictment and for judgment of acquittal at the close of all

the evidence. [15-19, 77-78] The grounds of fhe motion were

that the undisputed evidence showed that the draft board

4

12, ie Statement of Gibson case :

onder was void because the administrative agency had acted

contrary to the Act, the Regulations and the dus process

clause of the Fifth Amendment in ordering Gibson to re-

‘port for work of hational importance. Additional grounds

.

were urged. [15-19] The motion was denied, to which

exception was allowed. [20]

Gibson duly requested findings of fact and conclusions

of law urging the court to find that the administrative order

on which the indictment was based was illegal and void.

[78] These requests were overruled, to whieh exceptions

were allowed. [78] To the formal finding of guilty and writ-

ten findings of fact made by the trial court Gibson duly ob-

jected and excepted. [22-23] |

Specifications of Error °

Gibson relies upon every one of his assignments of

error duly filed in the trial court as grounds for reversal —

of the judgment of conviction.

{Points for JOINT ARGUMENT of Gibson

and Dadez cases appear at pages 28-29, infra.]

13

Statement of Dodez Case

Jurisdiction

The jurisdiction of this Court is conferred by Section

240 (a) of the Judicial Code, as amended by the Act of

February 13, 1925. See also Rules XI and XIII of the -

Criminal Appeals Rules promulgated by this Court on

May 7, 1934. The judgment of the Circuit Court of ayes

was entered March 18, 1946. [189] S ceaninmnmneigicotags

Petition fen writ of certiorari was granted on May 6,

1946. 66 S. Ct. 1017.

Opinion Below | bis

| ‘The opinion of the Circuit Court of Appeals appears

in the record. [189-200] It is reported at 154 F. 2d .637.

Statute and Regulations Involved

Sections 3 (a), 5 (d), 10 (a) and 11 of the Selective

Training and Service Act of 1940, as amended (50 U.S.

_ C., App. §§ 301-318) are drawn in question here, together

with Sections 601.5,. 622.44, 622.51, 623.1, 623.2; 623.21,

623.61, 625.1, 625.2, 626.1, 627.12, 627.24, 627.25, 629.1-629.35,

633.2, 633.21, 642.41, 642.42, 651.1-651.10, 652.1, 652.2, 652.11,

652.12, 652.13, 653.1, 653.2, 653.5, 653.11, 653.12, of the Selee-

__. tive Service Regulations (32 C. F, R. Supp., 601.5 et seq.), .

promulgated by the President under said Act.

’ Constitutional Provisions Involved

Clause 3 of Section 9 of Article } prohibiting enact-

ment of bills of attainder. Clauses 1 to 3 of Section 2 of

_ Article IIL investing the judicial nowers. The Fifth and

Sixth Amendments guaranteeing. the rights of defendants

in criminal prosecutions and securing due process ‘of law.

>

14 ‘Dodez case

Questions Presented

(1) Does. acceptance upon. preinduction physical ex-

amination of one classified as a conscientious objector con-

stitute completion of the selective process and. exhaustion

of administrative remedies so as to qualify Dodez to chal-

lenge the legality of the administrative action in defense

- to an indictment charging him with failure to report for

work of ‘national importance in a civilian public service

camp?

(2) Did the courts below err in holding that the ode

of Falbo v. United States (320 U.S. 549) applied and that

the rule of Estep v. United States (66 8. Ct. 3) did not

control?’ ec

(3) Did the trial court err. in refusing to allow Dodez

the right to show, and in refusing the jury the right to

consider that the order on which the indictment was based

is vVoia because Dodez is a minister of religion exempt from

all training and service for the reason that it was made

(a) in excess of authority of the boards, (b) beyond the

jurisdiction- of the boards, (c) contrary to law, (d) con-

trary to the undisputed evidence, (e) without support of

substantial evidence, (f) arbitrarily and capriciously,

(gz) contrary to the Constitution by depriving Dodez of

his rights and liberty without due process of law, and

(h) in violation of the Act and Regulations?

‘ (4) Did the trial err in holding that it and the jury

could not consider the illegal and unconstitutional action

. of the draft boards and in limiting the issue to be decided

to whether or not Dodez knowingly failed. to. — for .

work of national importance?

(5) Does the construction placed upon the Act and

Regulations by the courts below, requiring Dodez to ‘re-

port ata civilian public service camp for work of national

_ importance as a condition precedent to judicial review of

the illegality and unconstitutionality of the action of the

,o

~

Statement of Deodez case 15

Selective Service Sinise « violate Clause 3, Section 9 of

Article I, Article ITI, and the Fifth and Sixth: Amendments

to the United States Constitution?

(6) Did the trial court err in denying Dodez’ motion

_ to quash the indictment, motion for an instructed verdict

and for a judgment of acquittal, in excluding profferéd evi-

dence, in denying requests for charges and in charging the

jury, all of which pertained to the illegality of the adminis-

trative order? ,

Form and History of Action

. This criminal action was instituted by indictment re-

turned against Dodez charging him with violation of the

Selective Training and Service Act of 1940; as amended,

and the Regulations thereunder. [2-3]

The indictment charged that Dodez, a registrant classi-

fied as a conscientious objector, “did knowingly, willfully,

unlawfully and feloniously, fail ‘to perform such duty re-

quired of him; that is to say, that the said defendant, did

fail to report. for work of national importance as gine

by said’ Board”, [3] -

Thereafter Dodez pleaded “not guilty”. [3] He filed

- a motion to quash the indictment on the grounds that the

construction placed upon the criminal sanctions clause so

as to deny him his right to show, in defense to the indict-

ment, that the orders of the Selective Service ‘System

were void and illegal, violated the Constitution of the Unit-

ed States. [35] The motion to quash was overruled, after

argument. to the court, on December 7, 1944. [9] The trial to

a jury before the court began on December 7, 1944. [9] -

The. court excluded and received evidenve upon the trial.

The case closed when-all the evidence was in on Decem-

_ ber 7, 1944. [3, 67] At the close’ of the evidence, Dodez

moved for dismissal pf the indictment and for a judgment

of acquittal (6-8, 16, 65, 127-130] and for a directed verdict

of not guilty. (6-8, 16, 65, 127-130) In these motions the

\.

16 | — Statement of Dodez case

_ denied with exceptions to Dodez. [16, 65] Dodez duly. sub-

initted to the court, before argument of counsel to the jury,

his requested instruction to the jury. [66-101]

- On December 8, 1944, the cause was argued to the jury

by counsel. [60-104] Thereupon the court charged.the jury.

[104-108] The court refused all of Dodez’ requested charges

to the jury and allowed exceptions to his ruling. [109]

Dodez duly, objected and excepted to the court's charge.

[109-111] The jury retired te consider the verdict at

' 2:00 p.m. [12]. The jury rendered its verdict of guilty on

od

Décember 8, 1944, at 3:00 p.m.,[112, 127] On Detember 15,

1944, the United ‘States District Judge rendered! judgment

upon the verdict and sentenced Dodez, committing him to

‘the custody of the Attorney General for a period of five

years. {121, 130- 131]

Dodez duly served and. filed his written notice of ap-

_peal in the time and manner required ‘by law, [132] He

timely filed his assignments of error which support each

ground of this petition. [135-142] In due course the case

was argued and submitted to the United States Circuit

' Court of Appeals for the Sixth. Cireuit. The judgment of

conviction was affirmed by. that court on “March 18, 1946.

[189]

;

‘Facts wa)

Dodez registered pursuant to the Selettive Training |

‘and Service Act on June 30, 1942. [156] On September 21,

1942, he filed his. Selective Service Questionnaire. [146]

He showed his oceupation to be that of a duly ordained

minister of-religion since - January 1941. [17, 146- 148] In

- his questionnaire he assertéd: “In: view of the facts set

forth in this Questionnaire it is my opinion that my classi-

fication-should be 4D.” [15 148] He fited with’ ‘his question- _ roe

>.4

naire certificates of ordination showing, that he was recog- .—

reasons were stated extensively. [6-8] The motions were

td

Statement of Dodez case, acer *

nized by the Watchtower Society, the legal governing body

of Jehovah’s witnesses, as an ordained minister of the

gospel. [157-159] Affidavits were also filed showing that

Dodez’ full time was devoted to the regular performance

of his duties as a minister of religion and that he stood in

relation to|the congregation of Jehovah’s witnesses as do

the ministers of orthodox denominations. [159-165] On

November 25, 1942, the local board classified him in

Class I-A, sending him‘notice thereof on November 30,

1942. [150] Thereafter, on December 3, 1942, he requested

a personal appearance before the local board pursuant to.

the Regulations. [167-168] On December 7; 1942, he ap-

peared before the local board and- submitted a petition

signed by forty-four persons stating that they recognized

him as a minister of Jehovah's witnesses and the Watch-

tower Society and that he regularly preached and taught

the. principles of Jehovah’s witnesses. [168-169] At such

~ personal appearance the local board denied him a full hear-

ing but evidence of the denial was excluded from the record.

An offer of proof was made. [33-36] He was continued in

Class I-A on December 7, 1942, notice, théreof being mailed

jto him on December 8, 1942. [150] Dodez thereafter re-

“quested a rehearing for the opportunity to present addi-

tional evidence. This proof was rejected by the court [36-37] _

_ He appealed to the board of appeal on December 17,

1942. [149]-In his notice of appeal he compJuined of the

failure of the local board to give him a full and fair hear-

ing. He also complained of the refusal of the local board to

_ grant him a rehearing in order to enable him to offer

’ additional evidence. [170] ° Hg accused the local board of

- being prejudiced, unfair and capricious. [171] Pending the

determination of his appeal, he, notified the Jocal board:

that he had been appointed as the presiding minister of |

the congregation of Jehovah’ 8 witnesses at Wooster, Ohio.

172 -173]

637nrrr

18 a | Statement of Dodez cases

On June ii, 1943, he was: notified that the board of ap-

peal had reclassified him to Class IV-K, M50]: which made

him liable to do work of ‘national importance’ ina civilian

thlie service camp. Thereafter he attempted to have his

reopened. In .dealing ‘with the Government Appeal

“Agent and members of the local board, there were state- | *

@:

' However, evidence as to this wag excluded by the court.

It is shown in an offer of proof -44] ; :

ae Additional evidence,was submitted and réquest again-

cae made to have his classification reopened in Ja.uary 1944.

‘Such-evidence consisted of an affidavit and petition stating

‘that Dodez regularly and customarily served as and per-

formed the duties of a duly ordained minister and presid-

ing minister over the congregation of Jehovah’s witnesses,,

teaching and preaching the beliefs of Jehovah's witnesses, ?

and certifying that he was authorized to perform marriages, »

_- ;- \baptism, funeral and other ceremonies generally performed

. \by ordained ministers. [174} The signers of the petition

alleged that it would a a hardship to*them if peti-

_ tiorier was taken away frofn the congregation. [174- 176]

With this was submitted a certificate issued May 18, 1943,

‘by the State of Ohio, licensing Dodeéz to solemnize mar-

a he “4 fiakes within the State of Ohio as long as he continued as .

fi a a iminister of,the Watchtower Society. [176] This additional

proof was accompanied by a letter to the loeal board. [179-

19°) The local board declined to reopen his classification.

Qa February 10, 1944, Dodez was mailed an Order to

_ Report Preinduction Physical. Examination Alirecti~.: him -

to appear at “the local board located at 243 West Market

aa Street? Orrville, Ohio, ' on February 21, 1944. [182-183] He —

appeared as directed and was thereafter given preinduc-

tion physical examination at the. induction station on

February. 21, 1944. [150, 184-186) Certificate of «Fitness.

was thereafter sent to Dodez on February 28 1944. [ 150,

184-185] It certified that Dodez, after having been examined

ments made about prejudice on real of the local board.

[

7

7s

ive Record. [185-1

fy

;

|

d

Ny

Statement of Dodez case 19

a é.

upon a preinduction physical examination, had been de-

clared “Phy sically fit, acceptable by Army for general mili-

tary_ service”. [51-52, 184-194] The report of Physica]

Examination, dated Fenreary 21, 1944, appears | in the

On-April 8, 1944, edez. was ‘ordered to report for ©

work of national importance.

.. ¢ifed that he had been assigned to-C. P>S~Camp No. 28, at

Medaryville, Indiana. It commanded him to appear-at his

local board at 5 a.m. on April 21, 1944. [150, 155] On-~.

April 19, 1944, Dodez, by letter, acknowledged receipt of .

the Order to Report for Work of National Importance. .

[186-187] He reviewed the illegality of the action of the

administrative agency and, for the reasons stated in his

letter, deciared that he would not report because he could

not turn. aside from and quit his preaching occupation

that Ke was bound to perform in accordance with the

covenant made with Almighty God. [186-187] Dodez failed

to report at.the local board, as commanded, to do work

of national importance. [14-15, 150]

¥ » , » ;

How Issues Raised .

By.motion to quash the indictment Dodez claimed that

the administrative. process had. been sufficiently completed

so aS to permit him to-challenge the legality of the classi-

fication and orders based on. [35] He asserted that if

the Act and Regulations’ were so construed as to deny him

these defenses, they were unconstitutional because a Bill

of Attainder, contrary to Clause 3, Section 9 of Article I

‘of the United States Constitution ; because they surrendered

the judicial power to the draft boards contrary to Article III

‘of the Constitution; because they denied the right’ to a

judicial trial contrary to the due process clause of the. Fifth

Amendment to the United States Constitution, because they

deprived him of his right of trial by jury contrary to the

a Statement of Dodez case

Sixth Amendment to the United States Constitution. [35]

The trial court overruled the motion to quash with exegp-

tion to Dodez. [9; 10] -

The trial court erroneously excluded from evidence,

over the objection of Dodez, his own testimony offered.

de novo to show, his activity as an ordained minister. This

testimony was offered for the purpose of showing that

Dodez was exempt from all training and service ‘under

the Selective Training and Service Act. [30-32] .

The trial court erroneously excluded from evidence,

, over the objection of Dodez, testimony tending to show

prejudice and discrimination by the local board against

him, and evidence tending to show that the members of

the local board had denied him a full and-fair hearing be-

fore that board. (33-35, 36-44]

_ The trial court erroneously excluded from evidence,

over the objection of Dodez, testimony offered de novo

by him to establish his background and training for the

ministry. [50-51]

At the close of the evidence Dodez moved for a dis-

misgal of the indictment [127-128] and for a directed verdict

{128-130} on the grounds that the undisputed evidence

showed that the draft. board order was void because the

board acted in excess of its authority in that Dodez was

a minister of religion exempt from all training and service

and was not liable for training and service under the Act;

that he had exhausted his administrative remedies and was

in a position to challenge the action of the administrative

agency and the orders on which the indictment was based;

that the board had-denied him -his rights of procedural

due process by rejecting the evidence and that the court

had construed the Act and Regulations so as to require him

to report for work of national importance at a CPS camp

as a condition precedent to a judicial review, which denies

him the right of a judicial trial contrary to the Constitution

|

Statement of Dodez pase ae |

oe

with exception to Dodez. [65]

Dodez duty tendered to the court requested charges

to the jury. [67-100] The requested charges: defined what

constituted a regular.or duly ordained minister of religion,

stated the duties of draft boards -in considering the minis- .

. terial status of Jehovah's witnesses under the-Act afid Reg-

ulations as declared by the Director of Selective Service

in Opinion No. 14. The court was requested to charge the

jury that if they concluded and foynd that the undisputed

evidence before the draft boatds showed that Dodez was

a minister of religion and of Jehovah's witnesses and. there

was no substantial evidence that he was not such a min- .

ipter as claimed, that they could acquit:him, by their verdict _

saying he was not guilty. The court was requested to charge

the jury that if they found that the boards acted, in excess |

of authority, without jurisdiction, eontrary to law, without

verdict of not guilty. [67-100] These requests were each

refused separately and exception allowed to each refusal. $»

(66-67, 109)

The court instructed the jury that the only issue to,”

be determined was whether or not Dodez reported for work*

of national importance, and if the evidence showed that’

Dodez failed to so report, it would be the duty of the jury

to find him guilty. [104-108] Dodez objected and excepted”

to the court’s charge on the grounds that he was thereby

__slenied the Tight to urge in defense to the indictment that

he was exempt from training and service as a minister of

religion; that the court instructed the jury to convict him;

that the instruction of the court denied him his right to a

judicial trial and a trial by jury, and abridged his rights

and liberty contrary to the due process clause of, the Fifth

Amendment to the United States Constitution. [109-111]

- of the United States. [127-130] Each sane was denied _

- support of substantial evidence, contrary to the undisputed | |

evidence, contrary to the Constitrition, the Act and Regula- °°

tions and arbitrarily or capriciously, they could render a .

q

ee ‘Statement of Dodez case cng

- Throughoit the trial, from beginning to end, the court

held that the actions of the draft boards were binding upon

Dodez, the court and the jury, and that Dodez could not

challenge the same on any ground, or that his failure to

report for work of national importance was not a willful

violation of the Act. + -

Spesifiention of irers ’

Dodez relies upon every one of his: cncinianailie of --

‘ error as grounds for a reversal of the conviction. [135-142]

Summary. of Joint Argument

Petitioners were classified as conscientious objectors

making them liable for training and service in civilian pub-

lic service camps. Each was ordered to report at an army

ifduction station for the preinduction physical examina-— ;

tion to determine his acceptability prior to assignment to -

a civilian public service camp. Each was found physically

‘fit and acceptable for training and service.

The acceptance for training and sétvice constituted a -

. completion of the selective process. At this point each peti-

tioner had exhausted the. administrative remedies. suffi-

_ciently to entitle him to challenge the illegality of the ad-

ministrative action in denying the claim for exemption as

*. ayninister of religion. This proposition is conceded by the

Government. This concession makes applicable the rule of

Estep v. United States, 66 S. Ct. 423, requiring a reversal

of the judgment in the Dodez-case.

Under the circumstance of the Government's conces-

sion (the jdentical position taken by Nick Falbo upon oral

argument in this Court which was emphatically urged in

his Second Petition for Rehearing) and since. the terms of

; the Regulations i involved m the Dodez case are substantially.

the same as ‘the terms of the Regulations as they existed

\

Summary of Joint Argument ; pte

at the time Falbo was ordered to report for work of na-

tional importance, the Dodez case presents to this Court

AGAIN the necessity of reconsidering this Court's decision

in Falbo v. United States, 320 U.S. 549? The facts and Reg-

lations in the Dodez case require the Court to reverse the

position taken in Falbo v. Uni States, supra. Petitioners

now urge upon the Court to reconsider and declare to be

erroneous the decision reached in Falbo v. Umtton States,

supra. ti,

~The Court inadvertently niisaporehonded the Selective

Service Regulations in reaching the devision that it reached.

in the Falbo case when it held that the selective process

was not: completed until the assignee reported at the civil-

ian public service camp for a physical examination where

. he might be rejected. The Regulations nowhere provided for

the physical examination of all registrants reporting at

the civilian public service camp. Moreover, the Regulations

at that time provided for a final-type physical examination

at’ the army induction station, which is identical with.

the preinduction physical examination given registrants

classified as conscientious objectors at army induction sta-

tions under the present Regulations.

If as is conceded, acceptance upon the preinduction

physical examination terminates the selective process and ° '

constitutes an exhaustion of the administrative remedies

under the present Regulations, then by force of the same

reason the identical final-type physical examination of the

same class of registrants under the Regulations as they .

existed at the time Falbo was. ordered to report for work

of national importance should be:held to constitute the ex-

- haustion of administrative Eumetios.

The obviows misapprehension ’ of the Regulations by

the Court in the Falbo ‘case was due to the equivocation of

the Govetmment and its presentation, as to when the ad-

ininistrative remedies were exhausted, in misleading light

we

al

”

24 _ Summary of Joint Argument

z

; ae :

upon the oral argument of that case and in its brief. The

° vigorous argument made by the Government’s counsel in

his brief and upon oral argument that it was necessary to

submit to induction and apply for a writ of habeas corpus,

as the only remedy, was a mere decoy whereby the Court

was lured into the position it got into in the Falbo decision,

which was a “trap” for.the Court as well’ as for Falbo.’

Moreover, in its brief it was stated, “the camp physician

shall examine -him and he may thereupon be rejected, in

which event the local board must classify him IV-F

(Reg. 653.11). Thus, as of October 15, 1943, of the 8,000

+egistrants-who had reported at such camps, 610, or ap-

proximately 7 percent, were rejected.” (Brief for the United

States, Falbo v. United States, No. 73 October. Term 1943,

p. 56)? |

- The Government argues that Gibson went too’far when

he reported at the civilian public service camp for the pur-

pose of exhausting his administrative remedies. Gibson was

fullowing the advice of this Court which was implicit. in

the Court’s opinion in the Falbo case. Since the Regulations

in the Falbo case were about the samé as they were at the

time Gibson was ordered to report for work of national

importance, Gibson could reasonably conclude that the doc-

trine of the Falbo case required him to report at the civil-

1 It is ‘too late to, extricate Falbo from the trap; but, it is not too

late tor the Court to get out of the trap by correcting ite erroneous

decision. See Prtitioner’s Petition for Rehearing, Falbo v. United States,

No, 73 October Term, 1943, p. 2, 84-85. It is never too late to be right. |

2It should be obse, that the Regulation referred to does not even.

provide for rejection of assignee-registrants whatever. That Regulation pro-

vides for an exatination of only those registrants who indicated a change

in physical condition: ‘‘/f the assignee indicates that his physical condition

has changed since his final-type 5 ical examination for registrants in

Class IV-E, the camp physician shall examine him sith reference thereto. If

the assignee is nut accepted for work }pf national importance, the camp di- .

revtor will indicate the reason therefor, And the assignee, pending instructions |

from the Director of Selective Service;|will be retained in the camp or hos-

“ witalized where necessary.’’ (Emphasis added) Reg. 653.11 (¢); Brief ‘for

the United States, Faibo v. United States, No. 73 October Term 1943, pp. 113-

114. :

’

gs

‘\ Summary of Joint Argument | 2%.

o

~ jan publie service camp to undergo the phy sical examina-

tion.

While there hive been: some slight intunain in Sec-.

tion 653.11 of the Regulations, they are not material in

determining whether Gibson waived his right to challenge

the legality of the administrative action by going further

than reporting for preinduction physical examination. He

did not-intelligently and knowingly waive his rights. In

good faith he attempted to pursue his remedies to the end.

His going to the point of undergoing a physical examina- |

tion fc‘lowing his acceptance by the civilian public service

camp neveruneless still did not confer jurisdiction upon the

local board that exceeded its authority i in ordering him to

report for work of national importance, because the undis- .

puted evidence showed that he was exempt by statute from

all training and service. The local-board did not have juris-

diction. The’ civilian public service camp could not assume

' jurisdiction. — 5

,Gibson’s leaving the camp after undergoing’ the phys-

ical examination by the camp physician did not constitute _

a separate and distinct offense under the Act which allows

. no challenge of the ‘want of jurisdiction of the administra-

tive agency ov@s him. If she could challenge the jurisdic-

tion of the agency at the time he exhausted his administra-

tive remedies when tbe was accepted on the preinduction

physical examination, or if he could challenge the jurisdic- “ue

tion of the agency by applying for writ of habeas corpus,

after remaining at the camp as ordered, then by force of the

‘same reason, he should be able to challenge the want of

jurisdiction of the agency in defense to the indictment

charging him with violating the Act by failing to remain at _

the camp ufter being cadersd ¢ to feport by the administra-

tive agency.

By leaving the civilian eubils « service camp, Gibson i in

“no way waived any of his rights to challenge the want of

yy)

j

/

/

f

vA

26 b# Summary of Joint Argument

jurisdiction on. the part t of the administrative agency (1)

that classified him, (2) that ordered him to report at the

- said camp, (3) that areas the said camp and (4) That

commanded him to remain a(t he said camp. At alt nee

from the time of his registration to the time of his depar-

~

ture f rom the civilian public service camp—he was under

/

“the direction and ‘control of the Selective Service das

which operated the camp.

“In event that this Court should hold that Gibson went ~*~”

too far and that he waived his rights thereby, then the Court

should declare that he was entitled to assert his honest

good-faith belief that he was exempt as a minister of reli-

‘ gion in.defense to the indictment, and hold that the trial

court erred in exeluding the evidence offered by Gibson on

that issue and in refusing his request for finding of fact —

presenting the issue as a defense against the indictment.

[Points for. JOINT ARGUMENT of ‘Gibson

and Dodez cases appear at pages 28-29, infra.)

| Points for Joint Argument

| | ONE |

Petitioners’ acceptance because of physical and

mental fitness upon a preinduction physical exam-

ination terminated the selective precess and ex-

hausted Aheir administrative remedies before the

orders fo report for work of national importance

were issued entitling them to show in response to

the indictments that the draft boards exceeded

their; jurisdiction in denying their claims for: ex-

| emption from training and service as ministers of

—

a ‘ | TWO

ji Gibson’s reporting at the civilian public service -

camp as -ordered-and leaving it immediately after.

acceptance’ and physical examination ‘did not con-

stitute a waiver of his right to challenge the _juris-

- diction of the Selective Service System in his: de-

. fenue against the indictment. :

THREE,

The construction placed upon the Act and Reg-

— ulations by the courts below denies petitioners

their right to challenge the jurisdiction of the draft

boards and the legality of the orders supporting

_the authority of the civilian public service camps in —

violation of due process of law, contrary to the -

Fifth Amendment to the United States Constitution, _

and denies them a judicial trial contrary to Clause 3,°"

Section 9 of Article I, and / rticle II of the United

States Constitution..

28

3:

*/¢

Points for Joint At ousiont o .

FOUR

’ The holdings of the courts below that petition-

ers could not challenge the jurisdiction of the draft

boards in their trials because they had not resorted

to the remedy of habeas corpus, were fundamental

errors requiring reversal of convictions. —

FIVE |

The trial court committed soversthlé error ‘in

excluding the sees uffered by Gibson, and in re->

; fusing the reqitested finding of fact and conclusion

of law tendering the issue: of Gibson’s good faith

and honest belief that he was exempt from —

and service and that the civilian public service camp

direetor had no jurisdiction to command him to .

remain at the camp.

JOINT ARGUMENT .

| -ONE | i

- Petitioners’ acceptance because of physical and.

mental fitness upon a preinduction physical exa

ination terminated ‘the selective process and_ ‘ed.

_hausted their administrative remedies before the

-- orders to report for work of national importance

‘were issued entitling them to show in response to

‘the indictments that the draft boards exceeded

» their jurisdiction in denying their claims for. ex-

-. emption from training and service as inisters of

religion. Seabees

~ The Selective Training and Service Act of 1940. (§3a) ©

in part provides: “ ; . : no man § shall be inducted . . . \untii

he is acceptable to the land or naval forces. . . and, his

. phyeical and mental fitness for such training and service

bas been satisfactorily determined.” (Italics added). The

administrative process, beginning “with registration with

the local boards” ends “when the registrant is accepted by

the Army, Navy or civilian public service. — ” Falbo

'v. United States, 320 U. S. 549.

Section 629.1 of the Regulations provides that every

registrant must be given a preinduction | physical examina-

tion, which is. a final- type. physical examination for regis-

trants. classified as. conscientious objectors (Reg... 651.1- -

651. 8). ‘If the conscientious objector is feund physically fit,

he is then assigned by the National Director of Selective

Service to’ a designated civilian public service camp (Reg.

651.10, 652.1, 652. 2). Pursuant to such assignment, the local -

- hoard issues the order to- report for work of national im-

portanes. After the conscientious objector has been given i

a preinduction physical examination and has been assigned .

—

va

s

! / . 2 ao

Jott Argument: ibe | oe

to, a ithe camp we the National Director, the local

hoard then orflers him to report at the board for trans-

portation to the civilian public service.camp to which he

“is “assigned (Reg. 652.11).. The Regulations provide that.

after arrival at the camp the registrant shall be. examined

‘to ascertain whether there ‘has been a change in his phys-

ical or mental condition. But irrespective of the result of

the physical examination he is accepted by the camp for

work of national. importance (Reg. 653.11). He cannot be

rejected at the camp. If a change in his eondition i is found, .

he is hospitalized. The Regulations provide that the accept-

ance shall be noted after the physical examination. The |

- camp director is required to place on the form a statement ;

that the registrant is accepted for work .of national im-

portance at the civilian public service camp to which the

- registrant has been assigned. The statement sliall specify

- the date and place of such acceptance and shall. be fighed

by the camp director (Reg: 653.11).

Acceptance of one classified as a conscientious ‘ohjeator

_. upon a preinduction physical examination ends the selec-

tive process, kefore the ‘order to report for work of na- :

eshte’

. tional importance issnes..For such work each petitioner

was ordered to report. Each -had been accepted upon

the preinduction physical examination which terminated

_, the selective process and exhausted the administrative rem- -

edies before he was ordered to report for work of national

' importance,

In Billings v. Truesdéll, 321 U.S: 542, by a constraction

of the Regulations and the Act, it, was ruled that at this

point in the proceedings a registrant, when found physically

_ and mentally fit, was to be deeméd “acceptable” and is

“accepted”. The very next step, induction, or submission

to work of national importance, was not and is not a part

of the selective process, Ummistakably, the court pointed

out in the Billings decision, that the Falbo decision was not

to be construed as s holding that a man must submit to in-

OR om nae

Gay eat re, Joint Argument: ONE >

duction before he could be said to have exhausted his ad-

ministrative remedies, but that the selective process. ended

when he was accepted and that thereafter he could reft use to

submit to induction: —.

“But we. can hardly say that he must report i: the

‘military in order to exhaust his administrative remedies

and then say that if he does so report he may be forcibly

inducted against his will. That would indeed make a trap.

of the Falbo case by subjecting those who reported for

completion of the Selective Process to more severe penal- —

ties than those who stayed away in defiance of the oe

order to report.”

The foregoing quoted portion of the Billings at

is a forcible demonstration of the misapprehension by the

courts below of the Regulations governing petitioners’ ac-

ceptance aud assignment to civilian public service camp.

“The court of appeals in the Dodez ease said that “after, re-

viewing Estep and Smith eases in detail and noting that.no-

attempt is made therein fo reverse Falbo v. United States

(supra), we conclude that the Falbo and not the Estep ahd

Smith decisions apply here. We believe the cases are iden

tical since neither Falbo nor Dodez had exhausted his ad-\,

ministrative remedies by reporting for induction. In the

case at bar had draftee so reported and then refused to be

-- inducted, the Estep and Smith decisions would have been

edntrolling.” (Emphasis added) [193-194] 2

\

It should be observed that it was impossilile for peti-—

tioners to he-inducted at the civilian public service camp.

Indeed, there is no induction.ceremony at the camp. There

is‘no line drawn in the Regulations whereby a point is

fixed permitting the registrant to choose between induc-

tion and refusal to be inducted with prosecution under the

Act, as in the case of registrants ordered to do training

and service in the armed forces. In fhe case of registrants

classified as conscientious objectors, the: Regulations pro- .

vide that the registrant is under the jurisdiction of the

| \

: Joint Argument: ONE ¥ 33

camp to which he is assigned after leaving the local board

‘where he has reported in pursuance to the order command- |

‘ing him to do work of national importance.-(Reg. 652.13)

It is manifest that the courts below confusedthe distinction —

between the well defined procedure of registrants ordered.

to do work of national importance and registrants ordered

to do training and service in the armed forces. The fact

that one classified in I-A may be said not to exhaust his

remedies until he has undergone the fina physical examina-

tion at the induction station given by the armed forces upon -

his reporting pursuant to an order to report for induetion,

cannot be taken as a guide for determination that a regis-

trant classified in IV-E has not exhausted nis remedies.

until he has reported at the civilian public service camp.

Since it is impossible for a registrant to be rejeeted at the |

civilian publie service camp, and inasmuch as there is no .

physical examination given at said camp for the purpose |

of determining the acceptability of the registrant, it is

unnecessary for one classified as a conscientious objector

to report to the local board or to the CPS camp in response

to am.order to report for' work of national importance in —

order to exhaust his administrative remedies. Indeed the

remedies have been exhausted upon the taking of the pre-

induction physical examination long before the order to

report for work of national importance is issued.

When each petitioner was found physically fit and ac- -

ceptable for general military service upon his preinduction

physical examination at the induction station he was ac- —

ceptable for work of national importance under civilian -

direction. This acceptance was before-the orders to report

to the camp had issued. Each had been officially and finally |

accepted, as indicated by the subsequent notice to report

to camp, sent by the Director of Selective Service wio is \

in charge of the CPS camps. (Reg. 653) Thus each peti-

tioner exhausted his administrative remedies and, under

\

FS, Ae . i Joint Argument: ONE

the rules’ set forth in the Falbo opinion itself as amended ©

and clarified by the Billings opinion, he was then in a posi-

tion to urge the illegality of his classification as a defense

- against the indictment.

In the Billings opinion (supra) it was said that the

fact that one may have been ‘accepted several weeks before

he was ordered to report for induction would not alter the

cease. The fact that each petitioner may have been accepted.

several weeks before he was ordered to report for work of:

national importance did not change the fact that he was

actually accepted for work of. national importarice in a

CPS camp. The final irrepéalable order of General Hershey

assigning him to do work of national importance had been

theretofore issued. In Billings v. Truesdell, supra, it is said:

“It is difficult to see why there would be a difference in re-

sult if the interval between the time when he is found ac-—

ceptable or is accepted and the ceremony of induction| were

_. only a few minutes, as in the present case, rather than a

few weeks.” It is only administrative remedies that one is

required to exhaust in order to qualify himself fer judicial -.

‘review.

_ No administrative remedy was s available to peisodies

upon reporting ‘to the camps. Dodez could not have been

discharged af the camp. His accéptance on reporting at the

camp, kad he reported, would have been mandatory. This

is demonstrated in the case of Gibson. Gibson reported at

the camn, was accepted at the camp when the camp director. |

completed the “Order to Report for Work of National Im-

portance” and: the “Report of Physical Examination-and

J nduction”.* *. The fact that Gibson was commanded ‘to re-

°

‘° * The ‘parties hereto hens stipulated that Gibson was accepted at’ the camp

on August.23, 1944, when lie reported there. The stipulation has been filed

'. With the Clerk of this Court. This should make unnecessary a discussion. of -

this question upon the oral argument, which the Court indicated in its order

that it desired discussed by counsel om reargument. ~

- Joint Argument: ONE 86

main at the camp sii that he had: no remédies available me

to him at the camp. epee

Section 652.13 of the Regulations provides thet the

registrant is under the jurisdiction of the camp after leav-

ing his board, following his. reporting at the board to be

_ transported to the camp. Section 653.11 (a) requires the -

director, on arrival of the registrant at the camp, to fill out

the order to report for work of national importance. Sec-

tion 653.11 (¢) of the Regulations declares that acceptance |

at the camp is completed by filling out the order to report.

Section 653.11 (b) provides for a cursory physical examina-

tion, but inasmuch as Section 653.11 (c) provides that ac-

ceptance shall be made irrespective of the physical exami-

nation, aap impossible: for a registrant to be rejected. at

the camp. \’

| .It cout be a bastion formalism to hold that. it was

‘necessary for petitioners to ‘report for work of national im-

portance and to appear at the camps for the mere purpose |.

of having the camp directors fill ont forms showing that

they had been accepted, when they had been previously ac-

‘cepted upon the preinduction physical examination which

-exhausted the administrative remedies, and when there was

no possibility for petitianers to get any relief by being re-

jected. Indeed, Section 653.12 of the Regulations makes it

a mandatory duty for a registrant to. remain at the camp 3

after reporting there. : aes,

In view of the position which i is here taken as to when

the administrative remedies are exhausted, in which the ~

Government concurs, it is highly necessary to call upon

this Court to reconsider ard overrule its decision in Falbo

v. United States, 320 U.S. 549. If Dodez and Gibson had

completed the selective process when they were accepted -

upon the preinduction physical exemination so as to ‘ex-

haust the administrative remedies, then Falbo had also

completed the selective process and had exhausted his

administrative remedies when he was accepted by the armed

36 , Joint Argument : ONE

forces upon his final-type (preinduction) physical examina-

tion. The Regulations. with respect to acceptance and as-

‘ signment to a civilian public service camp, following a pre-

’ induction physical examination, are identical with the Reg-

ulations about acceptance and assignment following the

final-type physical examination that were considered in the

Falbo case. If the administrative remedies have been ex- ~

hausted in the Dodez and Gibson cases, they were also ex-

-hausted in the Falbo case. If. Dodez and Gibson are entitled

to challenge the jurisdiction of the administrative ageney,

then Falbo was qualified to challenge the jurisdiction of the

administrative agency in response to the indictment un-

der which he was convicted i in his case.

t the time Falbo was ordered to Teport for work of

niiiened importance, Section 651.2 of the Regulations pro-

vided for the issuance of an‘Order to Report for Final-type

Physical Examination to registrants classified in Class—

IV-E. Section 629.2 (c) of the Regulations now provides

that a IV-E registrant shall be ordered “to report for pre-.

- induction physical examination under the Provisions of

paragraph (b) of this section.” :

The Regulations at the time Falbo was ordered to re-

port provided for registrants placed in Class IV-E to re-

port to the army induction station for a final-type physical

examination, “along with the selected men who are being

delivered to the induction station”. Reg. 651.7 (b). Section

629.21 of ‘the present’ Regulations provides that “When |

the local board mails to a registrant an Order to Report

—Preinduction Physical Examination (Form 215), it shall

be the duty of the registrant to report for such examina-

tion at the time and placed fixed in such order”.

‘The Regulations at the time Falbo was ordered to re-_

port provided for a final-type physical examination at the

induction station identical with the present preinduction

physical examination. {Reg. 651.8)-The present preinduc-

?

~_ —" —_— |. ._ i—_— —_ ar» - a wan,

aa A tte ooh oc at ff 2 FH aot aot as a.

¢

Joint Argument: ONE Ae

tion physical examination provided for in the Regulations .

is in every respect the same as the final-type physical

examination given to Falbo. (Reg. 629.2)

After a registrant Classified IV-E was given the final-

type physical examination at the time Falbo was ordered

to report, a Report of Physieal Examination and Induction

was returned to the local board by the induction station

commander, which showed that the registrant was quali-

fied or disqualified for service. - (Reg. 651.9) Under the

present Regulations after each IV-E registrant has under-

- gone the preinduction physical examination, the command-

ing officer returns to the local board the Report of Physical

Examination and Induction showing whether or not the

registrant is physically or mentally acceptable for training

and service. { Reg. 629.21)

At the. time Falbo was ordered to report, the Regula-

tions provided that “When a registrant in Class IV-E has .

been found to be acceptable for work of ;national impor-

tance” upon. the final-type physical exausination, the local

board was required to notify the Dire, tor of Selective

Service that the registrant was “so accep Able” and “avail-

able for assignment to work of national importance under

civilian direction.” (Reg. 652.1 (a)) The Regulations at

the present time provide that after the IV-E registrant has

been accepted upon the preinduction physical examination

the local board shall notify the Director of Selective Serv-

ice that “the registrant is available for assignment to work

of natiOnal importance under civilian direction.” Reg.

652.1(a).

The Regulations at the time Falbo was ordered to re-

port, with respect to assignment of a registrant classified

_IV-E to do work of national importance in a civilian public

service camp designated by the Director of Selective Serv-

ice, are identically the same in every respect with the pres-

ent Regulations.

| - ae i.

38 \. Josnt Argum t: ONE ees

At the time Falbo ping to report, the Rerhié:

tions with respect tothe preparation and mailing of the

Order. to Report for Work of National Importance are sub-

stantially thesamée as the present Regunoms on that sub- »

-ject. (Reg. 652.11) - :

~~ Sinee taking of the preinduction physical examination

now terminates the selective process of IV-E registrants,

it must be conceded that the taking of the final- type phys-

ical examination by Falbo—which is identical to the pre-.

induction physical examination—exhausted his administra- —

tivé remedies and he was also in a position to chatienge the

administrative order as a defense in response to the in-

’ dictment. There was no other remedy available which can

be corsidered an administrative remedy for the purpose of

complying with the doctrine of exhanstion of administrative

remedies. Such further step of reporting needed not be

complied with by hin as:a condition precedent to judicial

review. Utley v. St. Petersburg, 292 U.S. 106; Kansas City

S. Ry. v. Ogden Levee. Dist. (CCA-8) 15 F. 2d 637. See

- also Gonzales v. Williams, 192 U.S. 1, 15, where, with

reference to an argument about exhausting administrative

remedies, the court said: “She was not obliged to resort

.to the superintendent or the secretary.”

_ The Government argues that when Gibson and Dodez

were ordered to report the reception of a conscientious -ob-

jector at the civilian public service camp differed from that

which prevailed at the time that Falbo was ordered to re-

_ port. The Government says that at such time it was possible

for a registrant to be rejected upon an examination at the

-eamp. As a basis for this contention, rather than citing or

quoting the Regulations as they existed at.the time Falbo

was ordered to report, the Government relies upon a por-

tion of the language of this Court’s opinion in Falbo v.

United States, supra, which was the ‘result of the Govern-

ment’s unfair presentation of the law in that case, The

language is: “The selectee may still be rejected at the in-

x)

o

condition of every selectee warrantin

’

_ Joint Argument: ONE — ate

duction center and the conscientious objector who is op:

posed to noncombatant duty may be rejected at the civilian

public service camp.” {Emphasis added) 320 U.S. at p. 553.-

The Reguiations ‘at the time Falbo was ordered to re-

po 4or work of national importance did not provide for

: i the rejection. of an assignee found to be physically fit. The

Regulations provided that “Jf the assignee indicates that.

- his physical condition has changed since his final- type

physical examination for registrants in Class IV-E, the

camp physician shall examine him with reference thereto.

If the assignee is not accepted for work of national itn

portance, the camp director, will indicate the reason there-

for, and ‘the assignee, pending instructions from the Di-.

_ rector of Selective Service, will be retained in the camp or

_ hospitalized where necessary.” (Emphasis added) Reg.

653.11 (ec); Brief for the United States, Falbo v. United

States, No. 73 October Term 1943, pp. 113-114.

It is manifést that the Court, in the Falbo case, mis-

apprehended the effect of this ‘Regulation. To begin with,

the examination provided for in the Regulation on its face

‘is contingent upon a change in the physical condition. Un-

less the registrant-indicated that there had-been a.change -

in hig physica! examination since. the final-type physical

examination, there was no opportunity for the camp physi-

cian to examine him, because his acceptability had been pre-

determined upon the final-type examination: (Reg. 653.11

(e)) Therefore when this Court held that it was possible

for the conscientious objector to be rejected at the civilian

public service camp as an administrative remedy it vio-

lently assumed that there ‘would be a dhange in the physical

Jencthes examination.

Certainly Ahe exhaustion of administrative remedies

| does not depehd upon the vagaries.of a man’s phy sical con-.

dition. Once a condition is2proven, it is presumed to con-

_ tinue to e ist. Of course, a registrant could be struck by

lightning, develop galloping tuberculosis or have an acci-

e \-/ aL

|

st

\

40 * Joint Argument: ONE Seige

dent and otherwise become unfit for service from the time

he was accepted upon the final-type examination until the

time he reported at the camp. ‘But certainly the uncertain

right.to a physical examination in any one of such vague: °

and indefinite contingencies cannot be urged or asserted

as constitutisg an administrative remedy. Therefore, when

this. Court held that there was an opportunity for every

assignee to be re-examined at the sony as.an administra: _

tive remedy it erred.

: Regulation 653.11 (ce). provided that, upon suet phys-

.. ical examination, which was given only in the event the

registrant indicated a change in his physical condition,

the assignee thus reporting physical defects may not be

accepted for work of national importanee. (Reg. 653.11 (¢))

However, that Reguiation specifically failed to provide for

a rejection of the assignee from camp. The Regulation

specifically provided that “the assignee, pending instruc-

tions from the Director of Selective Service, will be re-

tained in the camp or hospitalized, where necessary.”

(Reg. 653.11 (c¢)) re

The provision in the ‘Giosinticns:. at the time that

Falbo was ordered to report, for the right to have a phys-:

‘ical examination upon reporting at the camp, in the event

only thai the registrant indicated a change in his physical |

condition, certainly cannot be said to constitute an adminis-

trative remedy available to every registrant ordered to re- |

port for work of national impo?tance. If so, then the Court

would have to impute that every registrant classified ‘in

IV-K probably would have a “break-down” in his physical

condition from the time he was given the final-type physical |

examination to the date he reported at the camp, though

it might be a peri@i of only a_matter of days or weeks.

The administrative remedy provided dn the Regula-

tions for the examination of only registrants who, upon re- —

_ porting at the camp, indicated a change in physical condi-

1%

— a ALG ve te ee ee ee

: Joint Argument: ONE — cee |

‘tion, is. nothing more than a provision (similar to the famil-

iay rule in administrative law) for a motion for rehearing.

where there has been a change in the circumstances or facts

after the date of the original administrative decision. In

- .other words, the provision for an examination at the camp.

was nothing more than an optional “rehegging” or optional

“reexamination” because of the change in the physical con-

dition subsequent to the final-type examination.

This Court-has unanimously held that where there is

an optional rehearing available to a party in administrative

law, it is not necessary for him to resort to exercise of his

option of filing a motion for rehearing as a condition to

_ judicial review of an administrative determination. Levers |

v. Anderson, 326 U.S. 219.

The argument of the Government that there is. a dif-

ference between-the Regulations with. respect to the pro-

cedure upon acceptance.at the civilian, public service camps

when Falbo-was erdéred to report and when Gibson, and

- Dodez were ordered te report is specious and wholly im-

material because the difference in the Regulations i is con-

fined only to assignees who showed a change in physical

condition from the date of the final-type examination to

the date they reported at the camp. There are no differences

in reference to examination of those who did not indicate

a change of physical condition -xtthe:time Falbo was or-

dered to feport there was no general provision in the Reg-

ulations whereby évery assignee was given a compl¢te

final- type reexamination. At the present time there is no.

provision in the Regulations for such .reexamination*for . ;

every assignee. The elimination of that portion of the Regu-

lations allowing assignees who indicated a change i in phys-

ical condition to require reexamination at the camp is

w holly immaterial.

The Regulation in. respect to reception of efery as-

| signee who did not indicate a change in physical condition

’, ‘the Regulations as they exist now, as they existed at the

42 | ; 7 Joint Argument: ONE — y)

‘is’ identically, the same now ie it was at the time Falbo |

was ordered to report. Therefore, | when the Government

argues that assignees eould be rejected upon examination

at the camp, it misapprehends and misinterprets the Regu-

lations to this Court. Pes

The Government made it appear to this Court that |

every assignee reporting at a civilian public service - camp

“was given a complete reexamination: physically. This is not.

acéording to the facts. The right of a very few of the as-.

signees, reporting a change in physical condition, to a com-

plete reexamination certainly cannot be held to’ constitute

- an administrative remedy to every assignee who had been ©

declared acceptable upon the final-type physical examina- _

ticn. Since it is obvious that the right of some assignees,

-who reported a change in physical condition, to a reexami- :

nation does not constitute an administrative remedy to all

of such assignees—all accepted assignees—it cannot be

said to be an administrative remedy that must be resorted

_ toby all assignees as a condition preeedent to challenge

_ the administrative action.

Therefore for the purpose of determining. whether or.

not there is an administrative remedy; it must be said that

‘time Dodez and Gibson were ordered to report,-and as they

. existed at the time Falbo was ordered to report, are iden-

: tical in that they provide‘ for ‘completion of the. selective

| process at the same poift. They do not provide for anad- .

ministrative remedu to every assignee against a final order

of! the administrative agency by reporting to the camp.

\

‘“

mt

_. fense: against the indictment.

Joint | Argument: ONE ht eee £3.

. Since there is no ‘difference between the Regulations

from that standpoint, it must be said that the Dodez case

is identical with the Kalbo case in every respect and there- -

fore this Court should reconsider its decision in the Falbo

case,° overrule the Falbo decision, | declare that the case

was erroneously decided, and set aside the doctrine therein

announced. ie . - er eae Ha ,

ie Aste ‘TWO

Gibson’s reporting at the civilian public service

camp as ordered and leaving it immediately after

acceptance and physical ¢xamination did not con-

-- stitute a waiver of his right to challenge the juris-

_. diction of the Selective Servi awa, in his de-

- Under the Regulations Gibson co id not be rejected

- upon his 2 ha at the civilian pablic service camp. Even —

- if the physical examination at the ‘camp-had disclosed that .

_ he was physically unfit for training and service, he would

not have been discharged. The Regulations provided that

-he would be accepted regardless of the outcome of the phys-

ica) examination. (Reg. 653.11) As a matter of fact,\he was

accepted at the eamp on August 23, 1944, the day on which

he arrived at the camp, when the acting camp director filled

- out the Report of Physical Examination and Induction

(Form 221) forwarded by the local board to the camp, as

required by Regulation 653.11 (c). This was several days

before he was examined by the cathp physician. However,

he remained at the camp unjil he had the physical examina-

tion,-for which he had come to the camp in the belief that

‘\

* Attention of the Court is again directed to ‘the fact: that this same sie

ment was urged upon the Court in the Second Petition fer Rehearing filed

_ in. Falbo vy. United States, No. 73 October Term 1943, pages 10-27, overruled

322 U.S. 776. This same question was presented-to this Court in Grieme vy.

United States, No, 883 October Term 1943, Petition for Writ of Certiorari,

pages 9-13, certiorari denied, 322 U.S. 744. -

‘

44 Joint Argument: TWO a

it was: ‘necessary in order to exhaust nis administrative |

remedies, .which examination was given him pursuant to:

_ Regulation 653.11 (b). - fe

The undisputed. ovidente shows that Gibson did not go

. tothe camp for the purpose.of performing work of national

Importance. Indeed, the evidence shows without contradic-

tion that he refused to perform any work whatever from

-the time he got there until he left. The only. reason he re- |

~ maingd at the camp was because he was awaiting the re-.

_ turn of.the camp. phy: sician. He thought it was his duty to

* stay at the camp until he had ‘been examined by the camip

_ physician. Gibson believed, baged on the legal advice in |

this Court’s decision in the Falbo case, that he could not

.. exhaust his administrative remedies until he had submitted

to the physical examination/ ‘for the purpose “of finalizing ~

his acceptance, While it may be conceded that he was in -

error as to where the line ‘was drawn or to what point he

had te go in order to-exhaust his remedies, yet it must be |

*- conceded that he reported at the camp for the sole purpose

of exhausting his remedies. After his physical examination,

- . following ‘his acceptance at the camp, he gave the camp -

_ director a letter showing why he had reported. The letter

Q proved that he reported at the camp for the sole purpose

'. of taking the physical examination and leaving because he |

claimed that the Selective Service System had no jurisdic-

i,.\ tion to order him to Teport for work of national importance ¢

*'\ or command him to.remain at the camp. [70-71] Indeed,

nd it must be conceded that the undisputed evidence establish-

'~) es. that Gibson in good faith believed that he was required

Q, to go to the camp for those purposes. It cannot be contended

- that he went for an evil or wicked purpose. He did not go

to the camp for the sole purpose of ‘defying the law.

He had reasonable grounds to believe that it was neces-

sary to report to the camp and there undergo a physica}

‘examination. The decision of this Court in the Falbo case.

Joint Argument: TWO % 45

was not clear as to where the line was drawn. Indeed, until

this Court decided the case. of Estep v. United States, 66

S. Ct. 423, even the Government stubbornly contended that

the line was not reached until the assignee reported for

work of national importance, there remained at the camp,

and applied for a writ of habeas corpus. :

In this contention about what the law was the Govern-

"ment erred. Gibson should not bé charged with knowing

more law than the Government. This is especially true in

view of the fact that this Court did not make plain its inter-

pretation of the Regulations i in the Falbo case.

A comparison of the Regulations, as they existed at the

time Falbo was ordered to report, with the Regulations as

they existed when Gibson was ordered to. report shows that

they were not different in respect to the right of every as-

signee ordered to report to have a physical examination.

upon reporting to the camp, which could result in his re-

. jection. The Regulations provided that the physical exam- .

~ ination was. given only in event that the assignee indicated

_« a change in his physicai condition since the final-type phys-

ical examination..This was at the.time Falbo was ordered :

_ to report. | eRe re

Under such circumstances there was no provision for

a healthy assignee, who had experienced no change in phys-

ical condition, to get an examination upon reporting at the

camp. Accordingly, the Regulations did net provide for

' eXamination in all cases or as a regular procedure forall

assignees’ reporting at the camps. | |

The:fact that the Regulations, at the time Gibson’ was

ordered to report, did not provide for an examination did

not change the situation. A healthy assignee had no more

opportunity to exhaust an administrative remedy by a phys-

ical examination at the time Falbo was ordered to report

than he did at the time Gibson was ordered to report. It

‘must be presumed that, st the time Falbc was involved;

\. 46 7 Joint Argument: TWO

\once an assignee was accepted upon a final-type physical

examination by the armed forees under the Regulations

his adceptance would continue up to and including the

time he was ordered to report, unless, of course, be had

. been severely injured, developed a chronic and devastating

disease or had suffered some other catastrophe.

Certainly no reasonable person reading the Regula-

tions as they existed then, or now, could claim that there is

any substantial difference insofar as exhaustion of admin-

istrative remedies is concerned. There were no adminis-

trative remedies then. There were none when Gibson re-

ported, Accordingly when this Court indicated that it-was

necessary for one to report at the civilian public service -

camp and undergo the physical examination as a condition

precedent to obtaining judicial review, every reasonable

assignee had the right to rely upon the logical inferences

to be drawn from the language of, and the decision in, the

Falbo case, Therefore Gibson was acting upon a command

that was implicit in the Falbo decision which required him

_ to go to the camp. The failure of the Court to clarify what

it meant‘in the Falbo decision cannot. be employed now as a

trap in which to ensnare an assignee who was vainly trying

to protect himself against the lawlessness of the adminis-

trative agency assuming jurisdiction over him contrary to

an express exemption. The Act stated that Gibson, a min-

ister of religion, was not subject to the jurisdiction of the.

administrative agency.

It would be especially harsh to hold that Gibson waived

his rights when there was no showing that he knew where

the actual Jegal line of exhaustion of administrative rem-

‘edies was drawn. There ‘was no ceremony to indicate where

he changed his status from that of an assignee to a campee.

There was no act Gibson’ was required to voluntarily do

which indicated to him and the whole world that he was

giving up his exempt status. In the absence of an induction

ceremony, as in case of selectees for the armed forces, or

,.

Joint Argument: TWO 47

of evidence explicitly showing that Gibson intended to

waive his rights under the law, there can be no presump-

tion that his act constituted a waiver of his legal rights.

Johnson v. Zerbst, 304 U.S. 458, 464.

It does not appear that Gibson had full knowledge as

to where the dividing line was, especially in view of the

holding of this Court in the Falbo case that the final-type

physichl. examination did not constitute an exhaustion of

the administrative remedies. It cannot be said that Gibson .

had full knowledge of what in the future the law would be

declared to he. Unless it can be shown that he was. aware of °

the consequences of his action and what this court will now

_ decide in these cases it eannot be said that he waived his

rights. It was impossible for Gibson to know where the

‘dividing line was at the time he reported. Even the Govern- _

ment did not know where the dividing line was at that time,

arguing that habeas corpus after induction or reporting

‘was the only remedy. There was confusion in the law re-—

sulting from a failure of this Court to be more explicit in

its opinion in the Falbo, case. Under the circumstances.

Gibson did not waive his rights to challenge the want of.

jurisdiction on the part of the administrative agency: in

spite of his going “too far” as contended by the Govern-

ment. Pence v. Langdon, 99 U.S. 578, 581; Provident Life

Ins. Co. v. Hawley (CCA-4) 123 F. 2d 479, 482; Keehn v..

Excess Ins. Co. of America (CCA-7) 129 F. 2d 503, 506.

* The very most that the situation can be likened to is .'

that of instances where a fine is paid under ‘ protest. In

- such instances it has been uniformly held thai there is no

waiver of the rights to challenge the imposition of the fine.

Hartwell y. United States (CCA-5) 107 F. 2d 359, 360;

United States v. Daschiel, 3 Wall. 688, 697-702. -

In view of the confusion in the law as to where the line

is drawn, and since the Falbo decision impliedly command-

ed Gibson to report at the civilian publie service camp, it

would be wholly unfair to use it as a trap in which to en-—

~<F Ws

| 48 Joint Argument: TWO

snare Gibson and deprive him of his Tights under the Act

and Regulations.

It will be conceded by the Government: that in cases

where one reports at the camp and applies for a writ of

‘ habeas corpus he does not waive his right to challenge the

‘want of jurisdiction of the administrative agency. If one

who reports at the camp and there remains, applying for

a writ of habeas corpus challenging jurisdiction of the

camp, does not waive his rights, of necessity one who re- -

ports and refuses to stay should not be waiving his rights.

‘If a camp does not have jurisdiction to hold an exempt

registrant applying for a writ of habeas corpus, then by

force of the same reason a‘camp would not have jurisdiction

_under the Act and Regulations sufficient to invoke the crim-

inal process against an “escaped” campee who walked off

_ in violation of the Regulations. Regardless of whether the

jurisdiction of the district court is invoked by the Selective: .

Service System to enforce the authority of the camp, or |

the court is appealed to through habeas corpus to break

the claims of authority made by the camp, the district court

has authority to inquire inte the want of jurisdiction and

lack of authority of the Selective Service System. “

‘ There is no logical reason or clear ground.that can be

aiserted to assume that Congress intended to deprive one —

who walked off from a camp, after reporting to exhaust

his administrative remedies, of his right to challenge the

‘authority of the administrative agency. It is ‘necessary to

have some explicit provision in the Act to warrant such a ~

strained and discriminatory conclusion. Certainly Congress

did not. intend that one charged with a violation..of the

Regulations by refusing to remain at a camp, after report-

ing in belief it was necessary to exhaust his adininistrative

_ remedies, has less rights to protect, himself. in the courts —

‘against an indictment brought for the purpose of sending

him to prison under the Act than are accorded to one who

wholly refused to report for work of national importance

Joint Argument: TWO 49

‘altogether. To so‘hold would indeed make a trap which

would subject those who in good faith went beyond the

line marked by the Regulations as a termination.of the

selective process, and in the honest belief that they were .

exhausting their administrative remedies, to more severe

penalties than those who stayed away altogether in de-

fiance of the board’s order to report. Bana Vv. Truesdell,

321 U.S. 542, 558-559.

There is no rule of nie too far” in an effort to ex-

haust one’s administrative remedies. Certainly a party to

an administrative proceeding would not waive his rights

by filing repeated motions for rehearing which are not au-

thorized by the Regulations. The generosity of one in going

beyond that which is required by law-to exhaust his admin-

- istrative remedies does.not harm the Government.

There is no reason for the new “rule of law” which the

government attempts to graft onto the body of administra- .

_ tive law that one can go “too far”. The proposed new rule

_ of going “too far” advocated by. the Government finds no

support whatever in reason or. justice. :

There is a reason for the rule of law which requires one

to exhaust his administrative remedies. The courts are not

desirous of taking on a controversy prematurely, The

courts want parties subject to administrative acts to ex-

haust-every possible effort to settle their disputes in the

agency before appealing to the courts for relief. The rule

of exhaustion of administrative remedies is merely a rule

of expediency, it is a rule of reason, Myers v. Betidehem

Shipbuilding Corporation, 303 U.S. 41. But certainly it ean-

not be said that becanse one does more than what the law

requires (in an effort to obtain administrative relief before

precipitating the administrative controversy into the

courts) he should be penalized. Indeed, an effort to “re-—

exhaust” administrative remedies tends to reduce litiga-

tion rather.than foment it, which’ a premature appeal to

50 Joint Argument: TWO

the courts from administrative action does. Avoidance of

the latter. is the aim of the rule requiring the exhaustion

of administrative remedies.

It has long been uniformly held that where one is as-

sailed by an indictment or preeéeding in court he can de-

fend and “The liability and the right are inseparable. A

different result would be a blot upon our jurisprudence

and civilization. We cannot hesitate 01 doubt on the subject.

- It would be contrary to the right. principles of the social

compact and of the right administration of justice.”

McVeigh v. United States, 11 Wall. 259, 267.

The right to attack an administrative order on the »

ground of its illegality, in defense to an indictment, is sup-

ported by Windsor v. McVeigh, 93 U.S. 274, 277-278. There

it was said: “Wherever one ‘is assailed in his person or

his property, there he may defend, for the liability and

‘the right are inseparable. This is a principle. of natural

justice, recognized as such by the common inteiligence and

' conscience of all nations.”

- * Tt igs the duty of this Court to give to the statute a rea-

sonable interpretation. The interpratation. given by the .

Government is wholly Boca addition to being.

unsupported by any valid reason. It is unreasonable td

suppese that Congress would authorize the Government’ °

to proceed against a defendant under the Act and at the

same time cut out his defenses as the Government here

~ argues. A reasonable construction requires that this Court

_ impute no-such evil intent to Congress. On the contrary,

it must be supposed that Congress intended that every de-

fendant prosecuted under the Act would. have a fair trial

and full hearing.

It is a rule of long standing, established by this Court,

that all reasonable doubts concerning the meaning of a

' - statute should operate in favor of the rights of the defend-

‘ ant. In Harrison v. Vose, 50 U.S. 372, at page 378, this

Court said: “In the construction of a penal statute it is .

.

" Joint Argument: TWO 51

well settled, also, that all reasonable doubts concerning its

meaning ought to operate in favor of the respondent. In

United States v. Shackford, 5 Mason 445,‘ Justice Story

~ says: ‘It would be highly inconvenient, not to say unjust,

“to make every doubtful phrase a dragnet for penalties’

(p. 450). ” Also, in United States v. Kirby, 7 Wail. 482, at

pages 486-487, the Court observed: “All !aws should receive

a sensible construction. General terms should be so limited

_. in their application as not to lead to injustice, oppression

or absurd consequence. It will always, therefore, be pre-

- sunied that the legislature intended exceptions to its lan-

guage, which would avoid results of the character. The

reason of the law in such cases should prevail over its let-

ter. Literal interpretation of the statutes at the expense of

_ the reason of thelaw and producing absurd consequences

or flagrant ‘injustice has frequently been condemned. ¥

Petitioner 4 is therefore in exactly the same position as

though he were before the court upon a petition for writ

f habeas ‘corpus. The only difference is the method in

which the question is presented to the court. In a habeas

corpus proceeding the question would be presented upon

an affirmative move initiated by Gibson, who would re-

quest the court to.pass upon the validity of the order to

report. Here the civilian public service camp has invoked

the order to report for work at the camp as ground for its

jurisdiction, and by -affirmative move requests the court to

find that petitioner has defied that jurisdiction. The ques-

tion for the court to decide is whether one jllegally classi-

fied, ordered to do work of national importance and who

reports, must remain at the camp and then apply for a writ

of habeas corpus as the only remedy. e

Stated another way: The court must decide whether .

one who has exhausted his administrative remedies may

be denied his right to challenge the validity of the order

upon which an indictment is based, charging him with vio-

7. oe Joint Argument: Two

lating the Act for-failure to remain at the camp and: do

work of national importance after having completed his

administrative remedies.

The Government. through syllogism reaches the con-

clusion that Gibson is in the same posture as Smith and

Kstep* would have been had they submitted to induction

and then deserted from the armed forces. It should be ob-

served that the United States Circuit Court wf Appeals

for the Eighth Circuit held, in Ver Mehren vy. Sirmyer, 36 -

F. 2d 876, that the invalidity of the administrative action

could be challenged by a deserter who had been court-

-martialed in spite of his defiance of the orders of the ad-

ministrative agency and-of the armed forces. The-Govern-

ment cites district court decisions holding, under the 1917

Act, that deserters could not challenge the validity of draft.

board determinations and the validity of court-martial pro-

ceedings resulting from their desertion. (Fx parte Romano,

251 F. 762, 764 (D. Mass.); Ex parte Tinkoff, 254 F. 912

(D. Mass.); Ex parte Kerekes, 274 F. 870 (KE. D. Mich.))

This analogy is specious and not a for several

reasons. In the first place, there is no induction ceremony or

other formality that an assignee is required, to undergo be-

fore attaining the status of a full-fledged campee. No line is

drawn to. warn the assignee that-he is about to assume a

status imposing additional obligations. In the\case of a man

ordered to report for induction into the armed forces ap-

propriate ceremony is prescribed, affording him opportu-

_ nity to'choose between acceptance of milita ‘service or

‘prosecution in the civil court. A campee is an always re-

~mains a civilian. He has no opportunity to choose between

the status of an assignee and defending his poy in the

civil court. The law-requires him to report at the camp in-

order to do work of national importance under ¢ivilian di-

rection. (Reg. 652.11, 653.12) Concededly, since there is no

_ * Petitioners involved in Estep v. United States, 66 8. Ct. 423,

a c

.

ce

Joint F pssivvaasss TWO _ dd

opportunity to make the choice, it cannot be said that ax

- minister who is attempting to exhaust his administrative

remedies by completing the selective process has waived |

“his right to challenge the legality of the administrative |

action.

The Government contends that it ‘is the unqualified

duty.of each registrant classified as.a conscientious objector

to report at a civilian public service camp and there ré-

main until administgatively released or judicially. released a

by habeas corpus. The Government makes’ no distinction

between registrants liable for the performance of work of

national importance and those. expressly exempted hy

Congress from training and service. The Government's ar--

guinent may be applicable-to a person liabie for training

and service, However, the Government’s theory is not. ap-

plicable to any who are specifically exempted from training -

and service.: It is within the discretion of the Selective

Service Director to defer certain persons liable for train-.

ing and service, or allocate them to perform service else-’

where than in the armed forces. Such persons do not have -

the same rights as registrants expressly exempted by Con-

gress from training and service. These two types of regis- -

trants should not be confused one with the other. It is not

a question of the propriety of the classification made within |

the authority of the classifying agency if ‘an exempt regis:

‘ trant is ordered to report for work of national importance.

In such a. situation it is rather a question of want of juris-

diction, lack of authority, or ultra vires action, on the part ©

of the administrative agency. In such an instance of illegal

action, the order i is not voidabie but is wholly and 5 taal

ly void. /

Even though an exempt registrant should report to ae

civilian public service camp for the purpose of exhausting — -

_ his rerhedies and thereby subject himself to the custody of

the director of the camp, this ‘does not confer jurisdiction

D4 t Joint Argument: TWO.

upon the camp director. The order to report for induction

being void for want of jurisdiction on the part of the board,

a fortiori, the alleged jurisdiction of the camp, “rector 3 _

likewise void fer’the same. reason.

, The order of an executive digency commanding a per-

son “exempt from military duty to submit to the perform-

ance of duty is void for want of jurisdiction. It follows that

the orders of-a draft board and of a camp director based

upon ine decision that an exempt person is liable for train-

-+ dng and service is “clearly without jurisdiction, cannot pro-. .

' teet the: officer who executes” them. Wise v. Withers,

3 Crarich 331, 336.

The rule. of the cases alluded to by the Government i is

confined .to instances where the process defied is issued by

a tribunal _having jurisdiction. Inasmuch as the rule ad-

nl + by: the Government is confined to process “merely

voidable rather than void, the analogy does not apply to the

conduct of a niinister exempt by act of Congress in leaving

a civilian public service camp that does not have jurisdic-.

tion over him because of ‘the ultra vires action of his local

board. In this instance the order given Gibson by the draft

boards was void rather than voidable, for want: of juris-

diction of the local board. Indeed, the draft boards and all

persons acting under their direction in assuming jurisdic-

tion over Gibson are liable to Gibson for damages in a tort

action at law.® Therefore the cases relied upon by thie

Government in ‘instances where there has been defiance

of a warrant for arrest or escape from a penal institution

are wholly inapposite here. Moreover, the line of district

- court decisions in which it has been held that a deserter

could not challenge his classification under the 1917 Act

* because of his defiance of the authority and taking the

* Miller vy. Gorton, 152 Mans, 540; Pearson v. Zehr, 158 Til. 48; “Manning

vy. Ketcham (CCA-6) 58 F. 2d 948; Wise ‘v. Withers, 3 Cranch’ 331, 336.

See, also, Dickinson, Administrative ‘Justice and the Supremacy of Law ia —

the United States (1927, Harvard University Press, Cambridge, Mass.)

Pp ages 44-45, 307-308.

MOTTE Or Oe eer ck hr ASTOR nom ne }

5 ere Se _ , oT

.& : re hy

Joint Argument : TWO ; a)

law into his own hands, did not involve situations where

the registrant was entirely exempt from all training and

service under the Act. Furthermore, these decisions are

materially weakened by the decisions of the Circuit Court

of Appeals in Ver Mehren v. Sirmyer (CCA-8) 36-F. 2

876, with which they conflict.

‘Another position of the Government is that by report-

ing at and leaving the camp after having exhausted his.

administrative remedies upon the preinduetion physical

examination, Gibson ‘defied the law and compelled the ad-

ministrative: authority fo invoke the criminal sanctions *

clause of the Selective Training and Service Act against

* him. The Government says that Gibson “cannot test in-that

way the validity of the orders as applied to him.” (Hira- .

bayashi v. United ‘States, 320 U.S. 81, 109; Giese v. United

States (App. D. C.) 143 F. 2d 633, 635,,affirmed, per curiam,

‘by an equally divided court, 323 U.S. 682: (See “Memoran-

dum for the United States in opposition to the granting of

petition for writ of certiorari” in the Gibson case, pp. 8, 19.)

Moreover, the Government says that the course taken

by Gibson is{similar-to that of a prisoner in a penal insti-

tution who tke illegally eseaped from custedy and who, on

being prosecuted for jail-breaking, is denied a defense to

such prosecution on the ground that his sentence was irreg-

ular or voidable. The Government relies upon three cases.*

The Government’s assertion_that the Hirabayashi de- -

cision is apposite here is spurious. The argument is wholly

factitious. The question involved there was whether the

curfew ordér was an unconstitutional delegation of author-

* Memorandum! in opposition to petition fer writ of certiorari, p- 10:

‘Similarly, a prisoner in a. penal institution cannot justify his exeape hecause

he is_eonfined under an irregular or voidable sentence; despite the illegality

, of his imprisonment, he has committed a criminal offense. Dastene y. United

States, 141-F. 24 578 (CCA-9), certiorari denied, 222 U.S. 748; United

States vy. Jerome, 130 F. 2d 514, 519, certiorari denied ag to this point,

317 U.S. 606; Aderhold y. Soileau, 67 F. 24 259. (CCA-5). For other exam-

ples of situations in “which, ‘even in peacetime, the’ duty of the citizer to

cooperate in effective law enforcement overrides his convenience,’ see Giese v.

mited States, 143 F.2d 633, 635 (App. D.C.), affirmed, per curiam, by an

equally divided eGurt, 323 U.S. 682."’

_ provided for exemption: lof loyal Japanese, or provided for.

ceded ‘that in such cireumstance Hirabayashi, if a Chinese

56: =. «int Afgunent: TWO . @ A. /

a . 2 Be pe ee

ity atid discriminatory, The validity: of tlie exclusion order’ _

was not determined. The orders were made on a race/or aa

- group basis..In tliat/ease there. was no provision for! i in-

dividual dniiimentnedite determinations. The law did/ not -

contemplate: individual classifications. There was no/provi-

_ sion for exhaustion, of administrative remedies. There was

” nothing said|in the Act or the order about administrative

poisson bar sle respecting loyal citizens as compared with

disloyal citizens of ‘Japanese. ancestry. It can be assumed

that if the law or orders involved in the Hirabayashi case —

administrative deterfhinations upon an individual basis as.

‘a condition precedent'to invoking an exclusion order, then an

7 inquiry thereof would have been permitted in a defense to an’

indictment of one charged with defyi ing the exclusion order: ;

. Bven in the absence of an administrative determina-

tion en an’individual basis, it must be assumed that if the

Army did not have jurisdiction and authority over the par-

ticular individual,or class of individuals, the“person thus

cleiz:ing want of authority. could assert. it in defense to ,

an indictihegt_based on his allege defiance of the order.

‘Suppose, in the Hirabayashi case that Hirabayashi were a.

' Filipino or a Chinese who had been mistakenly included in

the curfew order or the. evacuation order. It must’ be ¢on-

or Filipino ( neither of which nationals was within the scope —

of the order), could prove his nationdélity and show that the

order was ultra vires and in excess of the jurisdiction as-

serted by the armed forces. That is precisely the situation

~ presented here. It would be a violation of due process. to

compel one not subject to administrative action to comply.

- with it in order to question the want - authority of the

- administrative agency. ;

In the Hirabayashi case the defeniant actually defied

the eirfew vider and ‘the evacuation order. Nevertheless * _

* :

APY EONS ABE GRE ICOA Dy PPE OTRO) IPE me "

* vag

oa

Joint Argument: TWO BT

x

. b* .

this court considered his defense that the euNew order was

void. In that case the Government did not eontend that the

defendant was not entitled to raise and the éourt was not

entitled to consider the defenses urged because he had not

complied with the order. If a defense as to the constitu-_

tionality of a Particular order can be considered on the.

ground that it involves a, determination of the constitution-

_ ality of the curfew order, then with equal force of reason

the Gourts can’also construe ihe order or stattite and con-—

‘sider whether the particular order is applicable to the facts .

or is illegal because contrary to the statute authorizing it,

in that the person affected is exempt or the administrative

agency did got have jurisdiction, without requiring that he

comply with the order. It seems plain that if an order of an

administrative agency islegal it should not and can not be

flouted; but that if an order of such agency is illegal and |

void, thein as a ‘matter of fact it cannot place any citizen

under an obligation to do anything. If the citizen chooses

to ignore an invalid, unlawful order, no one would contend

that he-would be prevented from setting up this fatal de-

_ fect in any subsequent. prosec ution that sry aec8 be instituted |

against him. ;

_ The analogy between ae action of Gibeonvand that of °

an escaped convict is wholly. factitious and syllogistic. Itis. .

based upon an assumption of fact that does not exist. Like

a _house built upon a foundation of, sand, it appears'to be

- apposite. Yet when subjected ta the turbulent waters of. |

truth, the foundation melts away and the structure of the,

argument collapses. In the ‘case of an escaped convicty

charged with jail- breaking, the prosecution is not based up-

_ ‘on the judgment and commitment that placed him in cus-

tody, The comnfitment is wholly collatéral. The jail-break-

~ing is, incidental to the original judgment. Prosecution for

jail-breaking- is based upon a statute sity prohibit- -

ing jail-breaking. Prosecution in the instant CASE is directly |

58 Joint Risa pac TWO

_ hased upen alleged defixinee! of an administrative order —

w hich is directly challenged in the proceedings. |

‘ In the Gibson case the administrative authority “has.

© leer directly invoked by tae civilian public, service camp in ©

P delingueney proceedings through indictment charging Gib-

son with a violation of the administrative. order. Gibson

says that the administrative order is void for want-of f juris-

‘diction of the camp and of ar ‘adininistrative agency. He-

says. that the order is ultra vires and that it is wholly void.

It is mare than voidahle. When the supposed analogy

- claimed’ by the Government between the act of Gibson and

that of an escaped convict is subjected to somnlway it dis-

appears as an illusion.

In cases involving nase ese for prison breaks the

. the case at bar Gibson was confined at a civilian publi ic

' service camp because this court in the ‘Falbo case ruled

‘that he had-to go there ‘to exhaust his administrative rem-

*. edies, on account of the violation of the law by the admin-

‘istrative agency. Since the board had no jurisdiction be-

cause he was exempt as a minister of religion from all train-

ing and service under the Act, the camp had no jurisdiction.

This can be shown in actions instituted under Section 11

. of ‘the Act to enforce the orders” of the administrative.

agency.

| The proceedings in the Gibson c case are more ‘uenily

~ analogous to contempt proceedings based upon defiance of

the order of court than the Government’s “escaped convict”

simile. The decision styled’*Jn re Burrus (136 U.S. 586)

held that one who defied the order of a court could ehal-

lenge the validity. of the order on: the grounds of want of ah

authority, ultra v irés, or excess of jurisdiction to’ make the

order. See also Sibbach v. Wilson & Co., 312 U.S. 1, 16.

It is indeed unfair to deny Peninieter of: religion, who.

has attempted to protect his rights under the act; his right

Joint one: anO. : a9

fo challenge the leaniiey of the ‘administrative action be-

cause he went.‘too far’ when he reported i in good faith in

an attempt to complete the selective process as suggested

by this court in the Yalbo and Billings decisions. The Gov- —

ernment says that the petitioner assumed the risk of follow- |

ing such suggested course of action. The Government would:

have this court treat petitioner much worse than a man -

treats his dog. The dog, unaware of the law made for him -

in tlie chambers of his master’s mind, does not know he has: ~

made a mistake until he is whipped by his master. Bui even

-.a dog is not punished when he does what he is told to do.*

Here, however, the Government would have the court pun-

ish Gibson for doing what this court impliedly, tf not ex-

presaly, suggested, in the Falbo and Billings decisions.

Gibson respectfully asks, Is not the Government asking the

Court to go "too far’? Will compliance with the Govern-

ment’s request be “equal justice under law’?

*<‘Bearce any man has the means of knowing a twentieth part of the

laws he is bound by. Both ‘sorta of Iaw are kept most huppily and care-

fully’ from the knowledge of the people: statute law by its shape and

_ bulk: common law by ita very essence, It is the Judges (as we have seen) |

that make the common law:--Do you know how they make it? Just as a

man makes laws for his dog. When your dog does any thing you want to -

break him of, you wait till he does it, and then beat him for it. This is

the way you make laws for your dog: and this is- the way Judges make

law for you and me. They won't tell a man before hand what it is he

should not do, they won’t so much as allow of his "being told: they lie by

till he has done something which they say he‘should not fave done, and

then they hang him for. it. "TRUTH in Jeremy Bentham’s Truth versus,

. Axhhurst (London, December 17, 1792; printed in 1823 by T. Mosea, 36,

Wilderness Row, London, England.) *

b |

/ @

Joint Argument: THREE. 61

THREE

The construction placed upon the Act and Reg- |

ulations by the co below denies petitioners |

their right to challenge the jurisdiction of the draft

boards.and the legality of the orders supporting

the authority of the ¢ivilian public service camps in

violation of due process of law, contrary to the .

Fifth Amendment to the United States Constitution,

and denies them a judicial trial contrary to Clause 3,

Section 9 of Article I, and Article liFof the United

States Constitution.

“Since it is conceded that each petitioner reached the:

point where his administrative remedies had been ex-

hausted, it must be concluded that each whs qualified for

judicial review of the administrative action as a defense

against each indictment. The undisputed evidence and the

record show that this right was denied each petitioner.

If the Act and Regulations, as applied in these cases, _

are to be construed so as to deny one the right to a judicial A

review of the administrative action in response to the in-

dictment, then such construction and denial is contrary ¢o

- the due process clause of the Fifth Amendment to the Unit-

ed States Constitution. McVeigh v. United paren Wall.

259, 261,.267-268; Windsor v. McVeigh, 93 U.S. 274, 277,

278-279; Hovey v. Elliott, 167 U.S. 409, 419415, 417-418;

Bredsivect v. Neptune, 3 Sumn. (U.S.) 600; Ong Chang

Wing v. United States, 218 U.S. 272, 279; Chicago M. &

S. P. R. v. Minnesota, 134 U.S. 418, 456-457; United States .

ex rel, Trainan v. Cain (CCA-2) 144 F. 2d 944; Estep v.

United States, 66 S. Ct. 423, 429-433, concurring oe of .

Mr. Justice Murphy. ‘d

Moreover, to deny Gibson his right to he heard in his

. defenses in response to the indictment because he is charged -

by the Government with going “too far” is an arbitrary and

&

eee ‘Joint A: ument: THREE

capricious denial of a’ judicial trial. If the Act and Regula-

tions be construed to sustain such an abridgment of the

right to a. judicial trial, then.such construction transforms

the Act and Regulations into a Bill of Attainder, contrary

‘ to Clause 3, Section 9 of Article I, and Article Jil of the

United States Constitution. Cummings Vv. ‘dent 4 Wall.

277, 320-332; United States v. Loveti, No. 809, October |

Term 1945, 14 L. W. 4399, 66 S. Ct. 1073, decided June 3,

1946; kK entucky v. Jones, 10 Rush. (70 Ky.) 729. 3

- The argument of the Governnient that alleged viole-

tors of the Act, such as petitioners here, cannot challenge |

those orders in defense to'an indictment and that the only

reiiedy one has is to remain in camp and apply for a writ

of habeas corpus, requires thie Court to place an unreason-

able and unconstitational construction upon the Act. Addi-

tionally, it raises “a succession of constitutional doubts as

to such interpretation. * (Harrison v. Interstate Commerce

Commission, 211 U. S..407, 422) Where a statute is suscep-

tible of uwo constructions “by one of which grave and doubt-

ful constitutional questions arise and by the other of which’

such questions are avoided, our duty is to adopt the latter.”

- United States v. Kirby, 7 Wall. 482, 486-487; United States

v. American Trucking Ass'n, 310 U.S. 534.°

* The unconstitutionality of the Act as construed and applied. in this manner

was exhaustively argued to this Court in Smith v. United Stotes, No. 66

October Term 1945 and Estep. v. United States, No 292 October Term. 1945,

in joint brief for petitioners at pages 85-105. For further and more exhaus-

tive argument on this proposition, the Court is here and now secured to that .

i" argument in ‘euch brief.

Joint Argument: FOUR . 63

FOUR

The holdings of the courts below that petition-

ers could not challenge the jurisdiction of the draft

boards in their trials because they had not resorted ©

to the remedy of habeas corpus, were fundamental

errors requiring reversal of convictions.

It is not necessary ra argue this point exhaustively. |

Obviously, if these petitioners were denied their right to

make. a defense that was available under the indictment,

petitioners are entit!ed to a new trial in each of these cases.

The Government, of course, will undoubtedly argue that

the error on the part of the courts below, in rejecting the

‘ evidence and in holding that no cetenpe was available, is

harmless error.

A similar effort was. attenpted by the court of ap-

peals in the case of Smith v. United States, 148 F. 2d 288.

(See the last point discussed in that opinion.) This Court

reversed the judgment in the Smith case because the trial

court refused to exercise its judicial function. There the

trial court failed to pass upon the issue raised. It refused

to permit the jury to consider the: isstie. The questions for

determination by the court and jury were limited to wheth-

er or not the defendant complied with the order, The same

failure to exercise the judicial function is prevalent here.

The trial courts-did not pass upon the merits of petitioners’

defense. If the Government can now argue the merits of

the classification -giver® petitioners, then it was also the

duty of the trial court’ in each of these cases to consider

the defense. Inasmuch as the trial court did not consider it

or permit the jury to consider it, the error cannot be cured

by the rationalization of the Government. oY

The rule announeed by this Court in Estep v. United

States, s, 66 S. Ct. 423, 429, is applicabie : “Since the peti-

a)

64 Joint Argument: FIVE

tioners [Smith and Estep] were denied the opportunity to

‘show that their local boards exceeded their jurisdiction, a

new trial must be had in each case.”

FIVE

The trial court committed reversible error in

excluding the proof offered by Gibson, and in re-

fusing the requested finding of fact and conclusion

of law tendering the issue of Gibson’s good faith

and honest belief that he was exempt from training

and service and that the civilian public service camp

director had no jurisdiction to command him to

remain at the camp.

. Upon the trial of his case Gibson effered evidence, in

an effort to show his good-faith belief that he was exempt

as a minister of religion and that the civilian public service —

camp had no jurisdiction over him. {48, 73] This evidence

was excluded, to which he excepted. [48,73] In his request

for finding and conclusion number 27, Gibson’ requested

the trial court to find and consider whether Gibson in good ©

faith honestly believed that he was exempt &s a minister

of religion and that the civilian publi¢ service camp, there- ~ *

fore, had no riglit to ask him to remain. [90]*

This proposition is advanced only as an alternative

ground for reversal. In event this Court finds that the

Givoun case should be reversed, because of the trial court’s

refusal to consider whether or not the administrative agency

exceeded its jurisdiction, it will be unnecessary for this

Court ,to determine this question. Only in the event that

the Court holds that Gibson was not entitled to make his-

defense in response to the indictment is this proposition

advanced. If the Court finds that ‘he went “too far’, then,

* The request was not printed as a‘ part of the record in this case. It o

_ pears in the apres transcript of the record on file with “the Clerk,

| ~pages Lad 108,

td

.

oi o_nlUCUMMllUeeelCU 6A

4 |

ee ne a a a a ae a eae as

_ m ate at, Af ate ae

ee ee, |

2

Joint Argument: FIVE a, 65

under all the facts and circumstances, since. he was acting -

in good faith in an effort to exhaust his administrative rem-

edies by reporting to the civilian public service camp, as—

this Court indicated in the Falbo case that he should do,

it seems, at least, that his good faith should have been con-

sidered by the trial court in considering whether or not he

was guilty. This was not considered by the trial court.

The trial judge, in his rejection of the evidence and by

his refusal of the requested finding, held that the honest,

good-faith belief of Gibson was not material as a defense

_to the indictment. To support the propos'tion that good

faith in the Gibson case is an issue that should have been

considered and that the-court erroneously refused to con-

vider, Gibson reli¢és upon. Keegan. v. United States, 325

U.S. 478, 493-494 ; United States v. Murdock, 298 U.S. 389,

394-396. Bee also Okamoto v. United States (C€A-10) 152

F, 2d 905. In the Murdock case the defendant was con-

victed for wilfully and knowingly failing to supply infor-

mation as to his income. The grounds for the refusal were

that he believed that he was exempt on the items inquired

about and that the Constitution guaranteed him the right to

_ decline to incriminate himself. This reascnable belief of

cxemption, which was erroneous, and the fear that he might

incriminate himself, entitled the jury to consider that if he

had good faith he would not be convicted of wilfully -refus-

ing to give the information.

Gibson believed that he had a right to leave the camp

after. getfing his physical examination, and that all re-

quired of him was to exhaust bis remedies. This reasonable

belief based upon the facts of his case, and his rekrance upon

this Court’s legal advice contained in the Falbo and Billings

cases, supra, entitled im to have the court consider his

good faith in refusing to remain at the camp. .

The term “knowingly” as used in the Selective Train-

ing and Serviee Act is synonymous to the word “wilfully”.

66 | Joint A rgument : FIVE

It does not mean “voluntarily” or “unintentionally”. It

means prompted by a bad faith or with an evil intent or

for an illegal purpose. It means without legal hastificntion. |

If Gibson had iegal justification or reasonable grounds for -

- belief that he was legally justified i in leaving the camp, then

it cannot be said that he illegally, knowingly, and unlaw-

fully failed to perform a si required of him under the

Act.

The well-known presumption that a person intends the

natural consequences of his acts is rebuttabie, but a specific

intent is an essential element of the offense charged. Lows

v. United States, 66 F. 2d 870.

If the court were invoking the présumption that men .

intend the natural and probable consequences of their acts,

its rulings were equally | in error. The presumption of

wi ongiul intent based on the natural consequences of one’s

words or acts is not a conclusive presumption but a re-

buttable one, and this rebuttal may take the form of testi-

mony by the defendant himself that he intended no such

resui‘- -ind an instruction that accused could not contradict.

the assumption flowing from his act was held to be re-

versible error. Bentall v, United States, 262 F. 744; Laws.

v. United States, 66 F. 2d 870. Such a presumption is not

_ applicable in the presence of positive proof that defendant |

had a different intent. McDonald v. United States, 9 F. 2d

506; Blumenthal v, United States, 88 F. 2d 522, A presump-

tion that men intend the natural consequences of their acts

‘is not: appliexble in the face. of affirmative proof that de-

fendant had a diferent intent. An instruction that if the de-

fendant committed certain acts of violence. knowing their

effect, intent would be presumed: was held to be reversible

_error. McDonald v. United States, supra. It has been au-

thoritativels held that a defendant may by his uncorrob-_

orated testimony rebut the presumption that one is pre-.

-/sumed to intend the natural and probable consequences of

-

—... Jotnt ‘Argument: FIVE ae

his act, in fact that it may be “easily” rebutted. Weiss v.

United States, 122 F.-2d 675; cert. den. 314 U.S. 687.

Wilfulness “is something over and above the mere in-

‘tent to do a thing.” United States v. Saglietto, 41 F. Supp.

21. Where an offense is criminal only when knowingly and >

wilfully done, it is necessary not only to prove knowledge

of the act but to prove that it was done ae 2 bad intent.

_Bentall v. United. States, 262 F. 744. When afract or omis-

sion is a crime only if itis “wilfully” done, a specifie wrong-

ful intent is of the essence of the offense ; that is, there must

be not only knowledge of the existence of the obligation but

a wrongful intent to evade it. Hargrov é V. U nited States,

67 F. 2d 820.

Criminal intent has been defined as “a mind at fault

before there can be a crime”; as such it is an essential fact

_to-be proved in the establishment of guilt; though Congress

_may define an offense without unlawful intent, a statute

will not be so construed ‘unless such legislative intent is

clear. Masters v. United States, 42 App..D. C. 350; United

States v. Burroughs, 65 F. 2d 796, affirmed in part, 290

U.S." 534. a :

Thus, when specific intent is a ouit of the crime, the

existence of such intent must be proved as a fact like any

other fact in the case, and it is not presumed from the com-

‘ mission of an unlawful act. Parkersburg Transportation

Company vy, City. of Parkersburg, 107-C.S. 691; Savitt v.

United States, 59 F. 2d 541; United States v. Burnett, 53

F. 2d 219; United States v. Houghton, 14 F. 544; Herrman

_V. Lyle, 41 F. 2d 759. A criminal intent is necessary urless —

the statute otherwise provides. Nosowitz v. United nares

282 F. 575.

63 rae Joint Argument: FIVE

o

“Thete can be no CTIN}ey-targe or small, without an

evil mind. In other words, punishment is a sequence of

wickedness; without which it canrot be.”—Bishop on Crim-

inak Law, Sees. 287, 288. _ | / ei

As %aid in Felton v, United States, 96 U.S. 699: “

doing, or omitting to do 4 thing knowingly ‘or wilfully im-_

plies not only knowledge of the thing but a determination

with a bad kta: do it or to omit doing it.”

In this ease Gibson had good and reasonable grounds

for’ believing that he could not be retjuired to report and

remain at the camp, which should have been considered i in.

determining the guilt of the defendant.

The Act defines guilt as thé failure to perform a duty”

imposed hy the Act. If Gibson has no duty or because of

an exemption provided by the Act in good faith believes he ©

‘has’ no duty, the court and jury should consider it. The re .

failure to comply with the order does not conclusively estay-

‘lish a violation of-a duty under the Act. There are other .

factors w hich may be considered. If a selectee is ill, ad an

accident, was prevented from appearing by storm or mis-

_ take, he could show that in defense. (United States-v. Hoff- .—

man, 137 F.2d 416; United States v. Grieme, 128 F.2d 811)*

Similarly, good-faith belief that, the order is invalid is also

permissible as a defense.

* Cf. United States v. Madole (CCA-2) 145 F. 24 466.”

Conclusion

_ The judgments of the courts below should be reversed

_ and the-indictments ordered dismissed. In the alternative,

the judgments should be reversed and the tauses remanded

to. the trial courts for new trials not inconsistent with the

opinions that may be written herein.

Respectfully submitted,

TAZE HAMRICK GIBSON

and

GEORGE WILLIAM DODEZ —

By HAYDEN C. COVINGTON

Their Attorney of Record

VICTOR F. SCHMIDT —

- . of Counsel for

Georce Wit141aM Dopez

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Brief for Petitioner — Gibson v. United States · 329 U.S. 338 | Frix