The opinion of the court was delivered by: MEANEY
These are criminal prosecutions for unlawfully, knowingly and wilfully refusing to perform civilian work contributing to the maintenance of the national health, safety and interest in lieu of induction into the Armed Forces of the United States.
The defendants, Harry Lebherz, Lucian J. Slirzewski, Charles W. Erlenmeyer and George David Passione, Jr., were separately indicted and charged with violating Title 50 U.S.C.A.Appendix, § 462.
Title 50 U.S.C.A.Appendix, § 456(j), provides in part as follows:
'* * * Any person claiming exemption from combatant training and service because of such conscientious objections whose claim is sustained by the local board shall, * * * if he is found to be conscientiously opposed to participation in * * * noncombatant service, in lieu of such induction, be ordered by his local board, subject to such regulations as the President may prescribe, to perform for a period equal to the period prescribed in section 4(b) (section 454(b) of this Appendix) such civilian work contributing to the maintenance of the national health, safety, or interest as the local board may deem appropriate * * *.'
In accordance with the statute, Section 1660.1 of the Selective Service Regulations was promulgated, which defines civilian work in lieu of induction into the Armed Forces. This section, which will be quoted later, provides generally that any civilian work which contributes to the 'maintenance of the national health, safety, or interest' is appropriate if it is employment 'by a nonprofit organization, association, or corporation which is primarily engaged either in a charitable activity conducted for the benefit of the general public or in carrying out a program for the improvement of the public health or welfare * * *.' Of these four defendants, Slirzewski and Erlenmeyer were directed to report to state hospitals, while defendants Passione and Lebherz were assigned to county hospitals.
Each of those defendants was separately tried and each waived his right to trial by jury as provided by Rule 23(a) of the Federal Rules of Criminal Procedure, 18 U.S.C. Additionally, it was stipulated by counsel, with the consent of each defendant, that the draft board file was to be considered authentic and that photostatic copies could be substituted therefor in evidence. It was also agreed that each defendant failed to comply with the civilian work order.
At the outset this court shall consider each factual situation separately. There will then be a general discussion of the applicable law as this court finds it, since the legal questions involved in each case are the same.
Harry Lebherz was classified I-O (conscientious objector) by the State Appeal Board on May 27, 1952. He accordingly was directed by Local Board #14 with which he was registered, to report for assignment to hospital work at the Essex County Sanatorium, Verona, New Jersey, on September 8, 1953. This he refused to do on the ground that he properly should have been classified IV-D, a minister, and thus was not subject to the provisions of the Selective Service Act with respect to conscientious objectors.
Counsel agreed that Lebherz took all the appeals that were available to him under the Selective Service System, and exhausted and completed all his administrative remedies prior to receiving the order to report for assignment to civilian work.
Counsel for Lebherz argues that he should be acquitted for the following reasons:
'1. The denial of his claim for exemption as a minister of religion by the draft board is without basis in fact, arbitrary, capricious and contrary to law.
The validity of the order to report for assignment to civilian work is also contested on constitutional grounds and because of alleged variance between the statutes and the order issued thereunder. This will be discussed later in connection with the other three defendants.
In order to determine the first two contentions of the defendant, the Selective Service System file must be analyzed. In his classification questionnaire of October 2, 1950 the defendant stated that he had been a minister of Jehovah's Witnesses since August, 1943. He stated further that he had been ordained according to the tenets of that faith and requested a IV-D classification (ministerial). The questionnaire also reveals his employment as a leather seasoner working 40 hours a week at an average weekly compensation of $ 53. On October 9, 1950 Lebherz filed SSS Form 150, the Special Form for Conscientious Objector. He added to this form the following notation:
I have filled this form out Not as as conscientious objector, but have done so in order to further give you proof on my standing concerning participation in warfare and my ministerial status.'
It would appear that Mr. Lebherz filled out this form primarily to assert his ministerial status. This Form 150 contains information furnished by the defendant showing the defendant's parents to be Jehovah's Witnesses, and alleging activity by him in furthering the teachings of his religion. The defendant also stated that he was a leather worker but that this employment did not in any way hinder his 'ministerial work.' On May 1, 1951 the local board classified Lebherz I-A. On May 11, 1951 the local board received a letter from the registrant asking, in effect, for a reconsideration of his classification. The board refused to change the classification and so notified the defendant. It also informed him that the matter would be submitted to an appeal board after his physical examination was taken. On October 17, 1951 the defendant's file was forwarded to the State Appeal Board. He personally appeared, on February 14, 1952, before a Department of Justice hearing officer. Subsequent to this interview the State Appeal Board classified Lebherz I-O. The defendant appeared before the local board again on November 18, 1952, as an effort was made to reach an agreement with him as to appropriate civilian work in lieu of military service. No agreement having been reached, Local Board #14 ordered him to report to the Essex County Sanatorium.
We may at this juncture dispose of the second of the defendant's contentions which alleges a procedural violation of due process in that the defendant was not advised that the information he submitted to his local board did not warrant the reopening of his classification after he was classified I-A by the local board, in violation of 1625.4 of the Selective Service Regulations. We do not find this to be the case. The defendant was properly advised after he wrote the local board. Moreover, he was granted an appeal by the local board and was reclassified I-O by the State Appeal Board. He was properly informed of this new classification.
The problem now, in so far as Lebherz is concerned, relates to whether or not in fact he was entitled to a ministerial classification, and whether the work order directing him to the Essex County Sanatorium was constitutional, or was not in accord with the ...