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United States v. Nichols.

decided: September 18, 1945.

UNITED STATES EX REL. BODENSTEIN
v.
NICHOLS.



Author: Waller

Before BIGGS, WALLER, and McLAUGHLIN, Circuit Judges.

WALLER, Circuit Judge.

Appellant, asserting that he is concientiously opposed to war or to rendering any noncombatant service that would release another for the military defense of his country, was classified by his Local Board in IV-E.He was married in 1937, but no child was born of that marriage until the breath of the Draft Board was blowing hot on the back of his neck. A daughter was born to the couple on January 14, 1943, after which he sought a reclassification, or an additional classification, in III-D, meanwhile refusing to waive his classification in IV-E as a conscientious objector. [App. 48.] Before reporting to a civilian work camp near Kane, Pennsylvania, he advised his Local Board of the birth of his daughter and asserted that a case of extreme hardship to his allegedly dependent wife and child, as contemplated by Selective Service Regulation 622.32, would result if he were taken. He appeared before the Board in support of this contention and asserted further: (a) That he was the sole support of his family; (b) that the combined assets of himself and wife were about $200 in cash, $300 in a secondhand car, and $50 in stock, and that he owned no real estate or bonds; (c) that his wife's mother was a seventy-year-old deaf mute and could not take care of the baby; (d) that the wife's father was dead; (e) that his wife's sister was employed; (f) that his parents lived in another state. Before the process of bearing a child became too advanced his wife had been a stenographer for Lawyers Co-Operative Publishing Company in Rochester, New York, where appellant resided.

The record before us seems incomplete, but it definitely reveals that the Board gave him one or more hearings, received and understood his contentions, and declined to reclassify him in Class III-D. The Appeal Board refused to disturb his classification, and a request to the Director of Selective Service for an appeal to the President was determined by the Director to be unwarranted.

After reporting to the Civilian Public Service Camp at Kane, Pennsylvania, appellant brought habeas corpus proceedings against the Director of that camp, seeking a release and a reclassification in Class III-D. This appeal results from an adverse order of the Court below, wherein it stated: "It is our opinion that relator was legally classified as a conscientious objector, Class 4-E. He testified in court that he was a conscientious objector. We do not see how he can be lawfully classified in 3-D."

If the lower Court meant to hold that a III-D dependency classification was not available to a conscientious objector it was in error. See "Selective Service as the Tide of War Turns," page 178,*fn1 where the following is found: The objector, like all other registrants, may be entitled to deferment on the grounds of occupation or dependency, and until or unless such deferment is canceled, the issue would not be raised. The objector receives the same treatment as all other registrants."

We take that to mean that a conscientious objector, who is eligible to a Class III-D deferment, would first receive such a classification and that the issue of his conscientious objections would not be raised until and unless the III-D classification was canceled.

But our holding that a conscientious objector may be put in Class III-D does not dispose of this case, for even if the lower Court were wrong in the reason assigned, the judgment, nevertheless, should be affirmed, because the record wholly fails to show that the Local Board acted arbitrarily, or capriciously, or in excess of its jurisdiction and power, and the burden of showing this was affirmatively on the appellant.

He not only failed to carry this burden but his own statements show that he was accorded full consideration by the Board. On March 4 he wrote it, stating: "Thank you for your courtesy and patience in my interview last night. I was much impressed by the manner in which you carried out the duties of what is obviously a difficult and often thankless task."

In his appeal from the order of the Local Board refusing to reclassify him, he wrote: "In making this appeal, no reflection on the ability or integrity of the local Draft Board is intended, but no group of men, particularly when dealing with human equations, are free from error and I believe an error has been made in this case."

In his letter of June 30, 1943, he wrote the Local Board: "I deeply appreciate the fact that my religious convictions regarding violence and war have been recognized."

The November 3, 1943, minutes of the Local Board show the following:

"1328-Shirley Bodenstein appeared before the board on Nov 3rd. He still thinks he should be classed as a 3D - his wife would have to accept relief from some church agency. Feels the board has given him every consideration on the 4E angle but ...


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