Estep v. United States
Opinion of the Court
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.
Estep’s local board classified him as I-A, i. e., as available for military service.
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
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
By the terms of the Act Congress enlisted the aid of the federal courts only for enforcement purposes. Sec. 11 makes criminal a wilful 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. 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.
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 would 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 defer.se 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
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
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.
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
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.
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.
Selective Service Regulations, 622.11.
Id., 622.44.
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).
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.
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 . . .”
Thus by §5 (c) (1) specified classes of public officials were deferred from training and service while holding their offices.
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.
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.”
See cases cited ip note 14, infra.
622.42 provides, “In Class IV-B shall be placed any registrant” who holds specified offices. (Italics added.)
“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.
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.
That is tbe 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; Mahler v. Eby, 264 U. S. 32; U. S. 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.
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 (C. C. A. 3d, 1944). 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 (C. C. A. 5th, 1942); United States v. Rinko, 147 F. 2d 1 (C. C. A. 7th, 1945); Gibson v. United States, 149 F. 2d 751 (C. C. A. 8th, 1945); Koch v. United States, 150 F. 2d 762 (C.C. A. 4th, 1945).
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. 8Í1.
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, note 16, p. 814, 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. 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, p. 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 ip the Falbo case, his petition for a writ of habeas corpus was denied. 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 addi
Concurring Opinion
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 sanc
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. 549, 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 wilfully 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 wilful 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
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 effect. A contrary result certainly is not dictated by the fact that the Act makes local board decisions “final,” subject to the
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
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.
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 non-existent 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 oppor
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.
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.
Concurring Opinion
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.
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, 460, dissenting opinion,
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.
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, 545-546; cf. the Selective Draft Law Cases, 245 U. S. 366.
And see the authorities- cited in the Court’s opinion, 321 U. S. at 433,435. 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.
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.
Concurring Opinion
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 wilful disobediénce 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 Sélective 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 “Regular 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, 32.1 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 wilfully to disobey
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 sháll 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 wilful 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;
“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 únder 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 áuch rules and regulations as the President may prescribe.” 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. Tt was explicit: “the Con
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 thé 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 that 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, 554. That was a case in which we held that a challenge to a
Such has been the construction of more than forty judges in the circuit courts of appeals.
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 misconstru
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 refusals 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
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 entiré 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 ah empty shell.” Holmes, J., dissenting in Frank v. Mangum, 237 U. S. 309, 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,
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 cías-, sification 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
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, 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,
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 (C. C. A. 1st, 1944). Accordingly, if a registrant does not obey an order of induction because the board has cut off the opportunity which the statute 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 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
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 557; United States v. Collura, 139 F. 2d 345 (C. C. A. 2d, 1943). 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.
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.
See, also, United States v. Kauten, 133 F. 2d 703 (C. C. A. 2d, 1943) ; United States v. Nelson, 143 F. 2d 584 (C. C. A. 2d, 1944); United States v. Grieme, 128 F. 2d 811 (C. C. A. 3d, 1942); United States v. Bowles, 131 F. 2d 818 (C. C. A. 3d, 1942), aff’d on other grounds, 319 U. S. 33; Goodrich v. United States, 146 F. 2d 265 (C. C. A. 5th, 1944); United States v. Mroz, 136 F. 2d 221 (C. C. A. 7th, 1943); United States v. Messersmith, 138 F. 2d 599 (C. C. A. 7th, 1943); United States v. Daily, 139 F. 2d 7 (C. C. A. 7th, 1943); United States v. Sauler, 139 F. 2d 173 (C. C. A. 7th, 1944); United States v. Van Den Berg, 139 F. 2d 654 (C. C. A. 7th, 1944); United States v. Fratrick, 140 F. 2d 5 (C. C. A. 7th, 1944); United States v. Baxter, 141 F. 2d 359 (C. C. A. 7th, 1944); United States v. Domres, 142 F. 2d 477 (C. C. A. 7th, 1944); Bronemann v. United States, 138 F. 2d 333 (C. C. A. 8th, 1943); Van Bibber v. United States, 151 F. 2d 444 (C. C. A. 8th, 1945).
Concurring Opinion
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 Part I of Mr. 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
We do not find in the record of either case sufficient basis 'for reversal thereof on the grounds suggested in Part II of Me. Justice Frankfurter’s opinion.
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