Giese v. United States

143 F.2d 633, 79 U.S. App. D.C. 126, 1944 U.S. App. LEXIS 3157

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 19, 1944
• Docket: No. 8702
• Status: Published

Opinions

MILLER, Associate Justice.

Section 11 of the Selective Training and Service Act¹ makes it a crime for any person knowingly to fail or neglect to perform any duty required of him, under or in execution of the Act, or rules or regulations made pursuant to it. From a judgment of conviction under the Act this appeal was taken. •

The following facts are undisputed: (1) Appellant’s local Selective Service Board •in the District of Columbia issued an order which directed him to report for induction ;² (2) he failed and refused to obey the order; (3) he acted knowingly and with the deliberate intention of disobeying the order. Under the circumstances, all the necessary elements of criminality were present and appellant was guilty as charged in the indictment unless an affirmative answer to each of his three following contentions is required. Those contentions are that: (1) It was his privilege, by way of defense to the accusation in the present criminal case, to challenge the validity of the order issued by the local board, requiring him to report for induction; (2) the order was void and ineffective; (3) hence it created no duty which he was required to perform, within the meaning of the statute.

In Falbo, v. United States,³ the Supreme Court, upholding a conviction in a similar case, rejected appellant’s first contention. It said: “Even if there were, as the petitioner argues, a constitutional requirement that judicial review must be available to test the validity of the decision of the local board, it is certain that Congress was not required to provide for judicial intervention before final acceptance of an individual for national service. * * * The Act nowhere explicitly provides for such review and we have found ' nothing'in'its legislative history which indicates an intention to afford it.- The circumstances under which the Act■ was adopted lend no support to a view which would allow litigious interruption of‘the ■process bf selection 'which CoHgress created." [Italics supplied.] : Appellant seeks to- avoid this decisive language- by distinguishing thé ;Falbo case on the- theory that it “did' not pass- upon the validity of any conviction based'on an order in which the statutory, procedural requirements themselves had not been complied with.” The language of -the decision in that case, .concerning this, point, when read in its context, provides no support for appellant’s contention. It reads“To meet the need which it felt for mobilizing national manpower in the shortest practicable' period, Congress established a machinery which it deemed, efficient for inducting great numbers of men into the armed forces. Careful provision- was made for fair administration of the Act’s- policies within the framewo.rk of the selective service process. But Congress, apparently.regarded ‘a prompt and unhesitating ..obedience to orders’ issued pn that process ‘indispensable to the complete attainment of the object’ of national defense. Martin v. Mott, 12 Wheat. 19, 30, 6 L.Ed. 537. Surely if Congress had intended. to authorize interference. with that process by intermediate challenges of orders to report, it' would have said so. Against this background the complete absence of any provision for such challenges in the very section providing for prosecution of violations in the civil courts permits no other inference than that Congress did'not intend they could be made.” ⁴ [Italics supplied in part.]

The'only distinction between the Falbo casé and the present ofte lies' in the. reasons asserted to show invalidity of the local board’s order. In the Falbo case the reason asserted was’ that the local board's order followed, an erroneous classification made by it. In’the present case the reason asserted is - that' the-'local board’s order followed a. classification erroneously made by a non-civilian appeals agency, hence that appellant’s appeal to the President was still pending and the board wps prohibited from issuing its order, to report.⁵ But in each case the order which constituted the basis of the criminal charge was made by the proper local board in the form prescribed by the applicable regulation and was valid on its face. Whatever -the reason for its alleged invalidity or impropriety, the order waS not subject to judicial review in the manner attempted by Falbo in his case or by appellant in the present case. The Supreme Court’s language in the Falbo case is equally applicable here.

It is contended, also, that denial to appellant of this defense resulted in an unconstitutional deprivation of judicial due process. This argument was made and rejected in the Falbo case.⁶ The cases of Panama Refining Co. v. Ryan,⁷ Wichita Railroad & Light Co. v. Public Utilities Commission,⁸ and the Morgan cases,⁹ upon .which appellant relies, were not criminal cases and do not even suggest that due process requires judicial review of administrative action by way of defense in a criminal trial. . But the short answer to this contention is that — assuming a right 'in appellant to judicial review — denial to him of the defense in a criminal trial did not cut off that right. His appropriate remedy to vindicate whatever right he may have had was recognized by implication in the Falbo case¹⁰ and directly in Billings v. Truesdell,¹¹ i.e., by writ of habeas corpus. The important consideration of the present case is that Congress deliberately and properly declined to authorize interference, by intermediate challenges, with the administrative process which it set up for mobilizing national manpower in the shortest practicable period. Criminal prosecution for failure to obey a local board’s order was intended to expedite that process, not to delay it. So long as there remained available, to persons situated like appellant, remedial procedure for challenging the validity of the administrative process there was no denial of constitutional rights.

The law knows a number of situations in which, even in peacetime, the duty of the citizen to cooperate in effective law enforcement overrides his convenience. Thus, it is his duty to submit to arrest, upon a warrant valid on its face, even though the warrant may turn out later to be invalid.¹² A citizen who resists arrest under such circumstances may subject himself to punishment for so doing, in spite of his complete innocence of the original accusation upon which the warrant was issued.¹³ So, also, one who is held upon a commitment, valid on its face, may be guilty of escape if he forces his way out of custody,¹⁴ even though the commitment, when properly ' challenged, may prove to he insufficient.¹⁵ Again, one who is a fugitive from a State in which he is unjust-

ly accused of crime may, nevertheless, be subjected to extradition if the indictment and requisition are in proper form.¹⁶ And he may become guilty of a crime, under the federal law, merely by fleeing to another State to escape prosecution.¹⁷ Congress has not acted unreasonably, therefore, in requiring that the procedure which it has established for the selection, classification and induction of men into the armed forces in time of war shall not be interrupted by intermediate judicial review.- In the present case, as in those used for comparison in this paragraph, there was legal process, valid on its face; namely, an order of appellant’s local board requiring him to report. In the present case, as in those used for comparison, a remedy was available — appropriate both as to time and purpose — to challenge the validity of the order. No more is necessary to satisfy the requirements of due process.

In view of our rejection of appellant’s first contention, it is not necessary to consider his second .and third. However, it may he noted that our conclusion ■ is strengthened in this respect by the decision of the Supreme Court in Bowles v. United States.¹⁸ The facts of that case are practically identical with those of the present case.' In his petition for rehearing Bowles urged, as does appellant here, that the order of the local board was void because it depended upon the action of the Director of Selective Service instead of an agency of appeal composed of civilians. In response to the petition for rehearing the Solicitor General filed a memorandum in which he contended that the use in the Act ¹⁹ of the words, “agencies of appeal” was not intended to apply to or include the Director of Selective Service when he, by authority of the President, renders decisions on. appeals to the President.²⁰ The Supreme Court denied a rehearing without opinion.²¹ If the question is still open it is one which will be appropriate for decision in a proper case, following compliance with an order to report; but it does not call for consideration or decision in the present case.

Affirmed.

1 Act of September 16, 1940, 54 Stat. 894, 50 U.S.C.A. Appendix, § 311: “Any person * * * who * * * evades registration or service in the land or naval forces or any of the requirements of this Act * * * or who in any manner shall knowingly fail or neglect to perform any duty required of him under or in the execution of this Act, or rules or regulations made pursuant to this Act * * * shall, upon conviction in the district court of the United States having jurisdiction thereof, be punished by imprisonment for not more than five years or a fine of not more than fj>.l0,000, or by both such fine and imprisonment $ $ $ ”

2 See Selective Service Regulations, Nos. 633.1 et seq.

3 320 U.S. 549, 554, 64 S.Ct. 346, 348.

4 Falbo v. United States, 320 U.S. 549, 554, 555, 64 S.Ct. 346, 349.

5 Selective' Service Regulations, No: 628.7......

6 Falbo v. United. States, 320 U.S. 549, 554, 64 S.Ct. 346.

7 293 U.S. 388, 432, 55 S.Ct. 241, 253, 79 L.Ed. 446: “It is a wholesome and necessary principle that such an agency must pursue the procedure and rules enjoined, and show a substantial compliance therewith to give validity to its action. When, therefore, such an administrative agency is required as a condition .precedent, to .an order, to make‘a finding of facts,' the validity of the order must rest upon the needed finding. If it is lacking, the order is ineffective.” There was no such requirement in the present case.

8 260 U.S. 48, 59, 43 S.Ct. 51, 67 L. Ed. 124.

9 Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288; Morgan v. United States, 304 U.S. 1, 58 S.Ct 773, 82 L.Ed. 1129; United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429.

10 Falbo v. United States, 320 U.S. 549, 557, 64 S.Ct. 346, 350. In his dissenting opinion, Mr. Justice Murphy said: “The 'power to administer complete justice and to consider all reasonable pleas and defenses must be presumed in the absence of legislation to the contrary. Otherwise the absence of clear statutory permission would preclude court review of induction orders in habeas corpus proceedings following actual induction, a result which this Court’s opinion presumably does not intend to infer. Judicial review in such proceedings has become well settled in lower federal courts.”

11 321 U.S. 542, 64 S.Ct. 737.

12 See generally, Perkins, The Law of Arrest, 25 Iowa L.Bev. 201; Barrett v. United States, 62 App.D.C. 25, 26, 64 F.2d 148, 149: “In other words, if the officer has reason to believe that the person he is about to arrest is a desperate character and acts accordingly, the officer is not to be convicted of assault because it subsequently develops that he was mistaken.” United States v. Rice, C.C., 27 Fed.Cas. 795, No. 16,-153; United States v. Thompson, 28 Fed.Cas. 89, No. 16,484; Reilly v. United States Fidelity & Guaranty Co., 9 Cir., 15 F.2d 314; Erskino v. Hohnbach, 14 Wall. 613, 616, 20 L.Ed. 745. See Matthews v. Densmore, 109 U.S. 216, 219, 3 S.Ct. 126, 27 L.Ed. 912; Hofschulte v. Doe, C.C.N.D.Cal., 78 F. 436, 442; Snyder v. Hausheer, 8 Cir., 268 F. 776, 780; Bohri v. Barnett, 7 Cir., 144 F. 389.

13 18 U.S.C.A. § 245; D.C.Code 1940, § 33 — 414(n). Under such circumstances the arresting officer may use sufficient force to prevent escape, in some cases even to the extent of killing, 'the person who resists arrest. Stinnett v. Virginia, 4 Cir., 55 F.2d 644, 646, 647; United States v. Rice, 27 Fed.Cas. 795, No. 16,153.

14 18 U.S.C.A. § 753h.

15 Aderhold v. Soileau, 5 Cir., 67 F.2d 259.

16 Munsey v. Clough, 196 U.S. 364, 373, 25 S.Ct. 282, 49 L.Ed. 515; Hogan v.. O’Neill, 255 U.S. 52, 55, 41 S.Ct. 222, 65 L.Ed. 497; 18 U.S.C.A. §§ 652, 662., See Marbles v. Creecy, 215 U.S. 63, 67, 30 S.Ct. 32, 54 L.Ed. 92.

17 18 U.S.C.A. § 408e.

18 319 U.S. 33, 63 S.Ct. 912, 87 L.Ed. 1194.

19 Selective Training and Service Act 1940, 54 Stat. 893, 50 U:S.C.A.Appendix, § 310(a)(2).

20 Cf. United States v. George S. Bush & Co., Inc., 310 U.S. 371, 379, 380, 60 S.Ct. 944, 946, 84 L.Ed. 1259: “Since its creation in 1916 the Commission has acted as an adviser to the Congress -or to the President.' Under § 336 of the Act of 1930 [19 U.S.C.A. § 1336] the Commission serves the President in that role. It does not increase or decrease the rates of duty; it is but the expert body -which investigates and submits the facts and its recommendations to the President. It is the judgment of the President on those facts which is determinative of whether or not the rec-'ommended '.rates will be promulgated. * * * And the judgment of the President that on the facts, adduced in pursuance of the procedure prescribed by Congress,- a change of " rate is necessary is no more subject to judicial review under this statutory scheme than if Congress itself had exercised that judgment. It has long been held that where Congress has authorized a public officer to take some specified legislative action when in his judgment that action is necessary or appropriate to carry out the policy of Congress, the judgment of the officer as to the existence of the facts calling for that action is not subject to review.” Employers Group of Motor Freight Carriers, Inc., v. National War Labor Board, 79 U.S.App.D.C. —., 143 F.2d 145.

21 Bowles v. United States, 319 U.S.785, 63 S.Ct. 1323, 87 L.Ed. 1728.