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September 29, 1954


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 following reasons:

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 exemption.

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.

In August, 1949 Mr. Thomas completed his special form for conscientious objector and again stated that he was an ordained minister holding the position of territory servant, and worked for Carl Thomas as a brick mason and cement finisher from 1944 to 1949. January 18, 1950 Mr. Thomas was classified 3-A, dependency. October 24, 1951 the board classified Mr. Thomas 1-A.

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 ...

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