Estep v. United States/Concurrence Frankfurter
Mr. Justice FRANKFURTER, concurring in result.

Although Congress, in 1940, and by reenactment since, provided that when a draft board determines whether a registrant is entitled to exemption or deferment the board's decision is 'final,' the Court now concludes that such a decision is not final but may be reviewed when the registrant is tried before a jury for wilful disobedience of a board's order. Not only is such a result opposed to the expressed will of Congress. It runs counter to the achievement of the great object avowed by Congress in enacting this legislation; it contradicts the settled practice under the Selective Service Act throughout the war years, recognized as such by authoritative Congressional opinion; it reverses all the circuit courts of appeals before whom the matter has come, constituting an impressive body of decisions and expressing the views of more than forty judges.

The case is this. Estep was a Jehovah's Witness. By virtue of that fact he claimed the protection of § 5(d) of the Selective Training and Service Act of 1940 (54 Stat. 885, 888, 50 U.S.C.App. § 305(d), 50 U.S.C.A. Appendix § 305(d), which exempts from service 'Regular or duly ordained ministers of religion * * *.' His local board ruled against this claim and classified Estep as I-A, that is, available for military service, and ordered him to report for induction. He reported and was accepted by the Navy but refused to submit to induction. See Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917. This prosecution was then commenced under § 11 of the Act (54 Stat. 885, 894, 50 U.S.C.App. § 311, 50 U.S.C.A.Appendix § 311). That section makes it an offense for any person wilfully to disobey 'any of the provisions of this Act, or the rules or regulations made or directions given thereunder * * *.' Concededly Estep failed to carry out the order of the board to submit to induction. Estep sought to defend disobedience on the ground that the local board had improperly denied his claim of exemption from service in that they refused to classify him as a 'regular or duly ordained (minister) of religion.' He also offered in defense proof of alleged misconduct by the board bearing on his right of appeal from the board's decision. Disallowance of these defense by the district court, which after conviction were sustained by the Circuit Court of Appeals presents two issues for our consideration: I. Is the decision of a local board denying a claim of exemption subject to reconsideration in a criminal prosecution for knowingly failing to discharge the duties required by the Act as a result of such classification? II. Is action by the local board whereby a registrant is cut off from the opportunities of a review within the Selective Service process as authorized by the Act available as a defense in such prosecution for disobedience of the local board's order? These are questions of such moment in the enforcement of the Selective Service Act as to call for an adequate statement of the reasons that impel disagreement with the major conclusion of the Court.

Did Congress place within the Selective Service System the authority for determining who shall and who shall not serve in the armed services, who shall and who shall not enjoy the exemptions and deferments by which Congress has qualified the duty of all to serve? Or, did it leave such determination for reconsideration in trials before juries of persons charged with wilful disobedience of duties defined by the Act? This is the crucial issue in the case and touches the very nerve-center of the Selective Service Act.

One would suppose that Congress expressed its will with the utmost clarity, precluding the need of labored argumentation as to its purpose. Section 10(a) (2) gives the answer.

'Such local boards, under rules and regulations prescribed by the President, shall have power within their respective jurisdictions to hear and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this Act of all individuals within the jurisdiction of such local boards. The decisions of such local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribed.' 54 Stat. 885, 893; 50 U.S.C.App. § 310(a)(2), 50 U.S.C.A.Appendix § 310(a)(2).

These words can only mean what they appear to mean if they are read as ordinary words should be read. Ordinary words should be read with their common, everyday meaning when they serve as directions for ordinary people. If legislation was ever designed to define the rights and duties of the vast body of ordinary people, it is the Selective Service Act. One need not italicize 'final' to make final mean final, when nowhere in the Act is there any derogation of this Congressional command of finality to 'the decisions of such local boards,' subject only to reviewability within the Selective Service System.

But if one goes beyond the meaning that the text spontaneously yields, all other relevant considerations only confirm what the text expresses. To allow judicial review of a board's decision on classification is not to respect the context of purpose into which a specific provision of a law is properly placed. To do so disregards that purpose. And Congress did not rely on the public understanding of the purpose that moved it in passing the Selective Service Act, as well it might have considering that the Act was passed in September, 1940. It was explicit: 'The Congress hereby declares that it is imperative to increase and train the personnel of the armed forces of the United States.' § 1(a). 54 Stat. 885, 50 U.S.C.App. § 301(a), 50 U.S.C.A.Appendix § 301(a).

There cannot have been many instances in our national life when Congress stamped its legislation as 'imperative.' And history has amply underscored the desperate urgency. Congress deemed it imperative to secure a vast citizen army with the utmost expedition. It did so with due regard for the individual interests by giving ample opportunities, within the elaborate system which it established, for supervision of the decisions of the multitudinous draft boards on the selection of individuals for service. As to such legislation, even were the language not explicit, every provision of the Act should be construed to promote fulfilment of the imperative need which inspired it. Surely it would hamper the aim of Congress to subject the decisions of the selective process in determining who is amenable to service to reconsideration by the cumbersome process of trial by jury, admirably suited as that is for the familiar controversies when the nation's life is not at stake. To avoid such a palpable inroad upon Congressional purpose, we need not draw on implications. We must merely resist unwarranted implications to sterilize what Congress has expressly required.

In construing the Act, this Court has heretofore applied the reasons which led Congress to rely wholly on the Selective Service System in determining the rights of individuals. This is what we said two years ago:

'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 framework of the selective service process.'

We so ruled in Falbo v. United States, 320 U.S. 549, 554, 64 S.Ct. 346, 349, 88 L.Ed. 305. That was a case in which we held that a challenge to a local board's classification cannot be raised upon a trial like the present for violation of the Court's order, where the registrant disobeys the order before he is accepted for national service. But the Congress made the decisions of the board 'final' without regard to the  tage at which the registrant disobeys it. The command of Congress makes the decision of the board no less final after the registrant has submitted to the pre-induction examination than before such submission. The finality of the board is neither diminished, nor the authority of the courts to review such decision enlarged, because a registrant flouts the Selective Service process at an early or at a late stage. The language of the statute is unqualified and all-inclusive: 'The decisions of such local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe.'

Such has been the construction of more than forty judges in the circuit courts of appeals.  The question raised by the facts of this case has come before the Circuit Courts of Appeals for the First, the Second, the Third, the Fourth, the Fifth, the Sixth, the Seventh and the Eighth Circuits. All, eight of them, have ruled that judicial review of a draft board classification is not available, in a criminal prosecution, even though the registrant has submitted to the pre-induction physical examination. Sirski v. United States, 1 Cir., 1944, 145 F.2d 749; United States v. Flakowicz, 2 Cir., 1945, 146 F.2d 874; United States v. Estep, 3 Cir., 1945, 150 F.2d 768; Smith v. United States, 4 Cir., 1945, 148 F.2d 288; Koch v. United States, 4 Cir., 1945, 150 F.2d 762; Fletcher v. United States, 5 Cir., 1942, 129 F.2d 262; Klopp v. United States, 6 Cir., 1945, 148 F.2d 659; United States v. Rinko, 7 Cir., 1945, 147 F.2d 1; Gibson v. United States, 8 Cir., 1945, 149 F.2d 751.  Such was the impact of this Court's reasoning in the Falbo case that it greatly influenced the ruling of the Circuit Courts of Appeals as to the finality of local board orders and practically silenced whatever doubts may theretofore have been held by a few of the judges.

That it was during the crucial war years that the Act was thus interpreted and enforced, whereby the raising of the armed forces was saved from obstruction by not subjecting the Selective Process to judicial review when Congress forbade it, is of course no reason for misconstruing it now and relaxing the mode of administration which Congress deemed necessary for its effectiveness.

Congress not only so willed but those especially entrusted with formula ing this legislation were fully aware of the judicial consequences of what it prescribed. This is shown by an authoritative report of the House Committee on Military Affairs when that Committee, the originator of the Act, was considering amendments on renewal of the Act. In its report in January, 1945, more than four years after the Act had been in operation, the Committee thus stated with accuracy and acquiescence the unanimity of judicial decisions in support of the respect by the judiciary of finality of the decisions of the draft board:

'Under the Act as it is now written, registrants who are ordered to submit to induction into the armed forces may not refuse and defend such refusal in a criminal prosecution on the ground that their classifications were not given fair consideration by their boards. In order to obtain a judicial determination of such issues such registrants must first submit to induction and raise the issue by habeas corpus.' H.R. Rep. No. 36, 79th Cong., 1st Sess., (1945) 4-5.

Congress wanted men to get into the army, not to litigate about getting in. And so it legislated on the assumption that its carefully devised scheme for determining within the Selective Service System, who was under duty to serve in the army would go awry too seldom to justify allowance of review by the courts. If challenges to such determination by the Selective Service System were found baseless, as they were so found as a matter of experience in all but a negligible number of instances, the men having submitted to induction would be in the army, available as such, and not in prison for disobedience. Accordingly, Congress legislated to discourage obstruction and delay through dilatory court proceedings that would have been inevitable if judicial review of classification had been afforded during the war years.

The Court finds support for its reading that 'final' does not mean final in the fact that not even at a time of our greatest national emergency was the writ of habeas corpus withdrawn as the ultimate safeguard of personal liberty. See U.S.C.onstitution, Art. I, § 9, cl. 2; 1 Stat. 81, as amended, 28 U.S.C. § 451, 28 U.S.C.A. § 451. But this general right to question the entire want of a legal foundation for a restraint is no measure of the issues that Congress left open for determination in a jury trial for disobedience of orders of the local draft boards made 'final' by § 10(a)(2). Still less can it justify nullification of an explicit direction by Congress that such orders shall finally be determined within the framework of the Selective Service System. The issues in a habeas corpus proceeding are quickly joined, strictly limited and swiftly disposed of by a single judge. See 14 Stat. 385; 28 U.S.C. § 465, 28 U.S.C.A. § 465. Habeas corpus proceedings are freed from the cumbersomeness which is a proper price to pay for the countervailing advantages of jury trials in appropriate situations. Habeas corpus 'comes in from the outside,' after regular proceedings formally defined by law have ended, 'not in subordination to the proceedings, and although every form may have been preserved, opens the inquiry whether they have been more than an empty shell.' Holmes, J., dissenting in Frank v. Mangum, 237 U.S. 309, 346, 35 S.Ct. 582, 595, 59 L.Ed. 969. Habeas corpus, after conviction, could not, of course, serve as a revisory process of the determination of classification which Congress lodged with finality in the draft boards. It could only be used in those hardly conceivable situations in which the proceedings before the draft board were a mere sham, 'nothing but an empty form.' Ibid. The availability in such a remote contingency of habeas corpus even after conviction is certainly no reason for deflecting and confusing a trial for the simple issue defined by § 11, namely, whether there was a wilful disregard of an order made by the Selective Service System, a system ranging from the local board to the President. It is one thing for the writ of habeas corpus to be available even though an administrative action may otherwise be 'final.' See e.g., Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938. It is quite another to interpolate judicial review and thereby to disrupt a whole scheme of legislation under which millions of orders need promptly to be made and promptly to be respected and were therefore endowed with finality when sanctions for disobedience are sought.

Another ground for denying the evident purpose of Congress and disregarding the terms in which it expressed that purpose, is the suggestion that the validity of a classification goes to the 'jurisdiction of the board' to issue an order to report for induction. But Congress did not say that 'the decision of such local boards when properly acting under their authority shall be final.' It said simply and unqualifiedly 'the decisions of such local boards shall be final.' To be sure local boards are given power to act 'within their respective jurisdictions.' But all agencies upon which Congress confers authority have such authority impliedly only 'within their respective jurisdictions.' If that inherent limitation opened the door to review of their action in every enforcement proceeding despite provisions for finality, a provision of finality is meaningless.

This argument revives, if indeed it does not multiply, all the casuistic difficulties spawned by the doctrine of 'jurisdictional fact.' In view of the criticism which that doctrine, as sponsored by Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598, brought forth and of the attritions of that case through later decisions, one had supposed that the doctrine had earned a deserved repose. In withholding judicial review in the situations with which we are concerned, Congress was acting upon the conviction that it was dealing with matters which were more fittingly lodged in the exclusive discretion of the Selective Service System. Even in cases of far less exigency, Congress has chosen to act on such a view. See, e.g., Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301; Final Report of the Attorney General's Committee on Administrative Procedure (1941) 86. But the short answer to any claim of reviewability drawn from the confinement of the local boards to action 'within their respective jurisdictions' is that Congress was concerned with geography and not with law. Throughout this Act, the term 'jurisdiction' has this geographic connotation. Is it reasonable to believe that Congress, bent on creating a vast armed force as quickly as possible, would in effect authorize every order of the Selective Service System to be reconsidered upon trials for disregard of such orders? The Act does not differentiate between the power of the board to allow exemptions and its power to grant deferments. The boards were invested with final authority to determine such matters subject only to such review as the Act authorizes. When Congress talked about a board acting within its jurisdiction it meant that a registrant had submitted his papers to a board either because he resided within its area or for some other relevant reason had registered with it.

For five years the circuit courts of appeals have construed § 10(a)(2) to mean that Congress established a system for organizing a vast citizen's army, the selection of which shall be in civilian boards with such control over them as the President may formulate. Designed obstruction of this means of meeting the great emergency was made an offense. That the Congress had the Constitutional power to do so needs no argument at this late date. See Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856; Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774. And yet the Court today holds that eight circuit courts of appeals were wrong in reading the language of Congress as Congress wrote it, even though in doing so these courts wer  respectful of the considerations that moved Congress to write the Act as it did in order to raise that army. If this be so, not only were they wrong, but probably hundreds of convictions for disobedience of local board orders based on such regard for what Congress had written, were invalid.

Since Congress has made final the decision of a local board on a claim of exemption, its decision as to exemption cannot be reopened upon a trial for disobedience of the board's order. But Congress also authorized an appeal from the local board to an appeal board and ultimately to the President. Congress has not given to the local board authority to decide when such statutory rights of appeal may be availed of, nor to make 'final' unwarranted action by a board whereby such appeal is frustrated. Cf. Tung v. United States, 1 Cir., 1944, 142 F.2d 919. Accordingly, if a registrant does not obey an order of induction because the board has cut off the opportunity which the statutes gives him to appeal to higher authority, his obligation of obedience has not yet matured. Therefore he has not failed to discharge his obligation under the Act. The duty to obey is not merely a duty to obey an order of the draft board, but to obey such an order after it is no longer subject to review within the Selective Service System. 'The decisions of such local draft boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe.' Estep made the claim that he was effectively denied the right to appeal in addition to his inadmissible defense that the local board classified him improperly. He offered to prove that for all practical purposes the local board frustrated his right to have his case go to the appeal board, in violation of the board's duty under the Act and the Regulations. Estep should have been allowed to make proof of this claim by appropriate motion to be disposed of by the court. As in situations of comparable legal significance, a trial court may of course leave controverted issues of fact to the jury.

Another issue is presented by the petitioner in No. 66. The indictment alleges a failure to report for induction. While the petitioner did not report at the local board as he was ordered to do, he was forcibly taken to the induction center and went through the pre-induction physical examination but subsequently refused to submit to induction. An order to report for induction, as we said in Billings v. Truesdell, 'includes a command to submit to induction.' 321 U.S., at page 557, 64 S.Ct. at page 745, 88 L.Ed. 917; United States v. Collura, 2 Cir., 1943, 139 F.2d 345. There is, however, basis for the petitioner's contention that the case was tried and submitted to the jury on the theory that he failed to show up at his local board. He substantially complied with that request by being at the induction center for examination. The trial court's charge is at best ambiguous. The court more than once apparently charged not that he did not submit to induction, but that he failed to appear voluntarily at the induction points. 'A conviction ought not to rest on an equivocal direction to the jury on a basic issue.' Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402. On this ground the conviction is properly reversed.

Mr. Justice BURTON, with whom Mr. Chief Justice STONE concurs, dissenting. 

Notes