The opinion of the court was delivered by: Platt, District Judge.
An indictment was returned by the grand jury against Kenneth
Dale Kinney for failing to report for civilian work contributing
to the maintenance of the national health, safety or interest, at
the Elgin State Hospital, Elgin, Illinois, pursuant to the order
of his draft board, in violation of Section 462, Title
50 U.S.C.A.Appendix. Mr. Kinney waived jury trial in accordance with
Rule 23(a) of Fed.Rules Crim.Proc., 18 U.S.C.A. He waived any
question of venue and stipulated that the selective service file
should be considered in evidence.
Mr. Kinney maintains that he should be found not guilty for the
1. The local board and appeal board erred in failing to
classify him 4-D, and there was no basis in fact for the denial
of a ministerial exemption.
2. The board erred in failing to "consider anew," as required
by regulation 1625 upon request for hearing in writing.
3. That the board failed to decide whether or not the defendant
was entitled to the 4-D classification.
4. The order of the local board for the defendant to perform
civilian work at the state hospital and Sections 1660.1 and
1660.20 of the Selective Service Regulations are in conflict with
the Act, because the work is not national or federal work, as
required by the Universal Military Training and Service Act,
50 U.S.C.A.Appendix, § 451 et seq.
5. The Act, as construed and applied by the regulations and the
order, calls for a private non-federal labor draft for the
performance of services that are not "exceptional" or related to
the National Defense in violation of the Thirteenth Amendment to
the Constitution of the United States.
In order to determine the merit of the first three reasons for
acquittal it is necessary to examine the evidence disclosed by
the selective service file. The first questionnaire received by
the local board on November 20, 1950 stated Mr. Kinney was a
minister of religion since July 17, 1948, and he had been
ordained on that date. He listed his secular work as a cement
finisher for the past two years at $1.85 per hour, averaging 45
hours per week. He intended to continue at this work
indefinitely. He claimed a ministerial exemption on the basis
that he devoted 150 hours per month to ministerial activities
from October, 1948 to June, 1950. Due to the fact this work was
unsalaried he found it necessary to obtain secular employment,
but he continued to devote 50 hours each month to the ministry.
His ministry work consisted of regularly preaching from the
pulpit, as well as visiting the poor and sick, and encouraging
the study of the Bible in the home. He enclosed four affidavits
with the questionnaire stating his sincerity in the ministry
work. Mr. Kinney was classified 1-A by the local board December
January 17, 1951, at his request Mr. Kinney appeared before the
board. The summary of this meeting indicates that Mr. Kinney gave
the board further proof of being a minister, but on January 17,
1951 he was again classified by the board 1-A.
Mr. Kinney appealed his classification, claiming his
ministerial exemption. He wrote in his letter requesting appeal
he was not the administrative head of any congregation, but he
was considered within the ranks and teachings of said group an
ordained minister. The appeal board classified Mr. Kinney 1-A.
In the meantime on August 20, 1951 Mr. Kinney was given his
physical examination and found acceptable for service in the
armed forces. In his report of medical history he stated he had
one job in the past three years, and his usual occupation was
September 5, 1951 Mr. Kinney requested a conscientious
objector's form, but noted that he still desired a 4-D exemption.
He returned the conscientious objector's form to the board, and
answered that from 1948 to 1950 he was a full time minister. He
added that he did general contracting work with Carl Thomas as
employer from 1950 to 1951.
Mr. Kinney refused to fill out the special report for class 1-O
registrants October 27, 1952. He informed the board that his
record indicated a primary vocation of an ordained minister and
his secular work was secondary. He further noted "I am an
engineer of equipment on a project in the interest of national
safety, namely, easing the housing shortage in Rantoul,
Illinois," and that this type of work completely meets the
requirements for civilian work.
October 30, 1952 Mr. Kinney appeared before the board to
discuss a civilian assignment. From the board's summary it
appears Mr. Kinney said he felt his ministerial work was more
important than any other work. He worked eight hours a day as a
concrete man, and spent the rest of his ...