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not stand on a different footing. By § 10 (a) (2) the local boards, in hearing and determining claims for deferment or exemption, must act "under rules and regulations prescribed by the President . . ." Those rules limit, as well as define, their jurisdiction. One of those regulations forbids the local boards from basing their classification of a registrant on a discrimination "for or against him because of his race, creed, or color, or because of his membership or activity in any labor, political, religious, or other organization." 623.1. Another provides, in accordance with the mandate contained in § 5 (c) (1) of the Act, for the deferment of governors of States and members of Congress while they hold their offices." 622.42. Another provides that the local board "shall reopen and consider anew the classification of a registrant" on the written request of the State Director or the Director and upon receipt of the request "shall immediately cancel" any order to report for induction or for work of national importance. 626.2-1. If a local board ordered a member of Congress to report for induction, or if it classified a registrant as available for military service because he was a Jew, or a German, or a Negro, it would act in defiance of the law. If a local board refused to reopen on the written request of the State Director a registrant's classification and refused to cancel its order to report for induction, it would be acting in the teeth of the regulations. In all such cases its action would be lawless and beyond its jurisdiction.

We cannot read § 11 as requiring the courts to inflict punishment on registrants for violating whatever orders the local boards might issue. We cannot believe that Congress intended that criminal sanctions were to be applied to orders issued by local boards no matter how flagrantly they violated the rules and regulations which define their jurisdiction. We are dealing here with a

11 622.42 provides, "In Class IV-B shall be placed any registrant" who holds specified offices. (Italics added.)

Opinion of the Court.

12

327 U.S.

question of personal liberty. A registrant who violates the Act commits a felony. A felon customarily suffers the loss of substantial rights.13 Sec. 11, being silent on the matter, leaves the question of available defenses in doubt. But we are loath to resolve those doubts against the accused. We cannot readily infer that Congress departed so far from the traditional concepts of a fair trial when it made the actions of the local boards "final" as to provide that a citizen of this country should go to jail for not obeying an unlawful order of an administrative agency. We are loath to believe that Congress reduced criminal trials under the Act to proceedings so barren of the customary safeguards which the law has designed for the protection of the accused. The provision making the decisions of the local boards "final" means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave

12 "All offenses which may be punished by death or imprisonment for a term exceeding one year shall be deemed felonies." Criminal Code § 335, 18 U. S. C. § 541.

13 California: § 2600 of the Penal Code provides that a sentence of imprisonment for less than life suspends all civil rights and forfeits all public offices and private trusts, authority, or power during the imprisonment.

New York: For a similar provision see § 510 of the Penal Law. Missouri: 84561 Rev. Stat. Ann. renders any person sentenced to a penitentiary or convicted of a felony for any crime incompetent to serve as a juror, and forever disqualifies him from voting or holding office, unless pardoned.

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the registrant." See Goff v. United States, 135 F. 2d 610, 612.

Falbo v. United States, supra, does not preclude such a defense in the present cases. In the Falbo case the defendant challenged the order of his local board before he had exhausted his administrative remedies. Here these registrants had pursued their administrative remedies to the end. All had been done which could be done. Submission to induction would be satisfaction of the orders of the local boards, not a further step to obtain relief from them.15

If § 11 were not construed to permit the accused to defend on the ground that his local board acted beyond its jurisdiction, a curious result would follow. The remedy of habeas corpus extends to a case where a person "is in custody in violation of the Constitution or of a law of the United States. . ." R. S. § 753, 28 U. S. C. § 453. It has been assumed that habeas corpus is available only

14 That is the scope of judicial inquiry in deportation cases where Congress has made the orders of deportation "final." Chin Yow v. United States, 208 U. S. 8; Ng Fung Ho v. White, supra; Mahler v. Eby, 264 U.S. 32; U. S. ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103; Bridges v. Wixon, 326 U. S. 135. That is also the scope of judicial inquiry when a registrant after induction seeks release from the military by habeas corpus. See United States v. Cain, 144 F.2d 944.

15 It is said that our conclusion runs counter to an unbroken line of cases holding that a registrant may not challenge his classification in a prosecution under § 11. But most of those cases on their facts involved only the issue presented by the Falbo case. In only a few of them was the issue presented here necessary for decision. The question was reserved in United States v. Pitt, 144 F. 2d 169, 173 (C. C. A. 3d, 1944). In the following cases, the question was necessary for decision, and it was held that the defense was not available: Fletcher v. United States, 129 F. 2d 262 (C. C. A. 5th, 1942); United States v. Rinko, 147 F. 2d 1 (C. C. A. 7th, 1945); Gibson v. United States, 149 F.2d 751 (C. C. A. 8th, 1945); Koch v. United States, 150 F. 2d 762 (C. C. A. 4th, 1945).

16

Opinion of the Court.

327 U.S.

after a registrant has been inducted into the armed services. But if we now hold that a registrant could not defend at his trial on the ground that the local board had no jurisdiction in the premises, it would seem that the way would then be open to him to challenge the jurisdiction of the local board after conviction by habeas corpus." The

16 See United States v. Grieme, 128 F. 2d 811; United States v. Kauten, 133 F. 2d 703; United States v. Mroz, 136 F. 2d 221; Biron v. Collins, 145 F. 2d 758; Fujii v. United States, 148 F. 2d 298; Gibson v. United States, 149 F. 2d 751. See Connor and Clarke, Judicial Investigation of Selective Service Action, 19 Tulane L. Rev. 344; Elliff, Jehovah's Witnesses and the Selective Service Act, 31 Va. L. Rev. 811.

17 The courts which have said that habeas corpus was available only after induction (see note 16, supra) appear to have been influenced by the decisions arising under the 1917 Act, 40 Stat. 76, 50 U. S. C. App. §201. Thus in United States v. Grieme, supra, note 16, p. 814, the court in ruling that the findings of the local boards were not reviewable by the courts said, "Here again the rule is similar to the construction placed upon the Selective Draft Act of 1917. See Ex parte Hutflis, 245 F. 798, 799." The latter case involved a petition for a writ of habeas corpus after induction, which was the accepted way of challenging the jurisdiction of the draft boards under the 1917 Act. But as we pointed out in Billings v. Truesdell, supra, p. 546, a registrant under the 1917 Act was subject to military law from the time he was ordered to present himself for induction. Defiance of the order was held to constitute desertion even though the draftee had not been afforded a fair hearing by the board. Ex parte Romano, 251 F. 762; Ex parte Tinkoff, 254 F. 912. It was said in Ex parte Romano, supra, p. 764: "Although based on irregular proceedings, it was not void. Until vacated, it was binding on the petitioner."

But as Billings v. Truesdell, supra, makes plain, the present Act and the regulations promulgated under it are different. A registrant is not subject to military law from the time he is ordered to report for induction, but only after he has submitted to induction. Thus the decisions under the 1917 Act, holding that his remedy against unlawful action of the local board is by way of habeas corpus after induction, are no guide to decision under the present Act.

It is true that after the conviction of the defendant in the Falbo case, his petition for a writ of habeas corpus was denied. 141 F.2d 689. And in a like situation habeas corpus was denied in advance of the trial. Albert v. Goguen, 141 F.2d 302. But in those cases addi

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MURPHY, J., concurring.

court would then be sending men to jail today when it was apparent that they would have to be released tomorrow.

We do not suggest that because Congress has provided one judicial remedy another should be implied. We may assume that where only one judicial remedy is provided, it normally would be deemed exclusive. But the fact that habeas corpus after conviction is available in these cases gives added support to our reading of § 11. It supports a rejection of a construction of the Act that requires the courts to march up the hill when it is apparent from the beginning that they will have to march down again.

We express no opinion on the merits of the defenses. which were tendered. Since the petitioners were denied the opportunity to show that their local boards exceeded their jurisdiction, a new trial must be had in each case.

Reversed.

MR. JUSTICE JACKSON took no part in the consideration or decision of these cases.

MR. JUSTICE MURPHY, concurring.

To sustain the convictions of the two petitioners in these cases would require adherence to the proposition that a person may be criminally punished without ever being accorded the opportunity to prove that the prosecution is based upon an invalid administrative order. That is a proposition to which I cannot subscribe. It violates the most elementary and fundamental concepts of due process of law. It condemns a man without a full hearing and a consideration of all of his alleged defenses. To sanctional steps in the selective service procedure remained to be taken. Denial of habeas corpus followed by analogy to the familiar situations where other corrective procedures had been available which might have afforded relief from the orders complained of. See Bowen v. Johnston, 306 U. S. 19; Ex parte Williams, 317 U. S. 604; Ex parte Hawk, 321 U. S. 114. But in the present cases the registrants, as we have said, had pursued their administrative remedies to the end.