Before BIGGS, Chief Judge, MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
T. Vail Palmer, Jr. was convicted in the district court for the Eastern District of Pennsylvania for refusing to appear for induction into the armed forces pursuant to the order of a local selective service board. The district court denied his motion for judgment of acquittal, 122 F.Supp. 938, and he has appealed.
Palmer, a member of the Religious Society of Friends, was convicted in the district court in 1950 for failure to register under the Selectve Training and Service Act and he served a term of imprisonment. Just before his release from prison on September 1, 1951, he was registered by the warden in accordance with the selective service regulations and his registration was forwarded to Local Board No. 60 at Media, Pennsylvania. On December 5, 1951, the local board mailed Palmer a classification questionnaire, Form No. 100. He returned it without filling it out or signing it but accompanied it by a letter dated December 9th and signed by him. This letter, and other communications from Palmer, are collected as an Appendix to the majority and minority opinions herein. Also accompanying Palmer's letter was a copy of a statement he had made in the district court when convicted for failing to register. In July 1950, prior to that conviction, Palmer had written the local board two letters, the second being in reply to an order of the board directing him to appear for a conference with regard to registration. On December 17, 1951, the local board received a letter dated December 11th from the Dean of the Graduate School of Theology of Oberlin College giving information as to Palmer's status as a theological student in that institution.
On January 30, 1952, the local board ordered Palmer to report on February 15th for a physical examination, which he failed to do. On February 12, 1952, the board sent him a copy of Form No. 150, the special form for claiming exemption by conscientious objectors, and on February 14th, without waiting for the return of that form, the board classified Palmer in Class I-A. On February 19th the board received the Form No. 150 back from Palmer not filled out but accompanied by a letter signed by him dated February 15th (See Appendix). On April 8, 1952, the board again ordered Palmer to report for a physical examination, this time on April 16th, and he again failed to do so. Except for copies of the letter and orders sent by the local board to Palmer and the board's correspondence with various officials of the Department of Justice and the Selective Service System respecting his prior indictment, conviction, imprisonment and registration, these five letters and statement constituted the sole information concerning him which was in the local board's file when on May 5, 1952, the board ordered him to report on May 20th for induction into the armed forces. It was his disobedience of that order which resulted in his indictment and conviction in the present proceeding.
On behalf of the appellant, Palmer, several arguments are advanced. The first and the one most quickly disposed of is a question about jurisdiction of the Local Board No. 60, Media, Pennsylvania. Palmer was registered while in federal prison in Danbury, Connecticut, and it is suggested that the board in that place and not the board at the place given by Palmer as his home has jurisdiction. This argument is incorrect. The question is clearly answered by regulation 1613.41, 32 C.F.R. § 1631.41(1952). While the procedure for forwarding registration files in cases of this sort has been changed, that change in procedure does not affect the vesting of authority in the local board where the registrant is resident.
Second, it is urged that Palmer having once been convicted for failure to register may not now be convicted for failure to report for induction. The theory behind this ingenious argument is that Palmer's opposition to the military establishment is a single thing in his mind and conduct and if that is contrary to law, should be treated as one offense. The recent Supreme Court decision in Bell v. United States, 349 U.S. 81, 75 S. Ct. 620, 622, is instanced to illustrate the point. From that very case comes the answer to the contention. Mr. Justice Frankfurter, speaking for the majority, said "the punishment appropriate for the diverse federal offenses is a matter for the discretion of Congress, subject only to constitutional limitations * * *." The very fact situation of this case was necessarly included in the decision of the Eighth Circuit in Doty v. United States, 1955, 218 F.2d 93.
Third, this brings us to the really hard point of this case. Here is a man whose good faith as a conscientious objector is not challenged. He likewise may be rejected for service because he has been convicted of the offense of failure to register. Cf. Doty v. United States, supra. As a theological student he was entitled to deferment if he asked for it. See 50 U.S.C.A.Appendix, § 456(g). If he finished his theological course and became a minister of religion he had a further ground, this time for exemption. Ibid. The question is well asked: why, if a court knows all this and a local board knows all this, should a man be convicted of an offense against the government for failing to take advantage of what was provided for him?
The expression of differences among members of a court is much easier if the disagreement can come on some technical subject such as whether a given set of facts is sufficient to constitute a breach of contract in limine. Here we have the kind of differences in policy where there is little in the way of technical rule to guide us and where there are strong arguments, legal, logical and emotional, to be made on each side of the question.
There were on June 30, 1954, about fifteen and a half million young men registered for military service under the Universal Military Training and Service Act. 62 Stat. 604 (1948), as amended, 50 U.S.C.A.Appendix, § 451 et seq. The administration of the Act was entrusted in the first instance to 3,920 local boards. These boards are composed of citizens only some of whom are lawyers and all of whom serve without pay as a matter of public service. It is apparent that if this enormous man power machine is going to work it demands a high degree of co-operation from everyone involved in it and with it.
No man has a constitutional right to be free from a call to military service. Selective Draft Law Cases (Arver v. U.S.), 1918, 245 U.S. 366, 38 S. Ct. 159, 62 L. Ed. 349; United States v. Henderson, 7 Cir., 180 F.2d 711, certiorari denied, 1950, 339 U.S. 963, 70 S. Ct. 997, 94 L. Ed. 1372. However, a sympathetic Congress, desirous to afford a maximum of freedom of conscience, has provided for complete exemption from service for some people and partial exemption for others. It has also provided for a rather elaborate machinery for appeal to make sure that mistakes of local boards do not result in a failure to give any registrant what is due him under the law. There is a method prescribed for handling all these claims for exemption in an orderly way. If rules must be laid down for the handling of court business, as they are, and the proceedings of administrative bodies, as they are, there is even greater reason for the establishment of orderly procedure with nearly four thousand volunteer boards handling the cases of more than fifteen million young men. If we had only the problem of one village to consider with one board of citizens to raise a company of militia from that village there would be no need of elaborate rules. Simple things can be handled simply, of course. But that is not our case.
There must come a time when the interest of the citizenry as a whole must be insisted upon if the interest of both majority and dissenters are to be protected. The young man involved in this case says, and we do not doubt his good faith, that he is so much against all war organization that he will not fill out a questionnaire stating his grounds for exemption.It would only be a step further for this or some other young man to say that he is so much against war that he will not pay taxes to a government which spends the majority of its income to maintain a military establishment. It is only one step further for this or some other young man to say that a government which depends upon force to maintain order and to protect itself against aggression of its neighbor is so bad a government that he feels no moral obligation to obey anything it says. It seems to us that all this is the logical outcome of the position which Palmer has taken. The defendant finds it impossible to fill out a questionnaire but he will write letters to a draft board. In other words, he wants this department of the government run his way.
In argument and brief we have been given an analysis of the authorities bearing upon the legal question: when must one exhaust his administrative remedies before court held is available? That problem is always interesting and sometimes a very difficult one and we are grateful to counsel for appellant for his analysis of it. However, we do not think we must thread our way among delicate distinctions in this case. This defendant not only has failed to exhaust his administrative remedy; he ignores the whole carefully prepared system altogether. He seems to think that to fill out a questionnaire is like being directed to eat meat offered to idols. We do not think it is. But there must be some point at which a sympathetic society can say to a man, "if you want us to recognize what we admit is your honest belief, although it seems to us ill-founded, you must take certain steps to do it."
These draft cases have made difficult problems for the federal courts for quite a number of years. We list herewith for what it may be worth some of the recent decisions. Doty v. United States, already cited, presents a set of facts very close to this one and conviction was upheld. In Estep v. United States, 1946, 327 U.S. 114, 66 S. Ct. 423, 428, 90 L. Ed. 567, the Supreme Court specifically said that Falbo v. United States, 1944, 320 U.S. 549, 64 S. Ct. 346, 88 L. Ed. 305, did not preclude the defenses asserted because the registrants in the Estep cases "had pursued their administrative remedies to the end. All had been done which could be done." While in Dickinson v. United States, 1953, 346 U.S. 389, 74 S. Ct. 152, 98 L. Ed. 132, attention was given to the point that administrative remedies had been exhausted by the defendant. What the Supreme Court was doing in these cases was not contrary to Falbo v. United States, supra.
The case of United States v. Balogh is also very illuminating. This case is reported at 2 Cir., 1946, 157 F.2d 939 (exhaustion rule not applied), vacated and remanded on per curiam opinion, 1947, 329 U.S. 692, 67 S. Ct. 625, 91 L. Ed. 605 (with directions to consider Falbo v. United States), 2 Cir., 1947, 160 F.2d 999 (exhaustion rule applied), certiorari denied, 1947, 331 U.S. 837, 67 S. Ct. 1522, 91 L. Ed. 1850. In the following circuit court cases attention was called to the fact that administrative procedures had been availed of, Tamblyn v. United States, 5 Cir., 1944, 216 F.2d 345; Williams v. United States, 5 Cir., 1954, 216 F.2d 350; Moon v. United States, 5 Cir., 1955, 220 F.2d 730; while in the following cases complete exhaustion of administrative remedies was required, United States v. Balogh, supra; Doty v. United States, supra; Kalpakoff v. United States, 9 Cir., 1954, 217 F.2d 748; Williams v. United States, 9 Cir., 1953, 203 F.2d 85; Skinner v. United States, 9 Cir., 1954, 215 F.2d 767; Mason v. United States, 9 Cir., 1955, 218 F.2d 375; United States v. Rumsa, 7 Cir., 1954, 212 F.2d 927. Cf. Olinger v. Partridge, 9 Cir., 1952, 196 F.2d 986.
As we have already said, however, we do not think these cases bear upon our problem except by inference because here the whole remedial process has been ignored by the defendant.
We do not say for a moment that this defendant is like the rat-like characters who so often come into criminal courts. He may be the prophet of a new day or he may be more dangerous than some of the rat-like characters because his type of refusal to co-operate, if sufficiently widespread, would make organized society impossible. In any event, we think the trial judge showed good sense in not sending him to jail. But it also seems to the majority of us that the conviction was right.
The judgment of the district court will be affirmed. 122 F.Supp. 938.
"Selective Service Local Board No. 60
"In September 1948, when the selective service law went into effect, I informed my local draft board in Modesto, Calif. of my refusal to register, as a Quaker and a Christian pacifist. To date they have taken no action on my refusal. Recently I have moved to the address on the head of this letter - Concordville, Penna., and feel that I should inform you of my presence in the area of your jurisdiction, in case any inquiries should be made on my case, or any action is desired to be taken against me. I will be going to seminary in September at Oberlin, Ohio, and will inform you of my address there. I have notified the local board in Modesto of my address change.
"(Sgd.) T. Vail Palmer, Jr."
"Selective Service System
"Your letter of July 20 arrived today, directing me to report to your office for a conference on Selective Service regulations. I have been informed that the likely purpose of such a conference would be to carry out the instructions of the Department of Justice that those refusing to register for Selective Service should be called before their local board and asked to give the information reguired on the registration form, and that if such information is given, the person shall be considered 'automatically registered' under the law, even if he refuses to sign the form, as was clarified in the case of Edgar Norton of Glens Falls, New York.
"Since my conscientious objection to war involves a break with the conscription as a whole, it seems that I would be untrue to my beliefs if I thus allowed myself to be registered. Therefore, I regret to inform you that I feel constained to disobey the order to report to your office, and to accept whatever consequences may ensue from such action.
"(Sgd.) T. Vail Palmer, Jr."
"Court Statement of T. Vail ...