The board by letter requested Mr. Kinney to select one of three
types of civilian work offered him on April 20, 1953. He replied
by letter saying that he was refusing all such types of work as
it would interfere with his ministry. His present secular work
was limited so he could perform his ministerial work effectively.
He further stated in recent months he had been made a servant in
the Danville congregation.
Mr. Kinney met with the local board on May 28, 1953 to discuss
civilian work assignment. Again he stated he was in construction
work but budgeted his time to take care of his ministerial
duties. He submitted a "Certificate for Service in Congregation,"
which recites that he officiated as an assistant presiding
minister of the Danville, Illinois, congregation. Since January
2, 1953 he had been serving as an "Accounts Servant" for this
congregation. He also regularly and customarily engaged in
teaching and preaching. The board wrote Mr. Kinney "After
consideration by the local board they were of the opinion that
the information submitted was not new evidence and therefore
refused to reopen the case." Mr. Kinney was ordered to report for
hospital work at the Elgin State Hospital, Elgin, Illinois,
September 17, 1953. He did not report to the hospital.
At the hearing before the court Mr. Kinney testified the
summary by the board of January 17, 1951 was incomplete. In
examining his testimony this court finds that the summary was
sufficient. The summary is not required to be a judicial
transcript of everything that was said before the board. It is
sufficient if the file contains all the substantial facts bearing
on the defendant's status. United States v. Mansavage, 7 Cir.,
178 F.2d 812.
The defendant first maintains that he was denied his
ministerial exemption when there was no basis in fact for the
denial. The whole record in this case conclusively shows that the
defendant was employed in the construction of homes, working 45
hours per week, at $1.85 per hour. He claimed he devoted more
than 50 hours per month to the ministry. In view of such state of
facts the board was not arbitrary and capricious in denying the
4-D classification. Dickinson v. United States, 346 U.S. 389, 74
S.Ct. 152; United States v. Simmons, 7 Cir., 213 F.2d 901; United
States v. Koch, D.C., 119 F. Supp. 650; United States v.
Schuemann, D.C., 119 F. Supp. 640.
The second contention of the defendant that he should have had
a further hearing by the board to determine his classification is
without merit. The whole record discloses that Mr. Kinney's
vocation was a cement finisher, doing general construction work
with Carl Thomas as employer. So long as he maintained this
employment the board was certainly justified in refusing to
reopen his case.
In his brief the defendant argues that the local board was
bigoted in its action and maintained a calloused attitude toward
him. If the board showed any prejudice toward the registrant
which the record does not reveal, the registrant was not
prejudiced because he appealed his case. The appeal board
independent of any classification of the local board hears and
disposes of cases upon the file which discloses all the facts.
United States v. Pitt, 3 Cir., 144 F.2d 169; Cramer v. France, 9
Cir., 148 F.2d 801. The appeal board's decision in determining
the registrant's status completely and finally substantiated the
classification by the local board. Tyrrell v. United States, 9
Cir., 200 F.2d 8, certiorari denied 345 U.S. 910, 73 S.Ct. 646,
97 L.Ed. 1346.
The last two reasons of the defendant for acquittal were
thoroughly discussed by this court in United States v. Smith,
D.C., 124 F. Supp. 406. There is no merit to either of these
It must be concluded that the defendant is guilty as charged.
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