The opinion of the court was delivered by: Platt, District Judge.
The grand jury returned an indictment against Walter Gale
Thomas for violation of Sec. 462, Title 50 U.S.C.A.Appendix. It
alleged he refused to comply with the order of his selective
service board to perform certain civilian work contributing to
the maintenance of national health, safety or interest at the
University of Chicago Clinics, Chicago, Illinois. Mr. Thomas
waived jury trial as provided by Rule 23(a) of Fed.Rules
Crim.Proc. 18 U.S.C.A. He stipulated in writing that the
selective service system file be considered in evidence and his
refusal to report. He waived any question of venue.
Mr. Thomas now maintains that he should be acquitted for the
1. The local board and the appeal board arbitrarily and
capriciously denied him a ministerial exemption in the face of
the evidence of a prima facie claim to such ministerial
2. The draft board erred in refusing to decide on the record
before it whether the defendant was entitled to a 4-D
classification, and the appeal board erred in reviewing the
record under these circumstances.
3. The draft board and appeal board erred and acted
capriciously, arbitrarily and without a basis of fact in not
deciding the issue, as to whether the defendant was entitled to a
4-D ministerial exemption.
4. The order to report for civilian work was not within the
time limit prescribed by the regulations since the defendant's
physical examination was given more than 19 months before he was
ordered to report for civilian work.
5. The order of the local board for the defendant to perform
civilian work at a private university, 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 Service and Training Act.
6. The Act, as construed and applied by the Regulations and
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 first four contentions of the
defendant the selective service system file must be analyzed. It
discloses the following facts: The first questionnaire of August,
1949 returned to the board by Mr. Thomas stated he was born
November 4, 1927. He had been a minister of Jehovah's Witnesses
since June, 1939, formally ordained, and attended the Theocratic
Ministry School of the Watchtower Bible and Tract Society. He
received no pay for his ministerial services. As a secondary
employment he was a brick mason and cement finisher. He worked
five years at this trade, on an average of 40 hours per week, at
the rate of $2 per hour. He stated he was conscientiously opposed
to war, and had been classified 4-F in the last war. (World War
II.) He requested a 4-D ministerial exemption. With the
questionnaire Mr. Thomas enclosed affidavits that he was a
minister. He also filed an affidavit himself alleging that he
devoted, at least, 40 hours per month to the ministerial
vocation, and attended the ministry school which was conducted
every Friday night at the local meeting place of Jehovah's
Witnesses. He worked as a masonry finisher and did some carpentry
work to earn a living as his ministerial duties paid no salary.
Also enclosed was a printed certificate showing that the
defendant was an ordained minister of Jehovah God.
A hearing was had before the board on November 7, 1951 at the
request of Mr. Thomas. According to the summary he told the board
that he had filed proof he was a minister, preaching from house
to house and also conducted meetings. He was in partnership with
his father in the building contract business but preached in the
evening and on weekends, and regularly served as a minister. The
board continued the 1-A classification.
A physical examination was given Mr. Thomas November 9, 1951.
In his medical history he stated he had one job for the past
three years and his usual occupation was "home cons." He was
found acceptable for induction in the armed forces.
The board changed the classification of Mr. Thomas on November
14, 1951, giving him a 1-O, conscientious objector. He appealed
this classification claiming the ministerial exemption. With the
letter of appeal he enclosed an affidavit signed by four ordained
ministers of Jehovah's Witnesses, which stated in part that Mr.
Thomas was serving regularly as a part time minister, preaching
and teaching the tenets and beliefs of Jehovah's Witnesses. The
appeal board on October 3, 1952 classified Mr. Thomas 1-O.
The board mailed Mr. Thomas the special report for class 1-O
registrants. He refused to complete the form. He wrote the board
October 15, 1952 saying he had been preparing for the ministry
for a number of years and served as a part time minister under
the direction of the Watchtower Bible and Tract ...