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Roodenko v. United States

December 22, 1944


Appeals from the United States District Court for the District of Colorado; T. Blake Kennedy, Judge.


Before PHILLIPS, BRATTON and HUXMAN, Circuit Judges.

HUXMAN, Circuit Judge.

This is a consolidated appeal of four cases, No. 2968, Igal Roodenko v. United States, No. 2969, Donald West Rockwell v. United States, No. 2970, James Glenn Hutchinson v. United States, and No. 2971, Everett A. White v. United States. Briefs have been filed only in No. 2968. The questions in the four cases are identical, and it is agreed that the decisions in the other three cases shall be the same as in the Roodenko case. Appellant will be referred to either as appellant or Roodenko.

Appellant is conscientiously opposed to participation in war in any form. He was classified as IV-E. When he was called up for service, he claimed his exemption and was assigned to work of national importance by the Director of Selective Service. At the time of his conviction, he was located at Camp No. 111, in Montezuma County, Colorado. He was convicted of refusing to work and perform the duties assigned to him by the Director of Civilian Public Service Camp No. 111. The facts are not in dispute.

The appeal challenges the constitutionality of that part of Section 5(g) of the Selective Training and Service Act of 1940*fn1 which relates to those who by reason of religious training and belief are opposed to participation in war in any form. It is claimed that this portion of the Act is unconstitutional because (1) it deprives such persons as are covered thereby of the free exercise of religion, contrary to the First Amendment to the United States Constitution; (2) it deprives them of liberty and property without due process of law, and takes their private property without just compensation, contrary to the Fifth Amendment; and (3) it subjects them to involuntary servitude not as punishment for crime, contrary to the Thirteenth Amendment.

It is further urged that Executive Order No. 8675 of February 6, 1941, Selective Service System Order No. 111, Mancos Project, Colorado, and Selective Service System Regulations, Part 692 - Rules for Government Operated Camps, are void because: (a) They are in excess of any power which Congress had to delegate and are in excess of the power delegated by the Act; (b) the order, rules and regulations violate the United States Constitution; and (c) they subject assignees to such camps to military direction in violation of the Act.

There is no constitutional right of exemption from service in our armed forces on account of religious training or conscientious scruples against participation in war, or for any other reason.*fn2 This principle is too well settled to need any extended discussion or the citation of a great number of cases. There are none holding to the contrary.

While Assignment No. 1 asserts a constitutional right of exemption from military service, Roodenko apparently does not make this asserted ground the basis of his appeal. He states in his brief that "So far as this case is concerned, it may be admitted that appellant had no constitutional exemption and that, had Congress seen fit so to do, it might have refused any exemption whatsoever on the ground of conscience or religious objection." He then argues that the Act of 1940 was limited in its scope to raising and training armed forces, and that it does not purport to be an exercise of the general war powers of Congress. The argument is made that when Congress limited the Act to raising and training soldiers and sailors for our armed services and thereunder granted appellant an exemption from such service, Congress could not make that exemption conditional by requiring appellant to render service in works of national importance in civilian public service camps. We cannot agree that the Act is, or was intended by Congress to be, so narrowly limited in its operation. In 1940, when this Act was before Congress, the world was aflame. War was all about us. All charged with the safety of our country felt that there was great danger that the scourge of war would not pass us by. Under these conditions Congress recognized the existence of a grave emergency. The Act itself declares the existence of such an emergency which made necessary the passage of this legislation. Congress had in mind more than the limited objective appellant would ascribe to it in the passage of this Act. It sought to completely and adequately prepare our country for defense by marshaling the man-power of the nation and by raising, equipping, and supporting armies for the defense of our land. This is the interpretation which the Supreme Court has placed upon the scope and purpose of this Act.*fn3

It is not correct to say that appellant and those who believe as he does are exempt from the operation of the Act. They are subject to draft the same as one who has no scruples against serving his country in the armed forces, the only difference being that under the provisions of the Act they are excused from military service. The Act specifically provides that they may be drafted or "called up," if one prefers that term, to serve their country in work considered of national importance under civilian direction.

If Congress, as we have held, has the power to compel conscientious objectors to serve in the military forces, they cannot be heard to complain that they are relieved from such service on condition that they nevertheless recognize their obligation of citizenship and respond to call and serve their country in non-military work of national importance, under civilian authority. Congress could have required Roodenko to serve in the armed forces. Having no constitutional right of exemption from such service, he certainly can have no constitutional grounds to challenge the validity of an Act which gives him a conditional exemption from a service which he could be compelled to perform.

The conclusion we have reached in regard to Assignment of Error No. 1 disposes of Assignments 2 and 3. They fall of their own weight. It follows that Roodenko is not deprived of any constitutional rights by being compelled to perform a service which may be lawfully exacted any more than a soldier is deprived of similar rights by being required to offer his life on the field of battle.

The contention that the Act does not authorize the President to set up civilian public service camps for conscientious objectors is without merit. The Act specifically provides that they shall be assigned to work of national importance under civilian direction. This contemplates an organization perfected for this purpose. It was not necessary for the Act to define in detail the organization which was to be created. It was sufficient to designate the framework within which it was to be confined. This it did when it designated a civilian organization devoted to work of national purposes.

Section 310(a)(1) of the Act (50 U.S.C.A. Appendix) directs the President to make all necessary rules and regulations to carry out the Act. This includes the provision for an organization to which conscientious objectors are to be assigned. The yardstick is laid down in the ...

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