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September 29, 1954


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 following reasons:

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 27, 1950.

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 construction work.

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 ...

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