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- ,. , „ . , , „ tion 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, and 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, because 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. What is present ed 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 prejudice 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 the basis of, or support, a conviction. 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 reversed and the cause is remanded with directions to enter a judgment of acquittal.
. In it, in points numbered 1 to 4, be claimed:
(1) that the board’s refusal to recognize his claim to ministerial exemption and accord him the 4-D classification requested was without basis in fact, arbitrary, capricious and contrary to the acts and regulations;
(2) that the denial was illegal, arbitrary and capricious because the board employed artificial and orthodox standards in determining his claim to be a minister of religion, rather than following the definition of a minister contained in the act and regulations;
(3) that the denial was arbitrary and capricious because the board erroneously held that the defendant’s performance of part time secular work defeated the ministerial claim, though, under the undisputed evidence, he is, in conformity with the act and regulations, customarily engaged in teaching and preaching the doctrines and principles of an organized ehurch;
(4) that the denial was arbitrary and capricious in that the board erroneously held that, because defendant did not earn his livelihood from the ministry, but earned it principally at farming and not at preaching, he was not entitled to the ministerial classification claimed.
Point 5 presented the claim that the Local Board deprived him of due process under the Fifth Amendment by failing to have and keep posted at the office of the Local Board, the names and addresses of the advisers to registrants as required by 1604.41 of the regulation.
. These facts are:
Defendant registered Feb. 8, 1951. On Dec. 1, 1951, he wrote to the local board under the new selective service system concerning conscientious objectors, “I am a student preparing for the ministry and confined to my studies and also I am obligated to provide for my family. I might not could go where the regulation prescribes under any circumstances, although I am a conscientious objector to combatant and non-combatant service. Under the circumstances, I am not signing it.”
On Jan. 18, 1952, because he was attending school at the time, he was given a 1-S, High School, classification,
On Dec. 29, 1952, defendant notified the local selective service board by letter that he was no longer attending high school and had entered the full time ministry.
On Jan. 16, 1953, his classification was changed to 1-A.
On Jan. 21, 1953, the registrant wrote the board a letter advising it that he was dissatisfied with his classification and requesting a personal appearance before the board and a 4-D classification. The letter stated:
“I have been a full-time pioneer minister of Jehovah’s Witnesses since Aug. 1, 1952. At present I am working with my brother Franklin Lamar Pate, a graduate of the Watch Tower Bible College of South Lansing, New York. My brother has served as a missionary and minister in the British West Indies and throughout the United States. We are now doing missionary and ministerial work in Choctaw County, Mississippi.
“As I am now a full-time pioneer minister and have been duly ordained in ac-eordance with the regulations of the Watch Tower Bible and Tract Society, I should be given a 4-D classification.
“Enclosed is my Ordination Certificate which I wish you would carefully eon-sider, and make the proper classification so as to avoid an injustice.
“Please notify me of the date I can personally appear before the Local Board.”
The certificate for pioneer issued by the Watchtower Whip and Tract So-eiety, Brooklyn, New York read as fol-jowg.
i,™ ... , i ~ . “This is to certify that Harold G. Pate . ,, ,. - ... j, — , ,, is a duly ordained minister of Jehovah’s „r.. , , . Witnesses, engaged, as his customary .. . , . , . , vocation, in preaching and teaching the • • i * 2, - c •A. , , . 7 . principles of this Society and administer- : , . . . mg the rites and ceremonies thereot m ... ,. public worship.
_ _ He lias been duly ordained in accord-anee with the principles prescribed by this Society. This was by a public ceremonial Feb. 17, 1952, whereby he confessed in the presence of witnesses that his life was thereafter dedicated to service of Almighty God Jehovah as a minister and to follow in tim footsteps of Christ Jesus preaching His kingdom of righteousness. Since such date he has been recognized by this Society as qualified to represent it in such capacity.
“Ile was duly appointed on Aug. 1, 1952, as a ‘pioneer’ minister and acts as a direct representative of this organization and has since been organizing and establishing churches and generally preaching the doctrines and principles of Jehovah’s Witnesses in a territory assigned to him. He is authorized to perform the ordinary rites and ceremonies recognized and employed by Jehovah’s Witnesses, such as the marriage ceremony, the baptismal ceremony, the burial ceremony, etc.
“He is therefore declared and certified by this Society to be, in aecord-anee with its principles, a duly ordained minister, having the qualifications to preach ‘the gospel of God’s kingdom’. — Isaiah 61:1, 2; Matthew 24-14.
“Watchtower B. & T. Society, Inc. T. J. Sullivan
“Superintendent of Ministers and Evangelists.”
“At the bearing afforded Mm on July 20, 1953, according to the testimony of Shannon, chairman of the draft board, the defendant said, that, to obtain the certificate and to be considered a pioneer minister, he was required to put in 1200 hours per year in mission work for his , , , ., , , .. ., , church, and that he had put m 1200 hours , . . - a year as such pioneer; that no particu- , . , , ,, . , . lar period of the year was required for . , ,, , , . this work, that he could do it at any . ., time, maybe after tlie crop was laid , , , ,. . by or whatever time was convenient ; that in other words, he stated that he had no required hours or week or month,
Shannon also testified: that registrant stated that every member of his church was a minister and that they had no expensive church but the ministers went from house to house; that he also stated that, in addition to his pioneer ministry, he helped farm 40 acres of land; and that registrant also stated that he received his livelihood from the farm and not from ministerial work,
Asked if he was testifying that the ministerial status was denied registrant by the board because he went from house to house preaching, Shannon said, “No, I said we did not feel that 1200 hours a year would constitute a full time status.”
Further asked, “But you also testified that, because he said all members of his church were ministers, you couldn’t he-lieve him?”, he answered, “I did not say I could not believe him.”
Q: “Did you believe Mm?’’ An “I believed^ he said he put m 1200 hours a year."
. The witness Shannon was asked the following questions and gave the following answers:
“Q. From your knowledge of ministers and from the evidence you took at these hearings, was there any evidence introduced by this registrant to show that he j , . . ^ „ was a minister as you know a minister?
.... A‘ No’ Slr
“Q. Under what theory did this local board #30 refuse to classify this registrant as a minister? A. Well on two grounds. One that 1200 hours a year is not enough to be considered a full time minister; and second, he said he did not get his livelihood from that, and outside a few expenses that was all he derived from that work.”
On cross examination:
“Q. Do you question that that doeument from the Watchtower Bible Society is a genuine certificate? A. No, I don’t question that, but when the registrant says, ‘Every member of our church is a minister and is considered a minister,’ how could we defer the whole Jehovah’s Witnesses bunch because they go from house to house preaching?
ttt *u- * n , . “Q. Was this fellow asking you to . . ,. c t x. t., w. defer the entire group of Jehovah’s Witnesses’ A No sir ....
"Q- Weren t you confined to just his case? A. Yes, sir.
“Q. Then, by your testimony, you denied him a ministerial status because he went from house to house preaching?
A. No, I said we didn’t feel that 1200 hours a year would constitute a full time status.
“Q. Now, if this registrant had had a regular church, the fact that he engaged in farming, would that have precluded him from a 4-D status? A. No, sir.
“Q. One of the main reasons you denied him this ministerial classification was that he did not have a fixed church?
A. He did not have a fixed church, a fixed number of hours, and a fixed income from that source.”
There was more to the same effect, but this is sufficient to show the attitude and motivation of the board.
. What we said in Olvera’s case, applies with, full force here:
“ * * * It is particularly difficult for laymen, charged with the duty of raising an army by draft, to avoid translating into action what certainly seems a basically just feeling that a few should not be permitted, at the expense of the many, to enjoy the blessings of liberty without paying their share of its price. Natural and understandable as these feelings are, however, it is for the congress, and not for the boards and tlie judges, to take them into account except as sharpeners of their consciences, and, therefore, of their consciousness of the difficult and delicate task imposed upon them to do justice under the law, at all times and under all circumstances in cases of this kind, to those whose beliefs some at least of the triers do not approve of and some cannot or will not understand.” 223 F.2d at page 883.