143 F.2d 633 | D.C. Cir. | 1944
Lead Opinion
Section 11 of the Selective Training and Service Act
The following facts are undisputed: (1) Appellant’s local Selective Service Board •in the District of Columbia issued an order which directed him to report for induction ;
In Falbo, v. United States,
The'only distinction between the Falbo casé and the present ofte lies' in the. reasons asserted to show invalidity of the local board’s order. In the Falbo case the reason asserted was’ that the local board's order followed, an erroneous classification made by it. In’the present case the reason asserted is - that' the-'local board’s order followed a. classification erroneously made by a non-civilian appeals agency, hence that appellant’s appeal to the President was still pending and the board wps prohibited from issuing its order, to report.
It is contended, also, that denial to appellant of this defense resulted in an unconstitutional deprivation of judicial due process. This argument was made and rejected in the Falbo case.
The law knows a number of situations in which, even in peacetime, the duty of the citizen to cooperate in effective law enforcement overrides his convenience. Thus, it is his duty to submit to arrest, upon a warrant valid on its face, even though the warrant may turn out later to be invalid.
ly accused of crime may, nevertheless, be subjected to extradition if the indictment and requisition are in proper form.
In view of our rejection of appellant’s first contention, it is not necessary to consider his second .and third. However, it may he noted that our conclusion ■ is strengthened in this respect by the decision of the Supreme Court in Bowles v. United States.
Affirmed.
Act of September 16, 1940, 54 Stat. 894, 50 U.S.C.A. Appendix, § 311: “Any person * * * who * * * evades registration or service in the land or naval forces or any of the requirements of this Act * * * or who in any manner 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 fj>.l0,000, or by both such fine and imprisonment $ $ $ ”
See Selective Service Regulations, Nos. 633.1 et seq.
320 U.S. 549, 554, 64 S.Ct. 346, 348.
Falbo v. United States, 320 U.S. 549, 554, 555, 64 S.Ct. 346, 349.
Selective' Service Regulations, No: 628.7......
Falbo v. United. States, 320 U.S. 549, 554, 64 S.Ct. 346.
293 U.S. 388, 432, 55 S.Ct. 241, 253, 79 L.Ed. 446: “It is a wholesome and necessary principle that such an agency must pursue the procedure and rules enjoined, and show a substantial compliance therewith to give validity to its action. When, therefore, such an administrative agency is required as a condition .precedent, to .an order, to make‘a finding of facts,' the validity of the order must rest upon the needed finding. If it is lacking, the order is ineffective.” There was no such requirement in the present case.
260 U.S. 48, 59, 43 S.Ct. 51, 67 L. Ed. 124.
Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288; Morgan v. United States, 304 U.S. 1, 58 S.Ct 773, 82 L.Ed. 1129; United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429.
Falbo v. United States, 320 U.S. 549, 557, 64 S.Ct. 346, 350. In his dissenting opinion, Mr. Justice Murphy said: “The 'power to administer complete justice and to consider all reasonable pleas and defenses must be presumed in the
321 U.S. 542, 64 S.Ct. 737.
See generally, Perkins, The Law of Arrest, 25 Iowa L.Bev. 201; Barrett v. United States, 62 App.D.C. 25, 26, 64 F.2d 148, 149: “In other words, if the officer has reason to believe that the person he is about to arrest is a desperate character and acts accordingly, the officer is not to be convicted of assault because it subsequently develops that he was mistaken.” United States v. Rice, C.C., 27 Fed.Cas. 795, No. 16,-153; United States v. Thompson, 28 Fed.Cas. 89, No. 16,484; Reilly v. United States Fidelity & Guaranty Co., 9 Cir., 15 F.2d 314; Erskino v. Hohnbach, 14 Wall. 613, 616, 20 L.Ed. 745. See Matthews v. Densmore, 109 U.S. 216, 219, 3 S.Ct. 126, 27 L.Ed. 912; Hofschulte v. Doe, C.C.N.D.Cal., 78 F. 436, 442; Snyder v. Hausheer, 8 Cir., 268 F. 776, 780; Bohri v. Barnett, 7 Cir., 144 F. 389.
18 U.S.C.A. § 245; D.C.Code 1940, § 33 — 414(n). Under such circumstances the arresting officer may use sufficient force to prevent escape, in some cases even to the extent of killing, 'the person who resists arrest. Stinnett v. Virginia, 4 Cir., 55 F.2d 644, 646, 647; United States v. Rice, 27 Fed.Cas. 795, No. 16,153.
18 U.S.C.A. § 753h.
Aderhold v. Soileau, 5 Cir., 67 F.2d 259.
Munsey v. Clough, 196 U.S. 364, 373, 25 S.Ct. 282, 49 L.Ed. 515; Hogan v.. O’Neill, 255 U.S. 52, 55, 41 S.Ct. 222, 65 L.Ed. 497; 18 U.S.C.A. §§ 652, 662., See Marbles v. Creecy, 215 U.S. 63, 67, 30 S.Ct. 32, 54 L.Ed. 92.
18 U.S.C.A. § 408e.
319 U.S. 33, 63 S.Ct. 912, 87 L.Ed. 1194.
Selective Training and Service Act 1940, 54 Stat. 893, 50 U:S.C.A.Appendix, § 310(a)(2).
Cf. United States v. George S. Bush & Co., Inc., 310 U.S. 371, 379, 380, 60 S.Ct. 944, 946, 84 L.Ed. 1259: “Since its creation in 1916 the Commission has acted as an adviser to the Congress -or to the President.' Under § 336 of the Act of 1930 [19 U.S.C.A. § 1336] the Commission serves the President in that role. It does not increase or decrease the rates of duty; it is but the expert body -which investigates and submits the facts and its recommendations to the President. It is the judgment of the President on those facts which is determinative of whether or not the rec-'ommended '.rates will be promulgated. * * * And the judgment of the President that on the facts, adduced in pursuance of the procedure prescribed by Congress,- a change of " rate is necessary is no more subject to judicial review under this statutory scheme than if Congress itself had exercised that judgment. It has long been held that where Congress has authorized a public officer to take some specified legislative action when in his judgment that action is necessary or appropriate to carry out the policy of Congress, the judgment of the officer as to the existence of the facts calling for that action is not subject to review.” Employers Group of Motor Freight Carriers, Inc., v. National War Labor Board, 79 U.S.App.D.C. —., 143 F.2d 145.
Bowles v. United States, 319 U.S.785, 63 S.Ct. 1323, 87 L.Ed. 1728.
Dissenting Opinion
(dissenting).
Appellant was indicted and found guilty of a violation of the.Selective Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq. On the 16th of October, 1940, he registered in the District of Columbia and on March 6, 1941, was classified 1-A by his Local Board. Within the required time thereafter he appealed to the District of Columbia Appeal Board, claiming to be a conscientious objector, His claim in this respect was transmitted to the Department of Justice, in accordance with regulations, and referred by the Department to Mr. E. Barrett Prettyman as hearing officer. In due time the latter, though recognizing that Giese was sincerely and aggressively opposed to war, recommended against allowance of the claim on the theory that Congress did not intend to authorize exemption unless, — as was not true in Giese’scase — the objection was based on religious training and belief. As the result, the Appeal Board affirmed the Local Board classification. Thereafter Giese, under Regulation 628.1,
“Appeal No. 17448
“Appeal to the President of the United States
“Under the Provisions of the Selective Service "Regulations District of Columbia, Board of Appeal No. 1, Local Board No. 2, District of Columbia. Registrant: Willis Erie Giese. Order No. 398. Classification-on Appeal to the President: Class 1-A. “This, the 19th day of February 1943. “By Authority of the President
“(S) Lewis B. Hershey, Director.”
Giese was notified of the President’s classification on February 24, 1943, and on February 25th following was notified by Draft Board No. 2 to report for induction on March 10th. He refused to report and wás indicted. On his trial, a jury being waived, General Hershey by stipulation of counsel testified that he was Director of Selective Service at the time of Giese’s appeal to the President, and that he was at that time also an officer of the United States Army on active duty assigned to Selective Service; that the appeal was
Counsel for Giese thereupon moved the court to find him not guilty, upon the ground that the United States had failed to prove that he had violated any lawful order to report for induction. The ground of the motion was that the evidence showed that Giese was classified as 1-A by an agency of appeal not composed of civilians, in violation of the Selective Service Act, and hence that he had never been classified according to law, and consequently the order to report was without any foundation of support. The District Court overruled the motion and found Giese guilty and this appeal followed. The argument here is that since General Hershey, an officer of the Army, was the agency of appeal which classified Giese as 1-A, the classification was unlawful and his appeal, consequently, undisposed of, as a result of which the proceedings taken thereafter, including the order of induction issued by the Local Board, were altogether void and of no effect.
So far as I am advised, the question is new,
By Section 10(a) of the Act, the President is authorized “to prescribe the necessary rules and regulations to carry out the provisions,” and to this end to establish within the System “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.” But the Act itself (Sec. 10(a) (2) expressly requires that both appeal boards and agencies of appeal shall be composed of civilians who-are citizens of the United States, and paragraph 3, authorizing the President to employ active or retired officers of the Army, Navy, Marine Corps or Coast Guard in carrying out the provisions of the Act, excepts from the positions in which they may be so used “local boards, appeal boards, or agencies of appeal established or created pursuant to” the Act. Plainer words could hardly be found than are contained in these paragraphs to show that all appeals in all stages of the appeal must, except when the President acts personally, be determined by civilian citizens and not by the Army.
The President, as he had the right to do, authorized under certain conditions, an appeal to himself from a determination of
And in the Bowles case, supra, the Supreme Court recognized these regulations as creating a de novo proceeding, as.á result of which the acts of the local board and the State board are superseded and the final outcome made to depend upon the action of the President thro.ugh the 'agency constituted by him' to act for him. In consequence of this the classification originally made by¡ the-local board falls and' a new classification must be made- by the President.- This appears to-be the:method which has been recognized and applied by the Selective Service throughout.
From all,of this it would seem to follow that if in the present instance the agency designated by the President to consider the appeal made to him is the “agency of appeal” described in Section 10(a) (2) of the Act, then by the very terms of the Act, it can be constituted only of civilians who are citizens of the United States. That it is such an agency of appeal seems too clear for argument, for,’ as we have seen, the Act contemplates the establishment of civilian local boards, appeal boards and agencies of appeal as the entire machinery covering the field of induction of citizens into the - armed services. That this is correct is confirmed by the fact that after the indictment in this case and after General Hershey had been subpoenaed as a witness, ' Section 10 of the Act was amended so as-thereafter to require civilian personnel only on local boards and State boards of appeal, and the Report of the House Committee
The Supreme. Court has not hesitated to set aside a conviction in a case in which it was shown that the jury was constituted in part of" persons not qualified to perform jury service. Crawford v. United States, 212 U.S. 183, 29 S.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392. Nor has the Supreme Court hesitated to reverse a conviction obtained on an indictment found by a Grand Jury in communities from which negroes were systematically excluded, for the reason
I am accordingly of opinion that Giese was at all times prior to his indictment entitled to have his appeal submitted to an appeals agency composed of civilians, and that his classification for induction in the Army by General Hershey was contrary to the terms of the Act and the regulations, and consequently the induction order of the Local Board was illegal and imposed no obligation, and his refusal to obey constituted no violation of the law.
The view I have taken of the scope and effect of the Falbo case is, I think, supported by the view expressed of that case by the First Circuit in Chih Chung Tung v. United States, 142 F,2d 919, which I have just seen. And the reasoning and logic of that decision, in my view, definitely support the conclusions in this dissent.
628.1 (a) “When either the State Director of Selective Service or the Director of Selective Service deems it to. be in the national interest or necessary to avoid any injustice, he may appeal to the President from any determination of a board of appeal. He may take such an appeal at any time.” •
A kindred question arose in Bowles v. United States, 319 U.S. 33, 63 S.Ct. 912, 87 L.Ed. 1194, but was not passed on by the Court because other grounds requiring affirmance were found.
628.7 of the Regulations .provides: “Appeal to the President stays induction. The local board shall not issue an order for a
Reg. 678.
Report No. 787, H.R. 78th Congress, First Session.