The opinion of the court was delivered by: DUMBAULD
A priori, on principle and as a matter of common sense, it would seem only ordinary prudence for a draft board to select and issue induction notices to more registrants than the number of vacancies to be filled in the armed forces, when experience as well as expectation shows that many of those who are summoned fail to take their place in the serried ranks of the nation's defenders.
There are many reasons for this. Some are rejected by the armed services as unfit or failing to meet the qualifications prescribed by standards in force. Some will obtain postponements for various reasons; others will, like defendants Marrie and Gazda, fail to report; a certain number who report, like defendant Andrews, will refuse induction. Hence the courts, if not otherwise required by plain provisions of law, will uphold reasonable and good faith efforts on the part of the Selective Service System to meet the nation's manpower needs by provident measures designed to supply the necessary number of men without inconvenient delays and lost motion.
Such forethought would include calling up more men than will actually be needed, in order to make sure that the number required will be available. As the poet Horace says, it is good to draw from a heaping granary and to drink from an abundant fountain.
What, then, does the statute (and the regulations) provide with respect to this matter? Defendants contend that whatever discretion exists to overbook must be exercised at the State level, not by the local board; and the Government's brief indicates that in some areas, such as California, such a system is in fact practiced. In Pennsylvania, however, we are told by the Government's brief, the State director overbooks only to offset rejections, but makes no allowance for no-shows.
Again, a priori, it would seem that this problem of attrition is one that would have to be dealt with at all levels. The evidence in the instant cases showed, for example, that in order to grant a postponement (which is sometimes sanctioned under certain circumstances) an induction order must first be issued so that the postponement will have something upon which validly to act.
When the board knows that the first name on its list of persons given induction notices is that of a person entitled to and who will undoubtedly receive a postponement, would it not be the height of absurdity to hold that the board could not simultaneously issue a notice to another registrant, who will hopefully be more available for service?
Congress has provided that selection of persons for service shall be made in an impartial manner under regulations prescribed by the President, and that the quotas for each State shall be proportional to the number of available registrants in such State, less credit for residents serving in the armed forces.
Establishment of local boards by the President is authorized.
An annual drawing using birthdays of registrants establishes a "random selection sequence for induction."
The sedes materiae with respect to the functions of the local board is found in 32 C.F.R. 1631.7 which [as of September 26, 1970] provides:
Very judicious comment on this provision appears in the Government's brief (p. 3):
It is significant that the regulation states the mandate in terms of "the number of men required to fill the call" rather than the "specified number of men to be delivered for induction" prescribed by the call. In view of the widely differing ability of local boards to deliver a specified number it is only reasonable that each local board would be directed to issue orders to a sufficient number of registrants to assure delivery of the required number of men for induction. A local board in an area where no-shows were relatively few would obviously not be required to issue as many orders to meet a required call as would a local board serving an area having a high incidence of draft evaders.
Stated in terms of interpretation, the question is whether "the number of men required to fill the call" means "such number as after anticipated attrition will suffice to actually fill the call" or whether it means "a number identical to the specified number of men to be delivered for induction." The former interpretation clearly seems to be indicated. As the Government's brief (p. 4) likewise aptly states, to "deliver for induction" does not mean the same as to "order for induction." This is shown by the experience in the case at bar with respect to defendants, all of whom proved to be "no-go"s. The regulation authorizes the board to order for induction the number of men required in order effectually to deliver for induction the number specified in the State director's call.
We therefore conclude that "overcall" is an insufficient defense.
Defendant Gazda invokes a defense based on alleged improper order of call. He contends he was improperly included in the "extended priority selection group," that is to say was improperly subjected to "prolonged vulnerability" to being called for induction.
Here the applicable provision is 32 C.F.R. 1631.7(b) [as of September 26, 1970] which states that
Registrants shall be selected and ordered to report for induction in the following categories ...