(dissenting).
Appellant was indicted and found guilty of a violation of the.Selective Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq. On the 16th of October, 1940, he registered in the District of Columbia and on March 6, 1941, was classified 1-A by his Local Board. Within the required time thereafter he appealed to the District of Columbia Appeal Board, claiming to be a conscientious objector, His claim in this respect was transmitted to the Department of Justice, in accordance with regulations, and referred by the Department to Mr. E. Barrett Prettyman as hearing officer. In due time the latter, though recognizing that Giese was sincerely and aggressively opposed to war, recommended against allowance of the claim on the theory that Congress did not intend to authorize exemption unless, — as was not true in Giese’scase — the objection was based on religious training and belief. As the result, the Appeal Board affirmed the Local Board classification. Thereafter Giese, under Regulation 628.1,1 requested the Director of Selective Service for the District of Columbia to take an appeal to the President. This was allowed and resulted in the following order:
“Appeal No. 17448
“Appeal to the President of the United States
“Under the Provisions of the Selective Service "Regulations District of Columbia, Board of Appeal No. 1, Local Board No. 2, District of Columbia. Registrant: Willis Erie Giese. Order No. 398. Classification-on Appeal to the President: Class 1-A. “This, the 19th day of February 1943. “By Authority of the President
“(S) Lewis B. Hershey, Director.”
Giese was notified of the President’s classification on February 24, 1943, and on February 25th following was notified by Draft Board No. 2 to report for induction on March 10th. He refused to report and wás indicted. On his trial, a jury being waived, General Hershey by stipulation of counsel testified that he was Director of Selective Service at the time of Giese’s appeal to the President, and that he was at that time also an officer of the United States Army on active duty assigned to Selective Service; that the appeal was *637duly received and reviewed by six members of his staff, all of whom were officers of the Army or Navy, assigned by him as a Board of Review to consider Presidential appeals and to make recommendations to him concerning them; that upon receiving the report of the Board he considered the file and recommendation and, by authority of the President, acted thereon and as Director of Selective Service signed the order on Giese’s appeal, as it is set out in the forepart of this opinion.
Counsel for Giese thereupon moved the court to find him not guilty, upon the ground that the United States had failed to prove that he had violated any lawful order to report for induction. The ground of the motion was that the evidence showed that Giese was classified as 1-A by an agency of appeal not composed of civilians, in violation of the Selective Service Act, and hence that he had never been classified according to law, and consequently the order to report was without any foundation of support. The District Court overruled the motion and found Giese guilty and this appeal followed. The argument here is that since General Hershey, an officer of the Army, was the agency of appeal which classified Giese as 1-A, the classification was unlawful and his appeal, consequently, undisposed of, as a result of which the proceedings taken thereafter, including the order of induction issued by the Local Board, were altogether void and of no effect.
So far as I am advised, the question is new,2 and the answer is by no means free of difficulty. The United States insist that the case of Falbo v. United States, 320 U. S. S49, 64 S.Ct. 346, 349, is controlling, but the point in that case, as I view it, was wholly different from the point in this. All that is held there is that the Congress has not authorized judicial review “of the propriety of a board’s classification in a criminal prosecution for wilful violation of an order directing a registrant to report.” The question here is whether there is a similar lack of judicial power in a case in which the order to report is challenged on the ground that no classification exists and the procedural steps under the law to obtain one are incomplete and pending. Considered in this view, I think there is a striking dissimilarity in the two situations, and I find nothing in the Falbo case to indicate that Congress has precluded judicial review in a case of failure in the procedural steps required as a condition to classification. Here, as we have seen, the point made is that the Local Board’s order to report for induction was made at a time when the question of the registrant’s classification was still pending and undetermined,3 and this, of course, on the theory that the action of the appeal agency, — i.e. General Hershey — in reclassifying him as 1-A, was wholly ultra vires and void. The problem impels recourse to certain of the provisions of the Selective Service Act, as well as to the regulations.
By Section 10(a) of the Act, the President is authorized “to prescribe the necessary rules and regulations to carry out the provisions,” and to this end to establish within the System “civilian local boards and such other civilian agencies, including appeal boards and agencies of appeal, as may be necessary to carry out the provisions of this Act.” But the Act itself (Sec. 10(a) (2) expressly requires that both appeal boards and agencies of appeal shall be composed of civilians who-are citizens of the United States, and paragraph 3, authorizing the President to employ active or retired officers of the Army, Navy, Marine Corps or Coast Guard in carrying out the provisions of the Act, excepts from the positions in which they may be so used “local boards, appeal boards, or agencies of appeal established or created pursuant to” the Act. Plainer words could hardly be found than are contained in these paragraphs to show that all appeals in all stages of the appeal must, except when the President acts personally, be determined by civilian citizens and not by the Army.
The President, as he had the right to do, authorized under certain conditions, an appeal to himself from a determination of *638a State board of appeal, and provided the method- and time of taking such appeal.4 The regulation expressly declares that the local board “shall nqt issue an order for a registrant to report for'induction -* *-■ * during the period ¡afforded * *.■ * , - to take an appeal to . the President or during the time such an appeal is pending”; and expressly declared - that- an order to report issued during- either of the periods allowed shall be ineffective and shall be cancelled.
And in the Bowles case, supra, the Supreme Court recognized these regulations as creating a de novo proceeding, as.á result of which the acts of the local board and the State board are superseded and the final outcome made to depend upon the action of the President thro.ugh the 'agency constituted by him' to act for him. In consequence of this the classification originally made by¡ the-local board falls and' a new classification must be made- by the President.- This appears to-be the:method which has been recognized and applied by the Selective Service throughout.
From all,of this it would seem to follow that if in the present instance the agency designated by the President to consider the appeal made to him is the “agency of appeal” described in Section 10(a) (2) of the Act, then by the very terms of the Act, it can be constituted only of civilians who are citizens of the United States. That it is such an agency of appeal seems too clear for argument, for,’ as we have seen, the Act contemplates the establishment of civilian local boards, appeal boards and agencies of appeal as the entire machinery covering the field of induction of citizens into the - armed services. That this is correct is confirmed by the fact that after the indictment in this case and after General Hershey had been subpoenaed as a witness, ' Section 10 of the Act was amended so as-thereafter to require civilian personnel only on local boards and State boards of appeal, and the Report of the House Committee 5 shows that the amendment was considered necessary to assure Army and N.avy personnel on the Presidential appeal board. I think it cannot be properly contended that the effect of the amendment was to give retroactive operation to the statute as amended. “Retroactive declarations of legislative intent prejudicial to those who have acted under an earlier statute whose construction seems clear, it would seem, ought not to be implied * ,* Haggar v. Helvering, 308 U.S. 389, 400, 60 S.Ct. 337, 342, 84 L.Ed. 340. Here, as I think, the original statute was clear. As a result of this amendment the law, as it now exists, permits such, military personnel to act for the President, but it does not follow that because of it, as is suggested by counsel for the United States, if this case is reversed, Giese would be in precisely the same position he is in now. Obviously, this is incorrect, for, Giese now faces prison if the judgment of the District Court is affirmed, whereas, if it is reversed, it by no means follows that when a proper board or lawful official delegated to act for the President has acted, Giese will not promptly obey the order to report for induction. Bút, however that may be, the situation here must stand or fall upon the legality of what has happened and not upon what may. Hence it is that the decision ought to rest upon the determination whether, in the facts as shown in this record, Giese violated the law. And if I am correct in thinking that his appeal has never been considered by a legal board and the order of induction made by the Local Board was prohibited by law until his appeal had been legally disposed of, it follows that the Board’s order was without effect; and this in turn results from the well-established rule that a citizen may not be punished for the violation of the order of an executive officer or board, -if it shall appear that the order was not within the authority of the officer or board. Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446; Wichita R. & Light Co. v. Pub. U. Comm., 260 U.S. 48, 43 S.Ct. 51, 67 L.Ed. 124; Morgan v. United States, 298 U. S. 468, 56 S.Ct. 906, 80 L.Ed. 1288; Id., 304 U.S. 1, 58 S.Ct. 999, 82 L.Ed. 1129.
The Supreme. Court has not hesitated to set aside a conviction in a case in which it was shown that the jury was constituted in part of" persons not qualified to perform jury service. Crawford v. United States, 212 U.S. 183, 29 S.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392. Nor has the Supreme Court hesitated to reverse a conviction obtained on an indictment found by a Grand Jury in communities from which negroes were systematically excluded, for the reason *639that such a jury was illegally constituted. Hale v. Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050. Upon equally solid ground it would seem that like action should follow in the facts of this case.
I am accordingly of opinion that Giese was at all times prior to his indictment entitled to have his appeal submitted to an appeals agency composed of civilians, and that his classification for induction in the Army by General Hershey was contrary to the terms of the Act and the regulations, and consequently the induction order of the Local Board was illegal and imposed no obligation, and his refusal to obey constituted no violation of the law.
The view I have taken of the scope and effect of the Falbo case is, I think, supported by the view expressed of that case by the First Circuit in Chih Chung Tung v. United States, 142 F,2d 919, which I have just seen. And the reasoning and logic of that decision, in my view, definitely support the conclusions in this dissent.
628.1 (a) “When either the State Director of Selective Service or the Director of Selective Service deems it to. be in the national interest or necessary to avoid any injustice, he may appeal to the President from any determination of a board of appeal. He may take such an appeal at any time.” •
A kindred question arose in Bowles v. United States, 319 U.S. 33, 63 S.Ct. 912, 87 L.Ed. 1194, but was not passed on by the Court because other grounds requiring affirmance were found.
628.7 of the Regulations .provides: “Appeal to the President stays induction. The local board shall not issue an order for a 1 registrant to report for induction either during the period afforded the registrant to take an appeal to the President or during the time such an appeal is pending. Any such order to report for induction which has been issued shall be ineffective and shall be canceled by the local board.”
Reg. 678.
Report No. 787, H.R. 78th Congress, First Session.