The opinion of the court was delivered by: Platt, District Judge.
Elwood Lowell Diercks was indicted by the grand jury on two
counts alleging that he violated Section 462, Title
50 U.S.C.A.Appendix, in that he refused to perform the work at
Manteno State Hospital, at Manteno, Illinois, in accordance with
the order of his Selective Service Board.
The petitioner and the government stipulated in writing that a
jury be waived. Rule 23(a) Fed.Rules Crim. Proc., 18 U.S.C.A.;
that the selective service system file be admitted in evidence,
and that the defendant Diercks failed to perform work as charged
in the indictment.
The defendant contends that he is not guilty for the following
1. He was arbitrarily denied a minister's classification.
2. He was denied a fair hearing on January 24, 1952.
3. The physical examination was illegal and destroyed
jurisdiction of the board for the reasons:
(a) He was ordered to report for physical examination while his
case was on appeal, and
(b) His physical examination did not take into consideration
the letter from his personal physician.
4. The imposition of work in the State Hospital not under
control of the federal government is in violation of the
Thirteenth Amendment to the Constitution of the United States.
The facts as disclosed by the file of Mr. Diercks before the
board were as follows:
His first questionnaire was filed with the board October 12,
1948. Mr. Diercks stated he was born April 4, 1927. He was a
minister of Jehovah's Witnesses in regular service since 1945,
having been ordained on that day. His occupation was part time
general farm work for the past four years at a weekly pay of
$35.00 for an average of 40 hours work per week. He was
responsible for the operation of the farm which was owned by his
father. 35 acres of corn, 15 acres of hay and 22 acres of oats
were planted on the farm and it was stocked with 800 fox, 20 pigs
and 15 cows. He stated he was conscientiously opposed to
participation in war in any form and he was physically disabled
with "Metabolic Disterbance." He requested a 4-D (Ministerial
Exemption) or a 4-F (Physically unfit). With the questionnaire,
he filed affidavits from several persons that he preached from
house to house and lectured. His father also filed an affidavit
alleging his son devoted on the average of 20 hours per month at
field service work and 25 hours per month to study by himself,
and he was enrolled in the Ministry School conducted at Kingdom
Hall (Church of Jehovah's Witnesses). The draft board on December
29, 1948 classified Mr. Diercks 1-A.
Mr. Diercks completed his form No. 150 (special form for
conscientious objector) April 25, 1949, in which he noted he
worked as a farm hand and insurance salesman for his father. He
became a member of Jehovah's Witnesses April 29, 1949. On April
26, 1949, Mr. Diercks was classified 4-E (conscientious
objector).*fn1 December 18, 1940, Mr. Diercks was reclassified
1-A-O, which made him subject to noncombatant military service.
The defendant requested a hearing before the board, and at the
hearing stated that he preached a little every Sunday and also
during the week, and he had a job on the farm with his father.
The board again on January 11, 1951, classified the defendant
There is no further notation until December 18, 1951, when the
board reviewed the file and changed his classification to 1-O
(Available for civilian work contributing to the maintenance of
national health, safety, or interest.) Immediately the ...