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 and appeal board erred and acted capriciously,
arbitrarily, and without basis in fact, in failing to decide
specifically whether the defendant was entitled to a 4-D
classification, and leaving this issue undecided throughout the
course of the proceedings.
4. The order of the local board for the defendant to perform
civilian work in a 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.
Since the denial of the 4-D or ministerial classification must
be based upon the evidence as shown by the Selective Service
System file it is necessary to review the facts therein
disclosed. Mr. Hoepker completed his first questionnaire in
October, 1948. In it he stated that he was born August 25, 1928.
He was a minister of religion and regularly served as a minister
of Jehovah's Witnesses. He had been a minister since January 1,
1939, and was ordained April 19, 1939 by the Watchtower Bible and
Tract Society. He was educated at the "Theocratic Ministry
School," and was conscientiously opposed to war in any form. He
was working on a farm as a hired hand at $50 per month for his
employer, Philip Hoepker. A 4-D classification was requested. He
enclosed with the questionnaire a printed card stating he was an
ordained minister; 22 affidavits of persons describing his
relationship with Jehovah's Witnesses, and 58 signatures to a
statement he was a minister. He also added a statement of his own
that he regularly averaged 65 hours per month in the ministry.
Mr. Hoepker completed his special questionnaire for
conscientious objector in April, 1949. In this, he informed the
board that he worked as a machine operator for John Deere Tractor
Company in Waterloo, Iowa, from 1947 to 1948, and did farming for
Philip Hoepker in Addieville, Illinois. He did not say when the
job ended. April 26, 1949 the registrant was classified 4-E,
which was practically the same as 1-O conscientious objector.
A physical examination was given Mr. Hoepker on January 9, 1951
and he was found acceptable for induction to the armed forces.
The order of induction was postponed for the purposes of an
appeal. Hoepker again claimed a ministerial classification.
February 2, 1951, at his request Hoepker appeared before the
local board and the summary states the board told him that they
could not judge whether he was a minister or not, and that he
should appeal the case to the Department of Justice. February 15,
1951, the board again classified him 1-A.
A special hearing was given Mr. Hoepker before Honorable
Jackson R. Hutton, Special Hearing Officer representing the
Department of Justice, on January 11, 1952. His report was the
registrant appeared sincere and was a bona fide minister of the
Jehovah Witness sect. He recommended Hoepker be classified 4-E
(Conscientious Objector). May 7, 1952 the appeal board classified
A special report for class 1-O registrants was sent Mr. Hoepker
by the board. He returned it in blank, and wrote a letter stating
he could not let secular work interfere with his ministerial
work. He added that he had for support the secular job, which was
to the public's interest. This was building homes. The board
wrote Mr. Hoepker requesting he select one of the three types of
civilian work of national importance which were described to him.
Hoepker replied he would not submit to any type of civilian work.
He met with the board to discuss civilian work assignment and
refused to accept any such assignment.
A physical examination was again given Mr. Hoepker on April 23,
1953 and in his report of medical history he stated that he had
one job in the past three years, but his usual occupation was a
minister. He was ordered to report for hospital work at the
Manteno State Hospital on September 14, 1953, but refused.
The defendant's first contention is based on false assumption.
The local board and the appeal board failed to grant him a
ministerial exemption but there was a factual basis for their
refusal. The defendant relies heavily upon Dickinson v. United
States, 346 U.S. 389, 74 S.Ct. 152, 156, but he overlooks the
statement of our Supreme Court when it said, "Certainly all
members of a religious organization or sect are not entitled to
the exemption by reason of their membership, even though in their
belief each is a minister. * * * And since the ministerial
exemption is a matter of legislative grace, the selective service
registrant bears the burden of clearly establishing a right to
the exemption." In the Dickinson case the registrant clearly set
forth the number of hours that he pursued his ministerial duties,
and the number of hours he devoted to secular work. Judge Lindley
of our 7th Circuit in interpreting the Dickinson case stated:
"[T]he burden is on the claimant to prove himself
to be within the group entitled to claim the
privilege. The court reviewing an order denying such
a claim of privilege may not weigh the evidence. The
selective service file may be scrutinized only for
the narrow purpose of determining whether any factual
basis supports the classification, and in its
scrutiny the reviewing court may not require
adherence by the administrative body to the niceties
of judicial rule of evidence. When and if the court
determines that the contested order rests on a basis
in fact, its jurisdiction ends, even though the court
be convinced that the order is erroneous." United
States v. Simmons, 7 Cir., 213 F.2d 901, 903.
In the light of these principles the board was justified in
classifying Mr. Hoepker 1-O, and denying a ministerial exemption.
United States v. Koch, D.C., 119 F. Supp. 650; United States v.
Schuemann, D.C., 119 F. Supp. 640. From his first questionnaire
and throughout the record, while he claimed to be a minister, he
informed the board that he devoted 65 hours out of each month to
ministry work. He never claimed any change in this status, but in
his first questionnaire and his conscientious objector's
questionnaire he stated that he worked as a machine operator for
John Deere Tractor Company and also did farm work. The special
hearing officer, Mr. Hutton, did find that he was a bona fide
minister, but this was neither binding upon the local board or
the appeal board. Imboden v. United States, 6 Cir., 194 F.2d 508,
513; 50 U.S.C.A.Appendix, § 456(j). He never, at any time, gave a
factual basis to support the exemption and place himself within
the definition of a minister, which required his vocation to be
teaching and preaching the principles of religion.*fn1
The defendant in his second and third contention maintains that
the draft board and the appeal board refused to decide whether he
was entitled to the 4-D classification. The local board from its
summary told the registrant that it was unable to judge whether
he was a minister or not, but classified him 1-A. The appeal
board classified Mr. Hoepker 1-O. He was plainly denied the
ministerial exemption by these classifications. Neither the local
board nor the appeal board was required by the regulations to
deny in so many words the ministerial exemption. If the local
board had failed to classify Mr. Hoepker, which they did not do,
he was not prejudiced since the
hearing before the appeal board was de novo. The appeal board was
required to hear and dispose of the case independently of the
local board's classification, and the classification by the
appeal board superseded the classification, if any, of the local
board. United States v. Pitt, 3 Cir., 144 F.2d 169, 172. The
defendant was not deprived of any procedural rights, either by
the local board or appeal board, and there is no merit in his
second and third contention.
The fourth and fifth reasons for acquittal were presented to
this court in the case of United States v. Smith, D.C.,
124 F. Supp. 406. They were carefully examined and found of no merit.
The defendant Mr. Hoepker is found guilty as charged in the