This is a petition for a writ of habeas corpus on behalf of Frederick U. Reel. After registration under the Selective Training and Service Act, 50 U.S.C.A. Ap
The hearing officer reported to the appeal board that the registrant was born at Milwaukee, Wisconsin, on December 23, 1916, had received a B. A. degree and taken three years of law at the University of Wisconsin, and was at the time of the hearing employed as an attorney in the Department of Labor, that he did not belong to any religious sect or organization, but said that he believed it “wrong to participate, either directly or indirectly, in the conduct of war, or in any other activity intended to destroy human lives”; and further stated that his belief had come about through “study of the war of 1914-T8— causes and results; the study of European and American history; the teachings of my father; certain books—primarily ‘Labels’ by A. Hamilton Gibbs—which I read while in the upper grades, and lectures by Rev. John Haynes Holmes, primarily ‘The Unknown Soldier Speaks’ which I read when in high school.”
The hearing officer also referred to a speech the relator had made in March 1936 while a student at the University of Wisconsin, which contained an ardent presentation of his objections to war. The hearing officer also reported that he had told the relator “that there seemed to be no religious basis” for the latter’s “views”. The hearing officer further said in his report:
“This registrant is intelligent, well-educated and a real pacifist since his college days. There can be no doubt as to the sincerity of his opposition to war. The question in the case is whether it is by reason of religious training and belief. He denies any belief in a Deity, except in so far as there may be a moral force in the Universe. No reference to the latter appears in his original papers but was advanced by him at the hearing in the course of a discussion of the necessity for a religious training and belief as a basis for exemption. The witness Frank, who is registrant’s first cousin and a highly intelligent person, stated both to the agent and at the hearing that registrant’s view was that of a philosophical humanitarian. Mr. Frank added the view that this philosophy came so close to a religion that it might very well be a substitute for it. This statement perhaps epitomizes the question in the case.
“As the hearing officer understands humanitarianism, it is the view that mankind is sufficient to itself, that it owes no obligation to any power except humankind and that it may achieve perfection in and of itself without the interposition of any Deity or supernatural power. As this hearing officer has said in other opinions, he is of the view that ‘a religious belief’ necessarily , connotes some concept of Deity. Freedom of religion means the freedom to worship. To the man on the street, the word ‘religious’ obviously means something connected with the Church or with worship. This is exemplified in this particular case by the repeated statements of witnesses that this registrant is not ‘religious’. Among scholars the word ‘religion’ certainly involves Deity and worship. Polytheism, monotheism, primitive religion, higher religion, ethical religions, universal religions are all terms used by scholars in discussing man’s beliefs as to supernatural power and the relationship of humankind to such power. ‘Ethical’ and ‘religious’ are not synonymous terms. The word ‘worship’ describes an attitude toward a power or a person; not used to describe devotion to an idea.
“Moreover, it seems clear to this hearing officer that Congress did not intend to exempt from military service every person who thinks that war is wrong. Most people believe that war is wrong. But leaving out the supernatural, the question whether to war or not to war depends upon a relative weighing of the wrong of war as against the evil results of not warring. So far as that is a sociological, political, ethical or merely moral question, Congress, as
“This exemption was intended by Congress as an acknowledgment of the right of an individual to believe that a supernatural power, superior to the civil state, might decree that an individual refuse military service, even in the face of the necessities of the civil state for such service. Congress did not mean by this exemption to permit any person who feels merely as a matter of sociology or of philosophy or of human relationship that war is wrong, or ¿hat he dislikes the idea of killing a fellow human being, to escape military service.
“Upon the foregoing bases, the hearing officer recommends that this registrant be denied exemption. Even though he be a sincere philosophic humanitarian, which may be regarded as a sociological concept of the highest order, nevertheless his conviction does not come within either the terms or the intent of the statute. If the Appeal Board, or other reviewing authority, be of a different opinion as to the meaning and intent of the statute, and if the scope of the statute be any broader than the meaning hereinabove indicated, this registrant should be exempted.
“There are one or two minor items which may enter into consideration of this case. Registrant, being a graduate and practising lawyer, has taken the oath of office as a Federal employee. While, under the ruling on appeal to the President in the Vickery case, this is not conclusive, it may be considered an element. In addition to his conscientious objection, this registrant also claimed exemption on three other grounds, namely, his occupation, a claim to physical defect, and the dependency of his mother. # ‡ sfe %
“It is recommended that the appeal of the registrant based upon grounds of conscientious objection be not sustained.”
It is evident from the foregoing that the hearing officer, though referring at the end of his report to certain considerations which militate against the claim that the relator is a conscientious objector, placed his decision upon the ground that relator was not a conscientious objector because his opposition to war was based on humanitarian considerations and not on any obligation to a Deity or supernatural power. In other words, he reached a conclusion as a matter of law which was directly opposed to our decision in United States v. Kauten, 2 Cir.,
If, in affirming the action of the local board, the board of appeal and General Hershey, the Director of Selective Service acting for the President pursuant to Executive Order Dec. 23, 1940, No. 8619, adopted the findings of fact of the hearing officer, the relator should have been classified as a conscientious objector. In that event the writ of habeas corpus should have been sustained and the relator remanded for a reclassification. Indeed this was expressly admitted by the hearing officer for he said if the “reviewing authority, be of a different opinion as to the meaning and intent of the statute, and if the scope of the statute be any broader than the meaning hereinabove indicated, this registrant should be exempted.”
The record presented is such that we cannot say whether either the appeal board or General Hershey adopted the findings of the hearing officer, or rejected the claim of the relator on the ground that the proof which he adduced failed to show that he objected “to participation in any war under any circumstances” because of the compelling voice of his conscience. They may have decided that his objections were not genuine, or they may have decided that they were genuine but not prompted by a belief that they were required by God’s commands.
It is provided in U.S.C.A. Title 50 Appendix, Sec. 305(g) that: “The appeal board shall give consideration to but shall not be bound to follow the recommendation of the Department of Justice together with the record on appeal from the local board
In United States ex rel. Brandon v. Downer, 2 Cir.,
The fact that the appeal board and the Director of Selective Service affirmed the action of the local board does not, we think, show, as the government contends, that they rejected the findings of fact of the hearing officer. Yet, if they accepted such findings, there was no basis for not holding the relator exempt.
The decision in Bowles v. United States,
We think that the machinery set up by the statute and regulations for advice to the appellate tribunals by the Department of Justice, through the agency of the hearing officer, ought to be available to clarify the result on appeal, though not, of course to control it. The procedure which we deem the proper one is in no sense burdensome. There will be no need of any findings or opinion, unless the appellate tribunals should find it simpler and more desirable to render specific findings of their own. It will require nothing more than an indication as to whether they accept or reject the findings of the hearing officer. With such information any court called upon to pass on the regularity of the proceedings can know how far the appellate tribunals could have been affected in any respect by a report of the hearing officer which was not, as in the present case, in conformity with the statute. It seems to us highly undesirable that a litigant should be given a grievance based upon an erroneous interpretation of the law by the hearing officer which the appellate tribunals were bound to consider, even though not bound to follow.
The relator can only secure exemption if it is found that the Director of Selective Service has held that he objected to “participation in any war under any circumstances because of the compelling voice of his conscience.” It is not estab-
For the foregoing reasons the order of the District Court is reversed and the proceeding remanded to the District Court with directions to proceed in conformity with this opinion.