# Brief for Petitioner — Gibson v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0148%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Petitioner - **Published:** January 1, 1946 - **Citation:** 329 U.S. 338 ## Text ——_a_ a . Sm mh Celgene 5 ' ~ FOR COPY | 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 | iene eor ame . &* *% , “ry re ‘i ‘ ed ve | 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-— ~ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0148%3A05. Public record. Not legal advice.