encouraging unscrupulousness, than to invest it with finality against all inquiry either by the Board or the courts. Here half the employees are forced to accept union representation as the result of an election in which they were not allowed to protect the ballot, and those who were, failed to do so. If I really wanted to discourage fraud, collusion, and mistakes, and protect the integrity of elections and the rights of both minority and majority, I should hold that such elections can be looked into whenever irregularity appears to have affected the result.

GIBSON v. UNITED STATES.

NO. 23. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.*

Argued January 2, 3, 1946. Reargued October 23, 1946. Decided December 23, 1946.

1. Having been denied classification as a minister of religion under the Selective Training and Service Act, classified as a conscientious objector and ordered to report to a civilian camp for work of national importance, and having exhausted his administrative remedies up to that point, Dodez refused to go to camp. The regulations then applicable provided for a preinduction physical examination before issuance of the order to report for induction but not after reporting to camp, so that there was no possibility that he would be rejected after reporting to camp. He was indicted for violating § 11 of the Act and defended on the ground that his classification was invalid. Held: He was not required to report to camp in order to complete the administrative process and is not foreclosed from making the defense that his classification was invalid. Pp. 343–350.

(a) Falbo v. United States, 320 U. S. 549, distinguished on the ground that, under the regulations governing Falbo, he might have been rejected upon a physical examination after reporting to camp. Pp. 343-350.

*Together with No. 86, Dodez v. United States, on certiorari to the Circuit Court of Appeals for the Sixth Circuit, argued October 23,

338

Statement of the Case.

2. Having been denied classification as a minister of religion under the Selective Training and Service Act, classified as a conscientious objector and ordered to report to a civilian camp for work of national importance, and having exhausted his administrative remedies, Gibson reported to camp, remained five days, and departed without leave. The regulations then applicable provided for a physical examination after the registrant reported to camp but required the camp director to note the fact of acceptance of the registrant "irrespective of the determination made as the result of" this examination. He was indicted for violating § 11 of the Act and defended on the ground that his classification was invalid: Held: By reporting to a civilian camp, he did not forfeit the right to defend against a charge of desertion on the ground that his classification was invalid, since he remained a civilian and was not subject to military jurisdiction. Pp. 351-361.

(a) No analogy exists between a selectee inducted into military service who may thereafter obtain his release only by resort to habeas corpus and a selectee reporting to a civilian camp for whom the availability of the remedy of habeas corpus is doubtful. Pp. 356-361.

3. On review of a conviction in a criminal case, the Government's confession of error does not relieve this Court of the duty to examine independently the errors confessed. P. 344, n. 9.

4. This Court is not required to determine these cases finally on their merits but remands them for further proceedings in the trial court. Pp. 350-351, 361-362.

149 F.2d 751 and 154 F. 2d 637, reversed.

No. 23. Petitioner was convicted for violating § 11 of the Selective Training and Service Act by unlawfully deserting camp. The Circuit Court of Appeals affirmed. 149 F. 2d 751. This Court granted certiorari, 326 U. S. 708, and, after hearing argument, restored the case to the docket for reargument before a full bench. Reversed, p. 362.

No. 86. Petitioner was convicted for violating § 11 of the Selective Training and Service Act by failing to report to camp. The Circuit Court of Appeals affirmed. 154 F. 2d 637. This Court granted certiorari. 328 U. S. 828. Reversed, p. 362.

Opinion of the Court.

329 U.S.

Hayden C. Covington argued the cause and filed briefs for petitioners. With him on a joint brief was Victor F. Schmidt.

Irving S. Shapiro argued the cause for the United States. With him on the briefs were Solicitor General McGrath and Robert S. Erdahl. Walter J. Cummings, Jr. was also

on the brief on the original argument.

MR. JUSTICE RUTLEDGE delivered the opinion of the Court.

These cases carry forward another step the sequence in decision represented by Falbo, Billings, Estep and Smith.1 Each petitioner has been convicted for violating § 11 of the Selective Training and Service Act (54 Stat. 894, 50 U. S. C. App. § 311), Dodez for failing to report for work of national importance after being ordered to do so and Gibson for having unlawfully deserted the camp to which he had been assigned for such work.2

1 Falbo v. United States, 320 U. S. 549; Billings v. Truesdell, 321 U. S. 542; Estep v. United States, 327 U. S. 114; Smith v. United States, ibid.

2 Section 11 provides, in part: "Any person charged as herein provided with the duty of carrying out any of the provisions of this Act, or the rules or regulations made or directions given thereunder, who shall knowingly fail or neglect to perform such duty, . . . 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 $10,000, or by both such fine and imprisonment

Section 652.11 (a) of the regulations imposes the duty on persons classified IV-E to comply with the order to report for work of national importance; and by § 653.12 assignees are required to report to the camp to which they are assigned and to remain therein until released or transferred elsewhere by proper authority, except when on authorized missions or leave.

338

3

Opinion of the Court.

In each instance the conviction was sustained on appeal and certiorari was granted because of the importance of the questions presented for the administration of the Act. No. 23, 326 U. S. 708, restored to the docket for reargument before a full bench; No. 86, 328 U. S. 828.

The principal issues relate to the time of completing the administrative selective process and the effect in each case of what was done in this respect upon the petitioner's right to make defense in the criminal proceedings on various grounds going to the validity of the classification.

In both cases tendered defenses of this character were excluded in the trial court and the exclusion was sustained on appeal. The effect was, in Gibson's case, to rule that although he had completed the administrative process by reporting to the camp, pursuant to the requirement of the Falbo decision, nevertheless his remedy, if any, on account of the alleged misclassification was by habeas corpus, not by defense in the criminal cause. 149 F. 2d 751. In Dodez' case it was held that by refusing to report for service at the camp he had failed to exhaust his administrative remedies and therefore under the Falbo doctrine he could not question his classification in the criminal suit. 154 F. 2d 637.*

I.

Both petitioners are Jehovah's Witnesses. Each has claimed consistently since the time of his registration that he is a minister of religion and therefore exempt from

3 149 F.2d 751 (C. C. A. 8); 154 F. 2d 637 (C. C. A. 6). Apparently in both cases the important changes in the applicable regulations made after the Falbo decision were not called to the attention of the trial courts or the Circuit Courts of Appeals.

Opinion of the Court.

329 U.S.

training and service under the Act. Each was denied this classification (IV-D), being classified instead as a conscientious objector (IV-E). Administrative appeals were exhausted. Pursuant to the classifications given and the applicable statutory provisions and regulations, Dodez and Gibson were assigned to work of national importance and ordered to report for such work at designated camps.

Dodez refused to go to the camp. But Gibson, thinking the Falbo decision required him to report there in order to exhaust his administrative remedies, went to the camp, remained for five days, and then departed without leave. It is undisputed that he intended at no time to submit to the camp's jurisdiction or authority and that he at all times made this intent clear. Everything he did was done solely to make sure that the administrative process had been finished and with a view to avoiding the barrier Falbo encountered in his trial when he sought to question his classification.

Obviously the petitioners have sought to reach the same point, namely, the place at which the selective process is exhausted administratively, but have differed concerning its exact location. Dodez maintains that the point was reached, under the applicable regulations,' when his preinduction physical examination had been given and he was found acceptable for service by the Selective Serv

5 The exemption is provided by § 5 (d) of the Act, 54 Stat. 885, 888, as follows: "Regular or duly ordained ministers of religion, and students who are preparing for the ministry in theological or divinity schools recognized as such for more than one year prior to the date of enactment of this Act, shall be exempt from training and service (but not from registration) under this Act."

6 Pursuant to § 5 (g) of the Act, which provides that persons so classified shall be assigned to noncombatant service or, if conscientiously opposed to this, then to "work of national importance under civilian direction."

7 See text Part II infra at note 19; also note 13.