HUTCHESON, Chief Judge.
Classified by the Appeal Board as 1-0, Conscientious Objector^ after the Local Board had classified him as 1 — A, and ordered by the Local Board to report on February 1, 1954, for civilian work contributing to the maintenance, national health, safety, and interest, defendant-appellant failed and refused to do so.
Charged on September 15, 1954, in a one count indictment with violation of the Universal Military Training and Service Act, Sec. 462, Title 50 U.S.C.A. Appendix, in refusing to perform civilian work as ordered by his Local Board, he pleaded not guilty thereto, and, a jury waived, was tried by the court without a jury.
., . , , The evidence concluded, and his mo- ,. , „ . , , „ tion1 for judgment of acquittal denied, he was found guilty as charged, and sentenced to the custody of the Attorney General for a period of two years.
Appealing from the judgment of conviction, defendant is here insisting that the action of the Local Board, on which His conviction is based, denied him due process of law in the respects complained 0f by him in his motion for acquittal, note 1, supra, and that the court erred in denying his motion and finding him guilty,
Pointing in support of his contentions to the undisputed facts in the record,2 [101]*101and citing as controlling under these facts, Dickinson v. U. S., 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132; Rowell v. United States, 5 Cir., 223 F.2d 863; United States v. Ransom, 7 Cir., 223 F.2d 15; appellant presents his argument under these points:
Point One: (A) Defendant was denied due process of law by all the draft boards because the denial of the claim for exemption as a minister was without basis in fact, arbitrary and capricious and violative of the act and regulations.
(B) The defendant was denied due process of law because the draft boards employed artificial and orthodox standards in determining what constitutes a minister of religion, and erroneously held that part-time secular work defeated the ministerial claim, and erroneously b-eld that, [102]*102because defendant did not earn his livelihood from the ministry and did not have a pulpit, he was not entitled to the ministerial classification, all contrary to the act and regulations.
Point Two: The local board deprived the defendant of procedural due process guaranteed by the Fifth Amendment by failing to keep posted at the office of the local board the names and addresses of the advisors to registrants, as required by Sec. 1604.41 of the regulations.
Urging upon us that the record shows without dispute that, long before the date of defendant’s classification, he had advised the board that he was training for the ministry and had submitted proof, in the form of a certificate from the Watchtower Bible and Tract Society, that he was an ordained minister of religion, teaching and preaching the tenets of his faith; and that he had testified without contradiction: that such was his regular vocation or work; that he had been training for such work for many years; and that he was devoting a minimum of 1200 hours per year to the actual preaching work; appellant points out that there is not a line of evidence to dispute these facts.
Arguing: that the board’s conclusion was reached without any evidence to sustain it; that the board seemed to base its classification on the fact that the 1200 hours per year which registrant stated he was obligated, to give to the ministry was all the time that he gave to it, and that this was not enough; appellant insists that the board’s order and action were without support in the evidence and, therefore, will not support the verdict and judgment,
We agree that this is so. The law does not require that a minister give all of his time to the ministry. The fact that it is his vocation and life’s work is sufficient. The board did not ask the defendant for witnesses or testimony further corroborating his position, and no contrary evidence to that offered by the defendant was taken by the board. In these circumstances, there was no basis in fact for not believing defendant’s testimony and giving it full effect. Indeed, the board witnesses conceded that they did not disbelieve registrant’s testimony but they did not give it effect because they did not think that what he testified to was legally sufficient to entitle him to the classification asked,
in addition to the fact that the board’s order is without basis in fact, we think its validity is further destroyed by the attitude of the board toward defendant and his claim, evidenced by the.reasons frankly assigned by the members of the board for their action.3 What is present[103]*103ed in this ease is the same phenomenon which has been presented in many other cases of this kind. This is that, even though the defendant is a full time and pioneer minister of Jehovah’s Witnesses, the general attitude of the board and the public toward these claims is hostile and unbelieving, and instead of applying the law as written to the facts as testified to, the board in effect rewrites the law to require duties and conditions which the law does not require. Therefore, here, in addition to the non-existence in the record of evidence to rebut the defendant’s prima facie case, there are the further undisputed facts that the draft boards employed standards applicable to ministers of orthodox churches instead of those standards fixed in the law and applicable here, and thus erroneously held: that part time secular work, from which defendant earned all his livelihood, defeated the ministerial claim; and that, because he did not earn any part of his livelihood from his ministry, he could not be regarded as a minister.
As appellant correctly declares in his brief, the real trouble here is, as it has been in many other cases, that the local board has tried to fit and mold an ordained pioneer minister of Jehovah’s Witnesses into the orthodox straightjacket of ministers of an orthodox church, in the face of the fact that it is impossible to fit the garments of orthodoxy on a pioneer minister of Jehovah’s Witnesses, and that by their footless effort to do so, the local board erred to the prej'udice of defendant and to the denial of rights accorded him by the act and regulations.
Nowhere in them is there a requirement that a minister earn his livelihood from the ministry or from a particular congregation, or that he have a pulpit before he can claim and receive classification as a minister. All that the act and regulations require in order for one to qualify as a minister and to receive the classification is that the ministry be his vocation, not an incidental thing in his life. Sec. 16(g) (1) (2) (3), Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 466(g) (1-3). Once he makes such a showing, as undeniably defendant did in this case, then he is entitled, not as a matter of grace but as a matter of right to the statutory exemption and the classification sought.
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HUTCHESON, Chief Judge.
Classified by the Appeal Board as 1-0, Conscientious Objector^ after the Local Board had classified him as 1 — A, and ordered by the Local Board to report on February 1, 1954, for civilian work contributing to the maintenance, national health, safety, and interest, defendant-appellant failed and refused to do so.
Charged on September 15, 1954, in a one count indictment with violation of the Universal Military Training and Service Act, Sec. 462, Title 50 U.S.C.A. Appendix, in refusing to perform civilian work as ordered by his Local Board, he pleaded not guilty thereto, and, a jury waived, was tried by the court without a jury.
., . , , The evidence concluded, and his mo- ,. , „ . , , „ tion1 for judgment of acquittal denied, he was found guilty as charged, and sentenced to the custody of the Attorney General for a period of two years.
Appealing from the judgment of conviction, defendant is here insisting that the action of the Local Board, on which His conviction is based, denied him due process of law in the respects complained 0f by him in his motion for acquittal, note 1, supra, and that the court erred in denying his motion and finding him guilty,
Pointing in support of his contentions to the undisputed facts in the record,2 [101]*101and citing as controlling under these facts, Dickinson v. U. S., 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132; Rowell v. United States, 5 Cir., 223 F.2d 863; United States v. Ransom, 7 Cir., 223 F.2d 15; appellant presents his argument under these points:
Point One: (A) Defendant was denied due process of law by all the draft boards because the denial of the claim for exemption as a minister was without basis in fact, arbitrary and capricious and violative of the act and regulations.
(B) The defendant was denied due process of law because the draft boards employed artificial and orthodox standards in determining what constitutes a minister of religion, and erroneously held that part-time secular work defeated the ministerial claim, and erroneously b-eld that, [102]*102because defendant did not earn his livelihood from the ministry and did not have a pulpit, he was not entitled to the ministerial classification, all contrary to the act and regulations.
Point Two: The local board deprived the defendant of procedural due process guaranteed by the Fifth Amendment by failing to keep posted at the office of the local board the names and addresses of the advisors to registrants, as required by Sec. 1604.41 of the regulations.
Urging upon us that the record shows without dispute that, long before the date of defendant’s classification, he had advised the board that he was training for the ministry and had submitted proof, in the form of a certificate from the Watchtower Bible and Tract Society, that he was an ordained minister of religion, teaching and preaching the tenets of his faith; and that he had testified without contradiction: that such was his regular vocation or work; that he had been training for such work for many years; and that he was devoting a minimum of 1200 hours per year to the actual preaching work; appellant points out that there is not a line of evidence to dispute these facts.
Arguing: that the board’s conclusion was reached without any evidence to sustain it; that the board seemed to base its classification on the fact that the 1200 hours per year which registrant stated he was obligated, to give to the ministry was all the time that he gave to it, and that this was not enough; appellant insists that the board’s order and action were without support in the evidence and, therefore, will not support the verdict and judgment,
We agree that this is so. The law does not require that a minister give all of his time to the ministry. The fact that it is his vocation and life’s work is sufficient. The board did not ask the defendant for witnesses or testimony further corroborating his position, and no contrary evidence to that offered by the defendant was taken by the board. In these circumstances, there was no basis in fact for not believing defendant’s testimony and giving it full effect. Indeed, the board witnesses conceded that they did not disbelieve registrant’s testimony but they did not give it effect because they did not think that what he testified to was legally sufficient to entitle him to the classification asked,
in addition to the fact that the board’s order is without basis in fact, we think its validity is further destroyed by the attitude of the board toward defendant and his claim, evidenced by the.reasons frankly assigned by the members of the board for their action.3 What is present[103]*103ed in this ease is the same phenomenon which has been presented in many other cases of this kind. This is that, even though the defendant is a full time and pioneer minister of Jehovah’s Witnesses, the general attitude of the board and the public toward these claims is hostile and unbelieving, and instead of applying the law as written to the facts as testified to, the board in effect rewrites the law to require duties and conditions which the law does not require. Therefore, here, in addition to the non-existence in the record of evidence to rebut the defendant’s prima facie case, there are the further undisputed facts that the draft boards employed standards applicable to ministers of orthodox churches instead of those standards fixed in the law and applicable here, and thus erroneously held: that part time secular work, from which defendant earned all his livelihood, defeated the ministerial claim; and that, because he did not earn any part of his livelihood from his ministry, he could not be regarded as a minister.
As appellant correctly declares in his brief, the real trouble here is, as it has been in many other cases, that the local board has tried to fit and mold an ordained pioneer minister of Jehovah’s Witnesses into the orthodox straightjacket of ministers of an orthodox church, in the face of the fact that it is impossible to fit the garments of orthodoxy on a pioneer minister of Jehovah’s Witnesses, and that by their footless effort to do so, the local board erred to the prej'udice of defendant and to the denial of rights accorded him by the act and regulations.
Nowhere in them is there a requirement that a minister earn his livelihood from the ministry or from a particular congregation, or that he have a pulpit before he can claim and receive classification as a minister. All that the act and regulations require in order for one to qualify as a minister and to receive the classification is that the ministry be his vocation, not an incidental thing in his life. Sec. 16(g) (1) (2) (3), Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 466(g) (1-3). Once he makes such a showing, as undeniably defendant did in this case, then he is entitled, not as a matter of grace but as a matter of right to the statutory exemption and the classification sought.
Finally, it appears beyond question from the testimony of the members of the local board, that the board did not consider the defendant’s status from the standpoint of the facts of his case as applied to the law and regulations but upon the erroneous conclusion emphasized and acted upon, that, since all of Jehovah’s Witnesses claimed to be ministers and all could not be, the claim of the registrant in this case was, on its face, fraudulent and unsound.
In Olvera v. United States, 5 Cir., 223 F.2d 880, where a ministerial classification had been denied a Jehovah’s Witnesses appellant, this court, following the teachings of the Supreme Court in Dickinson’s case, supra, and in the four draft cases, Witmer, Sicurella, Simmons and Gonzales, all against the United States, reported in 348 U.S. at pages 375, 385, 397, and 407, 75 S.Ct. 392, 403, 397, 409, 99 L.Ed. 428, 436, 453, 467, held that, while the courts will not review the facts where there are any which could support the board’s decision, a classification made without any basis in fact or in disregard of procedural due process is a nullity, and orders based upon such classification cannot be made [104]*104the basis of, or support, a conviction.4 Cf. Arndt v. United States, 5 Cir., 222 F.2d 485.
In Ransom’s case, supra, 223 F.2d at page 17 the court correctly declared:
“It has been firmly established by the Supreme Court that when a registrant makes a prima facie showing for a desired classification, the board may not deny him that classification unless it has a ‘basis in fact’ for the denial. Dickinson v. U. S., 346 U.S. 389, 74 S.Ct. 152, * * *” and that “If a registrant makes a prima facie showing of right to a new classification, the board cannot refuse to give it to him unless it has at least a basis in fact for that refusal.”
and further declared at page 18:
“We cannot validly distinguish for draft purposes between ministers of Jehovah’s Witnesses who preach from door to door and on street corners at their vocations, and ministers of more conventional faiths who preach in pulpits, teach in church schools or carry on various other religious activities for their churches. * •» *»
Clearly distinguishing the case from the same circuit, United States v. Diercks, 7 Cir., 223 F.2d 12, on which the government and the district court relied, the court in that case pointed out that Diercks did not, and Ransom did, show that he was actually spending at least 100 hours per month preaching, while Diercks had a full time position as an insurance salesman.
According to the uncontradicted testimony in this record, the local board’s witnesses in effect testified on the trial that they believed that the facts were as the defendant testified to them, but that they just didn’t think that those facts added up to a ministerial classification, according to the board’s view of what a minister is or ought to be.
Upon the record in this case the refusal of the requested classification was made, not because of the absence of facts or because of considerations of credibility, — it was made upon and entirely upon the refusal of the board to accept and apply to appellant’s case the standards established by the law and the regulations.
Because, under these views, the judgment must be reversed with directions to acquit the defendant, it is sufficient in respect of defendant’s Point Two, that the board deprived him of due process by its failure to keep posted the names and addresses of advisers to registrants, to cite in opposition Rowton v. United States, 6 Cir., 229 F.2d 421, certiorari denied 351 U.S. 930, 76 S.Ct. 788, 100 L.Ed. 1460, and United States v. Manns, 7 Cir., 232 F.2d 709, and to say that we agree with the holding in them that the point is not well taken. As was true in those cases, no showing whatever was made here that the complained of failure had or could have had any effect upon the defendant’s presentation of his case to the board. Indeed, the record shows that he presented it adequately and well, and it further shows that he had the benefit of the advice of a representative from the State’s Selective Service Headquarters.
For the error in refusing defendant’s motion for judgment, the judgment is [105]*105reversed and the cause is remanded with directions to enter a judgment of acquittal.