FRANKFURTER, J., concurring. 327 U.S. 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 Hov. White, 259 U. S. 276. 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, 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 114 FRANKFURTER, J., concurring. 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; 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, 245 U. S. 366; Hirabayashi v. United States, 320 U. S. 81, 93. And yet the Court today holds that eight circuit courts of appeals were wrong in reading the language of Congress as Congress wrote it, FRANKFURTER, J., concurring. 327 U.S. even though in doing so these courts were 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. II. 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, 142 F. 2d 919 (C. C. A. 1st, 1944). Accordingly, if a registrant does not obey an order of induction because the board has cut off the opportunity which the statute 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 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 114 BURTON, J., dissenting. 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 557; United States v. Collura, 139 F.2d 345 (C. C. A. 2d, 1943). 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. On this ground the conviction is properly reversed. MR. JUSTICE BURTON, with whom MR. CHIEF JUSTICE STONE concurs, dissenting. The CHIEF JUSTICE and I think that the judgment of conviction in these cases should be affirmed for reasons stated in Part I of MR. JUSTICE FRANKFURTER'S opinion. We think that under § 10 (a) (2) of the Selective Service Act, rightly construed, the registrant is required, on pain of criminal penalties, to obey the local board's order to report for induction into the armed forces, even though the board's order or the action of the appeal board on which it is based, is erroneous. "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. Rep. No. 36, 79th Cong., 1st Sess. (1945) 5. It follows that if the registrant is indicted for disobedience of the board's order he cannot defend on the ground that the draft procedure has not been complied with or, if convicted, secure his release on that ground by resort to habeas corpus. The result is that such relief is open to him only if he obeys the order and submits to induction, when he is free to seek habeas corpus. We do not find in the record of either case sufficient basis for reversal thereof on the grounds suggested in Part II of MR. JUSTICE FRANKFURTER's opinion. HANNEGAN, POSTMASTER GENERAL, v. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. No. 399. Argued January 11, 1946.-Decided February 4, 1946. 1. Section 14 of the Classification Act of 1879 provides that, in order to be admitted as second-class mail, a publication "must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts . . ." Held that, under this provision, the Postmaster General is without power to prescribe standards for the literature or the art which a mailable periodical (not obscene) disseminates, or to determine whether the contents of the periodical meet some standard of the public good or welfare. Pp. 148, 158. 2. A purpose on the part of Congress to grant the Postmaster General a power of censorship-a power so abhorrent to our traditionsis not lightly to be inferred. P. 151. 3. When read in the context of the postal laws of which it is an integral part, the provisions of § 14 must be taken as establishing standards which relate to the format of the publication and to the nature of its contents, but not to their quality, worth, or value. P. 152. |