1. In a criminal prosecution under the Selective Training and
Service Act of 1940 for willfully failing and refusing to submit to
induction, a registrant who appeared at the induction center and
was finally accepted, but who refused to submit to induction --
having pursued his administrative remedy to the end -- may
interpose the defense that the action of his local board in
rejecting his claim of exemption as a minister of religion and
classifying him as available for military service was beyond its
jurisdiction.
Falbo v. United States, 320 U.
S. 549, distinguished. P.
327 U. S.
121.
2. Action of a local board which is contrary to the Act or the
regulations prescribed pursuant thereto is beyond the jurisdiction
of the board. Pp.
327 U. S.
120-121.
3. The fact that the Selective Training and Service Act makes no
provision for judicial review of the action of local boards or the
appeal agencies is not necessarily to be construed as a denial of
the power of the federal courts to grant relief in the exercise of
the general jurisdiction which Congress has conferred upon them. P.
327 U. S.
119.
4. Apart from constitutional requirements, the question whether
judicial review will be provided where Congress is silent depends
on the whole setting of the particular statute and the scheme of
regulation which is adopted. P.
327 U. S.
120.
5. Except when the Constitution requires it, judicial review of
administrative action may be granted or withheld, as Congress
chooses. P.
327 U. S.
120.
6. Section 11 of the Selective Training and Service Act is not
to be read as requiring courts to sanction orders which flagrantly
violate the rules and regulations defining the jurisdiction of the
local boards. P.
327 U. S.
121.
7. The provision of the Act making decisions of the local boards
"final" means that Congress chose not to give administrative action
under the Act the customary scope of judicial review which obtains
under other statutes; that the courts are not to weigh the evidence
to determine whether the classification made by the local board
was
Page 327 U. S. 115
justified, and that decisions of the local boards made in
conformity with the regulations are conclusive even though they may
be erroneous. P.
327 U. S.
122.
8. On judicial review, the question of the jurisdiction of the
local board is reached only if there is no basis in fact for the
classification given the registrant. P.
327 U. S.
122.
150 F.2d 768, 148 F.2d 288, reversed.
No. 292. Petitioner was convicted of a violation of the
Selective Training and Service Act of 1940. The circuit court of
appeals affirmed. 150 F.2d 768. This Court granted certiorari. 326
U.S. 703.
Reversed, p.
327 U. S.
125.
No. 66. Petitioner was convicted of a violation of the Selective
Training and Service Act of 1940. The circuit court of appeals
affirmed. 148 F.2d 288. This Court granted certiorari. 325 U.S.
846.
Reversed, p.
327 U. S. 125.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
In
Falbo v. United States, 320 U.
S. 549, we held that, in a criminal prosecution under §
11 of the Selective Training and Service Act of 1940, 54 Stat. 894,
50 U.S.C. App. § 311, a registrant could not defend on the ground
that he was wrongfully classified and was entitled to a statutory
exemption where the offense was a failure to report for induction
into the armed forces or for work of national importance. [
Footnote 1] We found no provision for
judicial
Page 327 U. S. 116
review of a registrant's classification prior to the time when
he had taken all the steps in the selective process and had been
finally accepted by the armed services. The question in these cases
is whether there may be judicial review of his classification in a
prosecution under § 11 where he reported for induction, was finally
accepted, but refused to submit to induction.
Estep's local board classified him as I-A --
i.e., as
available for military service. [
Footnote 2] Sec. 5(d) of the Act exempts from training and
service (but not from registration) "regular or duly ordained
ministers of religion." Under the regulations, those in that
category are classified as IV-D. [
Footnote 3] Estep, a member of Jehovah's Witnesses,
claimed that he was entitled to that classification. The local
board ruled against him. He took his case to the appeal board,
which classified him as I-A. [
Footnote 4] He then asked the State and National Directors
of Selective Service to appeal to the President for him. [
Footnote 5] His request was refused.
The local board thereupon ordered him to report for induction. He
reported at the time and place indicated. He was accepted by the
Navy. But he refused to be inducted, claiming that he was exempt
from service because he was an ordained minister of the gospel.
Page 327 U. S. 117
He was indicted under § 11 of the Act for willfully failing and
refusing to submit to induction. [
Footnote 6] He sought to defend on the ground that, as a
Jehovah's Witness, he was a minister of religion, and that he had
been improperly denied exemption from service, because the
classifying agencies acted arbitrarily and capriciously in refusing
to classify him as IV-D. He also claimed that his right to an
effective appeal had been denied because the local board unlawfully
withheld certain relevant documents from the appeal board and
included improper material in the record on appeal. The District
Court rejected these defenses, and did not permit the introduction
of evidence to sustain Estep's contention. The jury found him
guilty, and he was sentenced to imprisonment for a term of five
years. On appeal, the Circuit Court of Appeals affirmed on a
divided vote. 150 F.2d 768.
Smith, like Estep, is a member of Jehovah's Witnesses. He
claimed exemption from all service on the ground that he was a
minister of religion. His local board placed him in Class I-A, as
available for military service. His classification was affirmed by
the appeal board. On appeal to the President, his classification
was again affirmed. The local board then ordered him to report for
induction. He reported to the induction station, was accepted by
the military, but refused to be inducted, claiming he was exempt
from service because he was a minister. He was inducted against his
will, and later was held for trial by a general court-martial for
disobedience of military orders. He filed a petition for a writ of
habeas corpus ,which was denied,
Smith v.
Richart, 53 F. Supp.
582. While his
Page 327 U. S. 118
appeal was pending, we decided
Billings v. Truesdell,
321 U. S. 542. He
was thereupon released from military custody and indicted for
violation of § 11 of the Act. At the trial, he sought to attack the
classification given him by his local board, claiming, among other
things, that it acted without any foundation of fact, discriminated
against him because he was a Jehovah's Witness, and denied him the
right to make full proof of his claim that he was a minister of
religion. The court ruled that no such defense could be tendered.
Smith was found guilty by the jury, and a sentence of three and
one-half years was imposed. The judgment of conviction was affirmed
on appeal.
Smith v. United States, 148 F.2d 288.
The cases are here on petitions for writs of certiorari which we
granted because of the importance of the question presented.
Congress entrusted the administration of the Selective Service
System to civilian agencies, not to the military. It authorized the
President to create and establish a Selective Service System and to
establish civilian local boards and appeal boards to administer it.
§ 10(a)(2). The Selective Service System was designed to
"provide for the classification of registrants and of persons
who volunteer for induction under this Act on the basis of
availability for training and service."
Id. Congress specified certain restricted classes for
deferment [
Footnote 7] or
exemption from service, including in the latter, as we have said,
"regular or duly ordained ministers of religion." § 5. The
President was authorized to provide for the deferment of other
classes by rules and regulations. [
Footnote 8] § 5(e).
Page 327 U. S. 119
And the local boards, "under rules and regulations prescribed by
the President," were granted the
"power within their respective jurisdictions to hear and
determine, subject to the right of appeal to the appeal boards
herein authorized, all questions or claims with respect to
inclusion for, or exemption or deferment from, training and service
under this Act of all individuals within the jurisdiction of such
local boards."
§ 10(a)(2). The Act makes no provision in terms for judicial
review of the actions of the local boards or the appeal boards. For
§ 10(a)(2) states that the
"decisions of such local boards shall be final except where an
appeal is authorized in accordance with such rules and regulations
as the President may prescribe. [
Footnote 9]"
By the terms of the Act, Congress enlisted the aid of the
federal courts only for enforcement purposes. Sec. 11 makes
criminal a willful failure to perform any duty required of a
registrant by the Act or the rules or regulations made under it. An
order to report for induction is such a duty, and it includes the
duty to submit to induction.
Billings v. Truesdell, supra,
p.
321 U. S. 557.
Sec. 11 confers jurisdiction on the district courts to try one
charged with such offense. But § 11 is silent when it comes to the
defenses, if any, which may be interposed.
Thus, we start with a statute which makes no provision for
judicial review of the actions of the local boards or the appeal
agencies. That alone, of course, is not decisive.
Page 327 U. S. 120
For the silence of Congress as to judicial review is not
necessarily to be construed as a denial of the power of the federal
courts to grant relief in the exercise of the general jurisdiction
which Congress has conferred upon them.
American School of
Magnetic Healing v. McAnnulty, 187 U. S.
94;
Gegious v. Uhl, 239 U. S.
3;
Stark v. Wickard, 321 U.
S. 288. Judicial review may indeed be required by the
Constitution.
Ng Fung Ho v. White, 259 U.
S. 276. Apart from constitutional requirements, the
question whether judicial review will be provided where Congress is
silent depends on the whole setting of the particular statute and
the scheme of regulation which is adopted.
Switchmen's Union v.
Mediation Board, 320 U. S. 297,
320 U. S. 301.
And, except when the Constitution requires it, judicial review of
administrative action may be granted or withheld as Congress
chooses.
The authority of the local boards whose orders are the basis of
these criminal prosecutions is circumscribed both by the Act and by
the regulations. Their authority to hear and determine all
questions of deferment or exemption is, as stated in § 10(a)(2),
limited to action "within their respective jurisdictions." It is
only orders "within their respective jurisdictions" that are made
final. It would seem therefore that, if a Pennsylvania board
ordered a citizen and resident of Oregon to report for induction,
the defense that it acted beyond its jurisdiction could be
interposed in a prosecution under § 11. That case could be
comparable to
Tung v. United States, 142 F.2d 919, where
the local board ordered a registrant to report for induction
without allowing him the appeal to which he was entitled under the
regulations. Since § 10(a)(2) makes the decisions of the local
boards final "except where an appeal is authorized" under the
regulations, the defense was allowed in the criminal trial.
Any other case where a local board acts so contrary to its
granted authority as to exceed its jurisdiction [
Footnote 10] does
Page 327 U. S. 121
not stand on a different footing. By § 10(a)(2), the local
boards, in hearing and determining claims for deferment or
exemption, must act "under rules and regulations prescribed by the
President." Those rules limit, as well as define, their
jurisdiction. One of those regulations forbids the local boards
from basing their classification of a registrant on a
discrimination
"for or against him because of his race, creed, or color, or
because of his membership or activity in any labor, political,
religious, or other organization."
623.1. Another provides, in accordance with the mandate
contained in § 5(c)(1) of the Act, for the deferment of governors
of States and members of Congress while they hold their offices.
[
Footnote 11] 622.42.
Another provides that the local board "shall reopen and consider
anew the classification of a registrant" on the written request of
the State Director or the Director and, upon receipt of the
request, "shall immediately cancel" any order to report for
induction or for work of national importance. 626.2-1. If a local
board ordered a member of Congress to report for induction, or if
it classified a registrant as available for military service
because he was a Jew or a German or a Negro, it would act in
defiance of the law. If a local board refused to reopen on the
written request of the State Director a registrant's classification
and refused to cancel its order to report for induction, it would
be acting in the teeth of the regulations. In all such cases, its
action would be lawless, and beyond its jurisdiction.
We cannot read § 11 as requiring the courts to inflict
punishment on registrants for violating whatever orders the local
boards might issue. We cannot believe that Congress intended that
criminal sanctions were to be applied to orders issued by local
boards no matter how flagrantly they violated the rules and
regulations which define their jurisdiction. We are dealing here
with a
Page 327 U. S. 122
question of personal liberty. A registrant who violates the Act
commits a felony. [
Footnote
12] A felon customarily suffers the loss of substantial rights.
[
Footnote 13] Sec. 11, being
silent on the matter, leaves the question of available defenses in
doubt. But we are loathe to resolve those doubts against the
accused. We cannot readily infer that Congress departed so far from
the traditional concepts of a fair trial when it made the actions
of the local boards "final" as to provide that a citizen of this
country should go to jail for not obeying an unlawful order of an
administrative agency. We are loathe to believe that Congress
reduced criminal trials under the Act to proceedings so barren of
the customary safeguards which the law has designed for the
protection of the accused. The provision making the decisions of
the local boards "final" means to us that Congress chose not to
give administrative action under this Act the customary scope of
judicial review which obtains under other statutes. It means that
the courts are not to weigh the evidence to determine whether the
classification made by the local boards was justified. The
decisions of the local boards made in conformity with the
regulations are final even though they may be erroneous. The
question of jurisdiction of the local board is reached only if
there is no basis in fact for the classification which it gave
Page 327 U. S. 123
the registrant. [
Footnote
14]
See Goff v. United States, 135 F.2d 610, 612.
Falbo v. United States, supra, does not preclude such a
defense in the present cases. In the
Falbo case, the
defendant challenged the order of his local board before he had
exhausted his administrative remedies. Here, these registrants had
pursued their administrative remedies to the end. All had been done
which could be done. Submission to induction would be satisfaction
of the orders of the local boards, not a further step to obtain
relief from them. [
Footnote
15]
If § 11 were not construed to permit the accused to defend on
the ground that his local board acted beyond its jurisdiction, a
curious result would follow. The remedy of habeas corpus extends to
a case where a person "is in custody in violation of the
Constitution or of a law . . . of the United States." R.S. § 753,
28 U.S.C. § 453. It has been assumed that habeas corpus is
available only
Page 327 U. S. 124
after a registrant has been inducted into the armed services.
[
Footnote 16] But if we now
hold that a registrant could not defend at his trial on the ground
that the local board had no jurisdiction in the premises, it would
seem that the way would then be open to him to challenge the
jurisdiction of the local board after conviction by habeas corpus.
[
Footnote 17] The
Page 327 U. S. 125
court would then be sending men to jail today when it was
apparent that they would have to be released tomorrow.
We do not suggest that, because Congress has provided one
judicial remedy, another should be implied. We may assume that,
where only one judicial remedy is provided, it normally would be
deemed exclusive. But the fact that habeas corpus after conviction
is available in these cases gives added support to our reading of §
11. It supports a rejection of a construction of the Act that
requires the courts to march up the hill when it is apparent from
the beginning that they will have to march down again.
We express no opinion on the merits of the defenses which were
tendered. Since the petitioners were denied the opportunity to show
that their local boards exceeded their jurisdiction, a new trial
must be had in each case.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of these cases.
* Together with No. 66,
Smith v. United States, on
certiorari to the Circuit Court of Appeals for the Fourth Circuit.
Argued and decided on the same dates.
[
Footnote 1]
Sec. 5(g) of the Act provides that a registrant shall "be
assigned to work of national importance under civilian direction"
if he is conscientiously opposed to induction into the armed
services even for noncombatant service.
See Selective
Service Regulations, 652.1-652.14, 653.1-653.16.
[
Footnote 2]
Selective Service Regulations, 622.11,
[
Footnote 3]
Id. 622.44.
[
Footnote 4]
By § 10(a)(2) of the Act, the President was authorized to
establish
"civilian local boards and such other civilian agencies,
including appeal boards and agencies of appeal as may be necessary
to carry out the provisions of this Act."
The provisions governing appeals to the boards of appeal are
contained in 627.1-627.61 of the Regulations. The Act provides a
special appeal procedure for conscientious objectors.
See
§ 5(g).
[
Footnote 5]
Either of them may take such an appeal at any time when he
"deems it to be in the national interest or necessary to avoid an
injustice." Selective Service Regulations, 628.1. A registrant may
appeal to the President when he is classified as I-A provided one
or more of the board of appeal dissented from such classification.
Id. 628.2. In Estep's case, the board of appeal was
unanimous in classifying him in I-A.
[
Footnote 6]
Sec. 11, so far as material here, provides
"any person who . . . shall knowingly fail or neglect to perform
any duty required of him under or in the execution of this Act, or
rules or regulations made pursuant to this Act . . . shall, upon
conviction in the district court of the United States having
jurisdiction thereof, be punished by imprisonment for not more than
five years or a fine of not more than $10,000, or by both such fine
and imprisonment. . . ."
[
Footnote 7]
Thus, by § 5(c)(1), specified classes of public officials were
deferred from training and service while holding their offices.
[
Footnote 8]
The regulations placed in deferred classifications those whose
employment in industry, agriculture, or other occupations or whose
activity was found to be necessary to the maintenance of the
national health, safety, or interest; those who had persons
dependent on them for support; those found to be physically,
mentally, or morally deficient or defective.
See Selective
Service Regulations 622.21, 622.25-1, 622.32, 622.61, 622.62.
[
Footnote 9]
The part of § 10(a)(2) relevant here provides:
"Such local boards, under rules and regulations prescribed by
the President, shall have power within their respective
jurisdictions to hear and determine, subject to the right of appeal
to the appeal boards herein authorized, all questions or claims
with respect to inclusion for, or exemption or deferment from,
training and service under this Act of all individuals within the
jurisdiction of such local boards. The decisions of such local
boards shall be final except where an appeal is authorized in
accordance with such rules and regulations as the President may
prescribe."
[
Footnote 10]
See cases cited in
note 14 infra.
[
Footnote 11]
622.42 provides, "In Class IV-B
shall be placed any
registrant" who holds specified offices. (Italics added.)
[
Footnote 12]
"All offenses which may be punished by death or imprisonment for
a term exceeding one year shall be deemed felonies." Criminal Code
§ 335, 18 U.S.C. § 541.
[
Footnote 13]
California: § 2600 of the Penal Code provides that a
sentence of imprisonment for less than life suspends all civil
rights and forfeits all public offices and private trusts,
authority, or power during the imprisonment.
New York: For a similar provision,
see § 510
of the Penal Law.
Missouri: § 4561 Rev.Stat.Ann. renders any person
sentenced to a penitentiary or convicted of a felony for any crime
incompetent to serve as a juror, and forever disqualifies him from
voting or holding office unless pardoned.
[
Footnote 14]
That is the scope of judicial inquiry in deportation cases where
Congress has made the orders of deportation "final."
Chin Yow
v. United States, 208 U. S. 8;
Ng
Fung Ho v. White, supra; Mabler v. Eby, 264 U. S.
32;
United States ex rel. Vajtauer v. Commissioner
of Immigration, 273 U. S. 103;
Bridges v. Wixon, 326 U. S. 135.
That is also the scope of judicial inquiry when a registrant after
induction seeks release from the military by habeas corpus.
See
United States v. Cain, 144 F.2d 944.
[
Footnote 15]
It is said that our conclusion runs counter to an unbroken line
of cases holding that a registrant may not challenge his
classification in a prosecution under § 11. But most of those
cases, on their facts, involved only the issue presented by the
Falbo case. In only a few of them was the issue presented
here necessary for decision. The question was reserved in
United States v. Pitt, 144 F.2d 169, 173. In the following
cases, the question was necessary for decision, and it was held
that the defense was not available;
Fletcher v. United
States, 129 F.2d 262;
United States v. Rinko, 147
F.2d 1;
Gibson v. United States, 149 F.2d 751;
Koch v.
United States, 150 F.2d 762.
[
Footnote 16]
See United States v. Grieme, 128 F.2d 811;
United
States v. Kauten, 133 F.2d 703;
United States v.
Mroz, 136 F.2d 221;
Biron v. Collins, 145 F.2d 758;
Fujii v. United States, 148 F.2d 298;
Gibson v. United
States, 149 F.2d 751.
See Connor and Clarke, Judicial
Investigation of Selective Service Action, 19 Tulane L.Rev. 344;
Elliff, Jehovah's Witnesses and the Selective Service Act, 31
Va.L.Rev. 811.
[
Footnote 17]
The courts which have said that habeas corpus was available only
after induction (
see note 16 supra) appear to have been influenced by
the decisions arising under the 1917 Act, 40 Stat. 76, 50 U.S.C.
App. § 201. Thus, in
United States v. Grieme, supra, 128
F.2d at 814, note 16, the court, in ruling that the findings of the
local boards were not reviewable by the courts said, "Here again,
the rule is similar to the construction placed upon the Selective
Draft Act of 1917.
See Ex parte Hutflis, 245 F. 798, 799."
The latter case involved a petition for a writ of habeas corpus
after induction, which was the accepted way of challenging the
jurisdiction of the draft boards under the 1917 Act. But, as we
pointed out in
Billings v. Truesdell, supra, p.
321 U. S. 546,
a registrant under the 1917 Act was subject to military law from
the time he was ordered to present himself for induction. Defiance
of the order was held to constitute desertion even though the
draftee had not been afforded a fair hearing by the board.
Ex
parte Romano, 251 F. 762;
Ex parte Tinkoff, 254 F.
912. It was said in
Ex parte Romano, supra, 251 F. at 764:
"Although based on irregular proceedings, it was not void. Until
vacated, it was binding on the petitioner."
But, as
Billings v. Truesdell, supra, makes plain, the
present Act and the regulations promulgated under it are different.
A registrant is not subject to military law from the time he is
ordered to report for induction, but only after he has submitted to
induction. Thus, the decisions under the 1917 Act, holding that his
remedy against unlawful action of the local board is by way of
habeas corpus after induction, are no guide to decision under the
present Act.
It is true that, after the conviction of the defendant in the
Falbo case, his petition for a writ of habeas corpus was
denied.
United States ex rel. Falbo v. Kennedy, 141 F.2d
689. And, in a like situation, habeas corpus was denied in advance
of the trial.
Albert v. Goguen, 141 F.2d 302. But, in
those cases, additional steps in the selective service procedure
remained to be taken. Denial of habeas corpus followed by analogy
to the familiar situations where other corrective procedures had
been available which might have afforded relief from the orders
complained of.
See Bowen v. Johnston, 306 U. S.
19;
Ex parte Williams, 317 U.S. 604;
Ex
parte Hawk, 321 U. S. 114.
But, in the present cases, the registrants, as we have said, had
pursued their administrative remedies to the end.
MR. JUSTICE MURPHY, concurring.
To sustain the convictions of the two petitioners in these cases
would require adherence to the proposition that a person may be
criminally punished without ever being accorded the opportunity to
prove that the prosecution is based upon an invalid administrative
order. That is a proposition to which I cannot subscribe. It
violates the most elementary and fundamental concepts of due
process of law. It condemns a man without a full hearing and a
consideration of all of his alleged defenses. To sanction
Page 327 U. S. 126
such a proposition is to place in indelible "blot upon our
jurisprudence and civilization,"
McVeigh v.
United States, 11 Wall. 259,
78 U. S. 267,
which cannot be justified by any appeal to patriotism or wartime
exigencies.
The two courts below condemned the petitioners to prison for
failing to obey orders to report for induction into the armed
services, which had previously found them physically fit.
Petitioners do not deny that they disobeyed these orders. They do
claim, however, that there was a singular lack of procedural due
process in the issuance of the induction orders, and that the
orders were therefore invalid -- claims that must be assumed to be
true for purposes of the cases before us. But the courts below,
relying upon
Falbo v. United States, 320 U.
S. 49, forbade them from raising such claims. Under that
view, it is irrelevant that the petitioners had never had a prior
opportunity, and will never have a future chance, to test these
claims; it is likewise immaterial that the claims, if proved, might
completely absolve them from liability. Thus, the stigma and
penalties of criminality attach to one who willfully disobeys an
induction order which may be constitutionally invalid, or
unauthorized by statute or regulation, or issued by mistake, or
issued solely as the result of bias and prejudice. The mere
statement of such a result is enough to condemn it.
The reasons advanced for thus depriving the petitioners of their
liberty without due process of law are unmeritorious.
First. It is said that Congress so designed the
Selective Training and Service Act of 1940 as to preclude courts
from inquiring into the validity of an induction order during the
course of a prosecution under § 11 for a willful failure to obey
such an order. But, if that is true, the Act is unconstitutional in
this respect. Before a person may be punished for violating an
administrative order, due process of law requires that the order be
within the authority of
Page 327 U. S. 127
the administrative agency, and that it not be issued in such a
way as to deprive the person of his constitutional rights. A court
having jurisdiction to try such a case has a clear inherent duty to
inquire into these matters, so that constitutional rights are not
impaired or destroyed. Congress lacks any authority to negative
this duty or to command a court to exercise criminal jurisdiction
without regard to due process of law or other individual rights. To
hold otherwise is to substitute illegal administrative discretion
for constitutional safeguards. As this Court has previously
said,
"Under our system, there is no warrant for the view that the
judicial power of a competent court can be circumscribed by any
legislative arrangement designed to give effect to administrative
action going beyond the limits of constitutional authority."
St. Joseph Stock Yards Co. v. United States,
298 U. S. 38,
298 U. S. 52.
This principle has been applied many times in the past for the
benefit of corporations.
Ohio Valley Water Co. v. Ben Avon
Borough, 253 U. S. 287,
253 U. S. 289;
Dayton-Goose Creek R. Co. v. United States, 263 U.
S. 456,
263 U. S. 486;
Panama Refining Co. v. Ryan, 293 U.
S. 388,
293 U. S. 432;
Prentis v. Atlantic Coast Line Co., 211 U.
S. 210. I assume that an individual is entitled to no
less respect.
But the Act need not be construed so as to reach this
unconstitutional result. Nothing in the statute commands courts to
shut their eyes to the Constitution or to deny a full and fair
hearing when performing their functions under § 11, and we should
be unwilling to imply such a prohibition. Once the judicial power
is properly invoked under § 11, a court has unquestioned authority
under the Constitution and the Judicial Code to accord a defendant
due process of law and to inquire into alleged deprivations of
constitutional rights despite the absence of any specific authority
under the Act to that affect. A contrary result certainly is not
dictated by the fact that the Act makes local board decisions
"final," subject to the
Page 327 U. S. 128
administrative appeal provisions. This merely determines the
point of administrative finality, leaving to the courts the
ultimate and historical duty of judging the validity of the "final"
administrative orders which they are called upon to enforce with
criminal sanctions, at least where no other method of judicial
review is previously available.
A construction of the Act so as to insure due process of law and
the protection of constitutional liberties is not an amendment to
the Act. It is simply a recognized use of the interpretative
process to achieve a just and constitutional result, coupled with a
refusal to ascribe to Congress an unstated intention to cause
deprivations of due process.
Second. It is urged that the purpose and scheme of the
legislative program necessitate the foreclosure of a full hearing
in a criminal proceeding under § 11. The urgent need of mobilizing
the manpower of the nation for emergency purposes and the dire
consequences of delay in that process are emphasized. From this
premise, it is argued that no "litigious interruption" in the
selective process can be tolerated, and that judicial inquiry into
the validity of an induction order during the course of a criminal
proceeding is a prime example of a "litigious interruption."
This argument, which was pressed so urgently and successfully in
the
Falbo case, conveniently ignores the realities of the
situation. The selective process, in relation to the petitioners,
was finally and completely interrupted at the time when they
disobeyed the induction orders and subjected themselves to possible
criminal liability. Any subsequent judicial review of the induction
orders could have no possible effect upon the continuance of the
selective process, and could bear no earmarks of a "litigious
interruption." Thus, at the time of petitioners' trials, the courts
were confronted with accomplished interruptions, rather than with a
theory. A decision at that point to
Page 327 U. S. 129
grant petitioners full hearings and to protect their
constitutional rights would simply be a recognition of the fact
that the Constitution protects the petitioners whenever their
liberty is at stake, whatever may have been their motives in
disobeying the orders.
It is alleged, of course, that to allow a full hearing in a
criminal proceeding under this Act would be to extend an open
invitation to all inductees to disobey their induction orders and
litigate the validity of the orders in the subsequent trials. This
is, at best, a poor excuse for stripping petitioners of their
rights to due process of law. Moreover, the degree to which
judicial review at this stage would encourage disobedience of
induction orders lies in the realm of conjecture, and cannot be
demonstrated one way or the other by proof. But common sense would
indicate that the number of those willing to undergo the risk of
criminal punishment in order to test the validity of their
induction orders, with the attendant difficulties of proof, would
be extremely small. Adherence to due process of law in criminal
trials is unlikely to impede the war effort unduly. And, should
perchance the opposite be true, there are undoubtedly legislative
means of combating the problem.
Third. The further suggestion is made that the only
judicial review of induction orders available is by means of habeas
corpus proceedings brought subsequent to induction, and that this
remedy satisfies whatever judicial review may be required by the
Constitution. I fully concur in the desirability and necessity of
such a proceeding for those who have been inducted and who wish to
test the validity of their induction orders.
It should be noted in passing, however, that this remedy may be
quite illusory in many instances. It requires one first to enter
the armed forces and drop every vestige of civil rights. Military
orders become the law of life, and violations are met with summary
court-martial procedure.
Page 327 U. S. 130
No more drastic condition precedent to judicial review has ever
been framed. Many persons with religious or conscientious scruples
are unable to meet such a condition. But, even if a person is
inducted and a quest is made for a writ of habeas corpus, the
outlook is often bleak. The proceeding must be brought in the
jurisdiction in which the person is then detained by the military,
which may be thousands of miles removed from his home, his friends,
his counsel, his local board, and the witnesses who can testify in
his behalf. Should he overcome all these obstacles and possess
enough money to proceed further, he still faces the possibility of
being shifted by the military at a moment's notice into another
jurisdiction, thus making the proceeding moot. There is little
assurance, moreover, that the military will treat his efforts to
obtain the writ with sympathetic understanding. These practical
difficulties may thus destroy whatever efficacy the remedy might
otherwise have, and cast considerable doubt on the assumption that
habeas corpus proceedings necessarily guarantee due process of law
to inductees.
But the availability of judicial review through habeas corpus
proceedings misses the issue in this case. Such a proceeding may or
may not provide an adequate remedy for the person who has been
inducted. We are dealing here, however, with two persons who have
not been inducted and who never will be inducted by force of the
orders under attack. The writ of habeas corpus following induction
is thus a completely nonexistent remedy so far as these petitioners
are concerned. It neither adds to nor detracts from the reasons for
granting judicial review in these criminal proceedings.
If, as I believe, judicial review of some sort and at some time
is required by the Constitution, then when and where can these
petitioners secure that review? They have not had a prior chance to
obtain review of the induction orders; nor will they subsequently
be accorded the opportunity
Page 327 U. S. 131
to test their contentions in court. It is no answer that they
should have pursued different courses of action and secured writs
of habeas corpus after induction. Due process of law is not
dispensed on the basis of what people might have or should have
done. The sole issue here is whether due process of law is to be
granted now or never. The choice seems obvious.
By denying judicial review in this criminal proceeding, the
courts below in effect said to each petitioner: you have disobeyed
an allegedly illegal order for which you must be punished without
the benefit of the judicial review required by the Constitution,
although, if you had obeyed the order, you would have had all the
judicial review necessary. I am at a loss to appreciate the logic
or justice of that position. It denies due process of law to one
who is charged with a crime and grants it to one who is obedient.
It closes the door of the Constitution to a person whose liberty is
at stake and whose need for due process of law is most acute. In
short, it condemns a man without a fair hearing.
There is something basically wrong and unjust about a juridical
system that sanctions the imprisonment of a man without ever
according him the opportunity to claim that the charge made against
him is illegal. I am not yet willing to conclude that we have such
a system in this nation. Every fiber of the Constitution and every
legal principle of justice and fairness indicate otherwise. The
reports are filled with decisions affirming the right to a fair and
full hearing, the opportunity to present every possible defense to
a criminal charge, and the chance at some point to challenge an
administrative order before punishment. Those rudimentary concepts
are ingrained in our legal framework, and stand ready for use
whenever life or liberty is in peril. The need for their
application in this instance seems beyond dispute.
Page 327 U. S. 132
We must be cognizant of the fact that we are dealing here with a
legislative measure born of the cataclysm of war, which
necessitates many temporary restrictions on personal liberty and
freedom. But the war power is not a blank check to be used in blind
disregard of all the individual rights which we have struggled so
long to recognize and preserve. It must be used with discretion,
and with a sense of proportionate values. In this instance, it
seems highly improbable that the war effort necessitates the
destruction of the right of a person charged with a crime to obtain
a complete review and consideration of his defense. As long as
courts are open and functioning, judicial review is not
expendable.
All of the mobilization and all of the war effort will have been
in vain if, when all is finished, we discover that, in the process,
we have destroyed the very freedoms for which we fought. These
cases represent a small but significant reflection of that fact.
The reversal of the judgments below is therefore in line with the
highest traditions of the Court.
MR. JUSTICE RUTLEDGE, concurring.
I join in the result in each case and in the Court's opinion for
the reasons it sets forth. A further reason would force me to this
result. In my judgment, a contrary construction would invalidate
the statute. I have no doubt that Congress could make
administrative or executive action final in such matters as these
in the sense of excluding all judicial review, excepting only what
may be required by the Constitution in the absence of suspension of
the writ of habeas corpus. [
Footnote
2/1]
Cf. 73 U. S. 6
Page 327 U. S. 133
Wall. 318;
Lockerty v. Phillips, 319 U.
S. 182;
Ng Fung Ho v. White, 259 U.
S. 276.
But as I do not think Congress can make it a crime punishable by
the federal judicial power to violate an administrative order
without affording an adequate opportunity to show its
constitutional invalidity,
cf. Yakus v. United States,
321 U. S. 414,
321 U. S. 460,
dissenting opinion, [
Footnote 2/2]
so even more do I not think Congress can make criminal the
disobedience to such an order allowing no opportunity whatever for
showing its unconstitutionality. It is one thing to deny
jurisdiction of the courts altogether, save insofar as the
Constitution, of its own force, may preserve the jurisdiction. It
is altogether different to confer jurisdiction for enforcement
purposes, but, in doing so, to cut off all right of defense on
constitutional grounds.
To sustain such a view not only would have the courts marching
up the hill in the criminal case and down again in habeas corpus.
[
Footnote 2/3] It would make the
judicial function a rubber stamp in criminal cases for
administrative or executive
Page 327 U. S. 134
action. And it would close the trap which, in
Billings v.
Truesdell, 321 U. S. 542,
321 U. S. 558,
we said would be set if
Falbo v. United States,
320 U. S. 549,
were construed to permit what it is now sought to have done to the
petitioners.
[
Footnote 2/1]
Under the Selective Draft Act of 1917, the civil courts were not
called upon to enforce induction orders by criminal proceedings;
for the receipt of such an order automatically subjected a draftee
to military law, and, for disobedience thereof, he was triable by a
court-martial for desertion.
See United States v.
McIntyre, 4 F.2d 823;
Billings v. Truesdell,
321 U. S. 542,
321 U. S.
545-546;
cf. the
Selective Draft Law
Cases, 245 U. S. 366.
[
Footnote 2/2]
And see the authorities cited in the Court's opinion,
321 U.S. at
321 U. S. 433,
321 U. S. 435.
Apart from the question of the validity of splitting a criminal
trial into civil and highly attenuated criminal parts, the issue in
the
Yakus case related to the adequacy of the opportunity
allowed for challenging the order's validity in the Emergency Court
of Appeals. The ruling did not comprehend a situation where no
opportunity is afforded prior to or during the trial.
[
Footnote 2/3]
It is not necessary in these cases to determine whether Congress
could confine the scope of review in the criminal cause, on
constitutional grounds, to those which might be asserted in habeas
corpus after conviction. The very fact that, ordinarily, the
permissible scope of such objections in the latter type of
proceeding is considerably more restricted than in the former is
additional reason for not accepting the Government's view that
Congress intended to allow review by habeas corpus, but not by
defense in the criminal trial.
That view, of course, rejects the idea that "final" in the
statute "means final" -- that is, beyond judicial reach in any
manner -- as it likewise implicitly but necessarily denies that
"within the jurisdiction" -- of the local boards -- is wholly
geographical.
MR. JUSTICE FRANKFURTER, concurring in result.
Although Congress, in 1940, and by reenactment since, provided
that, when a draft board determines whether a registrant is
entitled to exemption or deferment, the board's decision is
"final," the Court now concludes that such a decision is not final,
but may be reviewed when the registrant is tried before a jury for
willful disobedience of a board's order. Not only is such a result
opposed to the expressed will of Congress. It runs counter to the
achievement of the great object avowed by Congress in enacting this
legislation; it contradicts the settled practice under the
Selective Service Act, throughout the war years, recognized as such
by authoritative Congressional opinion; it reverses all the circuit
courts of appeals before whom the matter has come, constituting an
impressive body of decisions and expressing the views of more than
forty judges.
The case is this. Estep was a Jehovah's Witness. By virtue of
that fact, he claimed the protection of § 5(d) of the Selective
Training and Service Act of 1940 (54 Stat. 885, 888, 50 U.S.C. App.
§ 305(d)), which exempts from service "[r]egular or duly ordained
ministers of religion. . . ." His local board ruled against this
claim and classified Estep as I-A -- that is, available for
military service -- and ordered him to report for induction. He
reported and was accepted by the Navy, but refused to submit to
induction.
See Billings v. Truesdell, 321 U.
S. 542. This prosecution was then commenced under § 11
of the Act (54 Stat. 885, 894, 50 U.S.C. App. § 311). That section
makes it an offense for any person willfully to disobey
Page 327 U. S. 135
"any of the provisions of this Act, or the rules or regulations
made or directions given thereunder. . . ." Concededly, Estep
failed to carry out the order of the board to submit to induction.
Estep sought to defend disobedience on the ground that the local
board had improperly denied his claim of exemption from service in
that they refused to classify him as a "regular or duly ordained
minister of religion." He also offered in defense proof of alleged
misconduct by the board bearing on his right of appeal from the
board's decision. Disallowance of these defenses by the district
court, which, after conviction, were sustained by the Circuit Court
of Appeals, presents two issues for our consideration: I. Is the
decision of a local board denying a claim of exemption subject to
reconsideration in a criminal prosecution for knowingly failing to
discharge the duties required by the Act as a result of such
classification? II. Is action by the local board whereby a
registrant is cut off from the opportunities of a review within the
Selective Service process as authorized by the Act available as a
defense in such prosecution for disobedience of the local board's
order? These are questions of such moment in the enforcement of the
Selective Service Act as to call for an adequate statement of the
reasons that impel disagreement with the major conclusion of the
Court.
I
Did Congress place within the Selective Service System the
authority for determining who shall and who shall not serve in the
armed services, who shall and who shall not enjoy the exemptions
and deferments by which Congress has qualified the duty of all to
serve? Or did it leave such determination for reconsideration in
trials before juries of persons charged with willful disobedience
of duties defined by the Act? This is the crucial issue in the
case, and touches the very nerve center of the Selective Service
Act.
Page 327 U. S. 136
One would suppose that Congress expressed its will with the
utmost clarity, precluding the need of labored argumentation as to
its purpose. Section 10(a)(2) gives the answer.
"Such local boards, under rules and regulations prescribed by
the President, shall have power within their respective
jurisdictions to hear and determine, subject to the right of appeal
to the appeal boards herein authorized, all questions or claims
with respect to inclusion for, or exemption or deferment from,
training and service under this Act of all individuals within the
jurisdiction of such local boards. The decisions of such local
boards shall be final except where an appeal is authorized in
accordance with such rules and regulations as the President may
prescribed."
54 Stat. 885, 893; 50 U.S.C. App. § 310(a)(2).
These words can only mean what they appear to mean if they are
read as ordinary words should be read. Ordinary words should be
read with their common everyday meaning when they serve as
directions for ordinary people. If legislation was ever designed to
define the rights and duties of the vast body of ordinary people,
it is the Selective Service Act. One need not italicize "final" to
make final mean final when nowhere in the Act is there any
derogation of this Congressional command of finality to "the
decisions of such local boards," subject only to reviewability
within the Selective Service System.
But, if one goes beyond the meaning that the text spontaneously
yields, all other relevant considerations only confirm what the
text expresses. To allow judicial review of a board's decision on
classification is not to respect the context of purpose into which
a specific provision of a law is properly placed. To do so
disregards that purpose. And Congress did not rely on the public
understanding of the purpose that moved it in passing the Selective
Service Act, as well it might have, considering that the Act was
passed in September, 1940. It was explicit: "The Congress
Page 327 U. S. 137
hereby declares that it is imperative to increase and train the
personnel of the armed forces of the United States." § 1(a). 54
Stat. 885, 50 U.S.C. App. § 301(a).
There cannot have been many instances in our national life when
Congress stamped its legislation as "imperative." And history has
amply underscored the desperate urgency. Congress deemed it
imperative to secure a vast citizen army with the utmost
expedition. It did so with due regard for the individual interests
by giving ample opportunities, within the elaborate system which it
established, for supervision of the decisions of the multitudinous
draft boards on the selection of individuals for service. As to
such legislation, even were the language not explicit, every
provision of the Act should be construed to promote fulfillment of
the imperative need which inspired it. Surely it would hamper the
aim of Congress to subject the decisions of the selective process
in determining who is amenable to service to reconsideration by the
cumbersome process of trial by jury, admirably suited as that is
for the familiar controversies when the nation's life is not at
stake. To avoid such a palpable inroad upon Congressional purpose,
we need not draw on implications. We must merely resist unwarranted
implications to sterilize what Congress has expressly required.
In construing the Act, this Court has heretofore applied the
reasons which led Congress to rely wholly on the Selective Service
System in determining the rights of individuals. This is what we
said two years ago:
"To meet the need which it felt for mobilizing national manpower
in the shortest practicable period, Congress established a
machinery which it deemed efficient for inducting great numbers of
men into the armed forces. Careful provision was made for fair
administration of the Act's policies within the framework of the
selective service process."
We so ruled in
Falbo v. United States, 320 U.
S. 549,
320 U. S. 554.
That was a case in which we held that a challenge to a
Page 327 U. S. 138
local board's classification cannot be raised upon a trial like
the present for violation of the Court's order, where the
registrant disobeys the order before he is accepted for national
service. But the Congress made the decisions of the board "final"
without regard to the stage at which the registrant disobeys it.
The command of Congress makes the decision of the board no less
final after the registrant has submitted to the pre-induction
examination than before such submission. The finality of the board
is neither diminished, nor the authority of the courts to review
such decision enlarged, because a registrant flouts the Selective
Service process at an early or at a late stage. The language of the
statute is unqualified and all-inclusive:
"The decisions of such local boards shall be final except where
an appeal is authorized in accordance with such rules and
regulations as the President may prescribe."
Such has been the construction of more than forty judges in the
circuit courts of appeals. [
Footnote
3/1] The question raised by the facts of this case has come
before the Circuit Courts of Appeals for the First, the Second, the
Third, the Fourth, the Fifth, the Sixth, the Seventh, and the
Eighth
Page 327 U. S. 139
Circuits. All, eight of them, have ruled that judicial review of
a draft board classification is not available, in a criminal
prosecution, even though the registrant has submitted to the
pre-induction physical examination.
Sirski v. United
States, 145 F.2d 749;
United States v. Flakowicz, 146
F.2d 874;
United States v. Estep, 150 F.2d 768;
Smith
v. United States, 148 F.2d 288;
Koch v. United
States, 150 F.2d 762;
Fletcher v. United States, 129
F.2d 262;
Klopp v. United States, 148 F.2d 659;
United
States v. Rinko, 147 F.2d 1;
Gibson v. United States,
149 F.2d 751. [
Footnote 3/2] Such
was the impact of this Court's reasoning in the
Falbo case
that it greatly influenced the ruling of the Circuit Courts of
Appeals as to the finality of local board orders and practically
silenced whatever doubts may theretofore have been held by a few of
the judges.
That it was during the crucial war years that the Act was thus
interpreted and enforced, whereby the raising of the armed forces
was saved from obstruction by not subjecting the Selective Process
to judicial review when Congress forbade it, is, of course, no
reason for misconstruing
Page 327 U. S. 140
it now and relaxing the mode of administration which Congress
deemed necessary for its effectiveness.
Congress not only so willed, but those especially entrusted with
formulating this legislation were fully aware of the judicial
consequences of what it prescribed. This is shown by an
authoritative report of the House Committee on Military Affairs
when that Committee, the originator of the Act, was considering
amendments on renewal of the Act. In its report in January, 1945,
more than four years after the Act had been in operation, the
Committee thus stated with accuracy and acquiescence the unanimity
of judicial decisions in support of the respect by the judiciary of
finality of the decisions of the draft board:
"Under the Act as it is now written, registrants who are ordered
to submit to induction into the armed forces may not refuse and
defend such refusal in a criminal prosecution on the ground that
their classifications were not given fair consideration by their
boards. In order to obtain a judicial determination of such issues,
such registrants must first submit to induction and raise the issue
by habeas corpus."
H.R. Rep. No. 36, 79th Cong., 1st Sess. (1945) 4-5.
Congress wanted men to get into the army, not to litigate about
getting in. And so it legislated on the assumption that its
carefully devised scheme for determining within the Selective
Service System who was under duty to serve in the army would go
awry too seldom to justify allowance of review by the courts. If
challenges to such determination by the Selective Service System
were found baseless, as they were so found as a matter of
experience in all but a negligible number of instances, the men
having submitted to induction would be in the army, available as
such, and not in prison for disobedience. Accordingly, Congress
legislated to discourage obstruction and delay through dilatory
court proceedings that would
Page 327 U. S. 141
have been inevitable if judicial review of classification had
been afforded during the war years.
The Court finds support for its reading that "final" does not
mean final in the fact that not even at a time of our greatest
national emergency was the writ of habeas corpus withdrawn as the
ultimate safeguard of personal liberty.
See U.S.
Constitution, Art. I, § 9, cl. 2; 1 Stat. 81, as amended, 28 U.S.C.
§ 451. But this general right to question the entire want of a
legal foundation for a restraint is no measure of the issues that
Congress left open for determination in a jury trial for
disobedience of orders of the local draft boards made "final" by §
10(a)(2). Still less can it justify nullification of an explicit
direction by Congress that such orders shall finally be determined
within the framework of the Selective Service System. The issues in
a habeas corpus proceeding are quickly joined, strictly limited,
and swiftly disposed of by a single judge.
See 14 Stat.
385; 28 U.S.C. § 465. Habeas corpus proceedings are freed from the
cumbersomeness which is a proper price to pay for the
countervailing advantages of jury trials in appropriate situations.
Habeas corpus "comes in from the outside," after regular
proceedings formally defined by law have ended,
"not in subordination to the proceedings, and although every
form may have been preserved, opens the inquiry whether they have
been more than an empty shell."
Holmes, J., dissenting in
Frank v. Mangum, 237 U.
S. 309,
237 U. S. 346.
Habeas corpus, after conviction, could not, of course, serve as a
revisory process of the determination of classification which
Congress lodged with finality in the draft boards. It could only be
used in those hardly conceivable situations in which the
proceedings before the draft board were a mere sham, "nothing but
an empty form."
Ibid. The availability in such a remote
contingency of habeas corpus even after conviction is certainly no
reason for deflecting and confusing a trial for the simple issue
defined by § 11 --
Page 327 U. S. 142
namely, whether there was a willful disregard of an order made
by the Selective Service System, a system ranging from the local
board to the President. It is one thing for the writ of habeas
corpus to be available even though an administrative action may
otherwise be "final."
See e.g., Ng Fung Ho v. White,
259 U. S. 276. It
is quite another to interpolate judicial review, and thereby to
disrupt a whole scheme of legislation under which millions of
orders need promptly to be made and promptly to be respected, and
were therefore endowed with finality when sanctions for
disobedience are sought.
Another ground for denying the evident purpose of Congress and
disregarding the terms in which it expressed that purpose is the
suggestion that the validity of a classification goes to the
"jurisdiction of the board" to issue an order to report for
induction. But Congress did not say that "the decision of such
local boards when properly acting under their authority shall be
final." It said simply and unqualifiedly "the decisions of such
local boards shall be final." To be sure, local boards are given
power to act "within their respective jurisdictions." But all
agencies upon which Congress confers authority have such authority
impliedly only "within their respective jurisdictions." If that
inherent limitation opened the door to review of their action in
every enforcement proceeding despite provisions for finality, a
provision of finality is meaningless.
This argument revives, if indeed it does not multiply, all the
casuistic difficulties spawned by the doctrine of "jurisdictional
fact." In view of the criticism which that doctrine, as sponsored
by
Crowell v. Benson, 285 U. S. 22,
brought forth, and of the attritions of that case through later
decisions, one had supposed that the doctrine had earned a deserved
repose. In withholding judicial review in the situations with which
we are concerned, Congress was acting upon the conviction that it
was dealing with
Page 327 U. S. 143
matters which were more fittingly lodged in the exclusive
discretion of the Selective Service System. Even in cases of far
less exigency, Congress has chosen to act on such a view.
See,
e.g., Gray v. Powell, 314 U. S. 402;
Final Report of the Attorney General's Committee on Administrative
Procedure (1941) 86. But the short answer to any claim of
reviewability drawn from the confinement of the local boards to
action "within their respective jurisdictions" is that Congress was
concerned with geography, and not with law. Throughout this Act,
the term "jurisdiction" has this geographic connotation. Is it
reasonable to believe that Congress, bent on creating a vast armed
force as quickly as possible, would in effect authorize every order
of the Selective Service System to be reconsidered upon trials for
disregard of such orders? The Act does not differentiate between
the power of the board to allow exemptions and its power to grant
deferments. The boards were invested with final authority to
determine such matters subject only to such review as the Act
authorizes. When Congress talked about a board acting within its
jurisdiction, it meant that a registrant had submitted his papers
to a board either because he resided within its area or, for some
other relevant reason, had registered with it.
For five years, the circuit courts of appeals have construed §
10(a)(2) to mean that Congress established a system for organizing
a vast citizen's army the selection of which shall be in civilian
boards with such control over them as the President may formulate.
Designed obstruction of this means of meeting the great emergency
was made an offense. That the Congress had the Constitutional power
to do so needs no argument at this late date.
See Selective
Draft Law Cases, 245 U. S. 366;
Hirabayashi v. United States, 320 U. S.
81,
320 U. S. 93.
And yet the Court today holds that eight circuit courts of appeals
were wrong in reading the language of Congress as Congress wrote
it,
Page 327 U. S. 144
even though, in doing so, these courts were respectful of the
considerations that moved Congress to write the Act as it did in
order to raise that army. If this be so, not only were they wrong,
but probably hundreds of convictions for disobedience of local
board orders based on such regard for what Congress had written
were invalid.
II
Since Congress has made final the decision of a local board on a
claim of exemption, its decision as to exemption cannot be reopened
upon a trial for disobedience of the board's order. But Congress
also authorized an appeal from the local board to an appeal board,
and ultimately to the President. Congress has not given to the
local board authority to decide when such statutory rights of
appeal may be availed of, nor to make "final" unwarranted action by
a board whereby such appeal is frustrated.
Cf. Tung v. United
States, 142 F.2d 919. Accordingly, if a registrant does not
obey an order of induction because the board has cut off the
opportunity which the statutes gives him to appeal to higher
authority, his obligation of obedience has not yet matured.
Therefore, he has not failed to discharge his obligation under the
Act. The duty to obey is not merely a duty to obey an order of the
draft board, but to obey such an order after it is no longer
subject to review within the Selective Service System.
"The decisions of such local draft boards shall be final except
where an appeal is authorized in accordance with such rules and
regulations as the President may prescribe."
Estep made the claim that he was effectively denied the right to
appeal, in addition to his inadmissible defense that the local
board classified him improperly. He offered to prove that, for all
practical purposes, the local board frustrated his right to have
his case go to the appeal board, in violation of the board's duty
under the Act and the Regulations. Estep should have been allowed
to make
Page 327 U. S. 145
proof of this claim by appropriate motion to be disposed of by
the court. As in situations of comparable legal significance, a
trial court may, of course, leave controverted issues of fact to
the jury.
Another issue is presented by the petitioner in No. 66. The
indictment alleges a failure to report for induction. While the
petitioner did not report at the local board, as he was ordered to
do, he was forcibly taken to the induction center and went through
the pre-induction physical examination, but subsequently refused to
submit to induction. An order to report for induction, as we said
in
Billings v. Truesdell, "includes a command to submit to
induction." 321 U.S. at
321 U. S. 557;
United States v. Collura, 139 F.2d 345. There is, however,
basis for the petitioner's contention that the case was tried and
submitted to the jury on the theory that he failed to show up at
his local board. He substantially complied with that request by
being at the induction center for examination. The trial court's
charge is, at best, ambiguous. The court more than once apparently
charged not that he did not submit to induction, but that he failed
to appear voluntarily at the induction points. "A conviction ought
not to rest on an equivocal direction to the jury on a basic
issue."
Bollenbach v. United States, 326 U.
S. 607. On this ground, the conviction is properly
reversed.
[
Footnote 3/1]
This is a list of the judges:
First Circuit: Mahoney, Woodbury, Peters.
Second Circuit: Learned Hand, Swan, Augustus N. Hand,
Chase, Clark, Frank, Simons, Hutcheson (the last two sitting as
designated judges).
Third Circuit: Jones, Maris, Goodrich, McLaughlin,
Parker (the last sitting as a designated judge).
Fourth Circuit: Parker, Soper, Dobie, Northcott.
Fifth Circuit: Sibley, Hutcheson, Holmes, McCord,
Waller, Lee, Strum.
Sixth Circuit: Hicks, Simons, Hamilton, Martin.
Seventh Circuit: Evans, Sparks, Major, Kerner, Minton,
Lindley, Briggle.
Eighth Circuit: Sanborn, Woodrough, Thomas, Johnsen,
Riddick.
Since
Falbo, the only contrary views have been
expressed by Judges Biggs and Leahy, in the court below in No.
292.
[
Footnote 3/2]
See also United States v Kauten, 133 F.2d 703;
United States v. Nelson, 143 F.2d 584;
United States
v. Grieme, 128 F.2d 811;
United States v. Bowles, 131
F.2d 818,
aff'd on other grounds, 319 U. S. 319 U.S.
33;
Goodrich v. United States, 146 F.2d 265;
United
States v. Mroz, 136 F.2d 221;
United States v.
Messersmith, 138 F.2d 599;
United States v. Daily,
139 F.2d 7;
United States v. Sauler, 139 F.2d 173;
United States v. Van Den Berg, 139 F.2d 654;
United
States v. Fratrick, 140 F.2d 5;
United States v.
Baxter, 141 F.2d 359;
United States v. Domres, 142
F.2d 477;
Bronemann v. United States, 138 F.2d 333;
Van Bibber v. United States, 151 F.2d 444.
MR. JUSTICE BURTON, with whom MR. CHIEF JUSTICE STONE concurs,
dissenting.
THE CHIEF JUSTICE and I think that the judgment of conviction in
these cases should be affirmed, for reasons stated in
327 U.
S. JUSTICE FRANKFURTER's opinion.
We think that, under § 10(a)(2) of the Selective Service Act,
rightly construed, the registrant is required, on pain of criminal
penalties, to obey the Local Board's order to report for induction
into the armed forces, even though the Board's order or the action
of the Appeal Board on
Page 327 U. S. 146
which it is based, is erroneous. "In order to obtain a judicial
determination of such issues, such registrants must first submit to
induction and raise the issues by habeas corpus." H.Rep. No. 36,
79th Cong., 1st Sess. (1945) 4. It follows that, if the registrant
is indicted for disobedience of the Board's order, he cannot defend
on the ground that the draft procedure has not been complied with
or, if convicted, secure his release on that ground by resort to
habeas corpus. The result is that such relief is open to him only
if he obeys the order and submits to induction, when he is free to
seek habeas corpus.
We do not find in the record of either case sufficient basis for
reversal thereof on the grounds suggested in
327 U.
S. JUSTICE FRANKFURTER's opinion.