431 F2d 875 United States v. Perrin

431 F.2d 875

UNITED STATES of America, Appellee,
John Clyde PERRIN, Appellant.

No. 25175.

United States Court of Appeals, Ninth Circuit.

August 5, 1970.

John Clyde Perrin (argued) pro per.

Solomon Zeltzer, Legal advisor, San Jose, Cal., for appellant.

Coleman Bresee (argued) Asst. U. S. Atty., James L. Browning, U. S. Atty., F. Steele Langford, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before HAMLEY, DUNIWAY and WRIGHT, Circuit Judges.


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Appellant was convicted of refusing induction into the Armed Services. On appeal, he limits his attack to the constitutionality of the Military Selective Service Act of 1967, 62 Stat. 604, 50 U.S.C.App. §§ 451-73. We affirm.


Appellant's failure to present to his local board any of the issues now raised does not preclude judicial review where, as here, the challenge is to the validity of the Act on its face. McKart v. United States, 395 U.S. 185, 89 S.Ct. 185, 23 L.Ed.2d 194 (1969); United States v. Mitchell, 369 F.2d 323 (2d Cir. 1966). Nevertheless, we are foreclosed by prior decisions of this and other courts from ruling in favor of appellant on any of the issues presented.


(1) Congress has the power to conscript during peace-time. United States v. Hogans, 369 F.2d 359 (2d Cir. 1966); Etcheverry v. United States, 320 F.2d 873 (9th Cir. 1963); Richter v. United States, 181 F.2d 591 (9th Cir. 1950).


(2) A challenge to the use of troops in Vietnam is premature in a prosecution for refusing induction. Rusk v. United States, 419 F.2d 133 (9th Cir. 1969); Simmons v. United States, 406 F.2d 456 (5th Cir. 1969); United States v. Mitchell, supra.


(3) The conscientious objector provision, 50 U.S.C.App. § 456(j), as recently construed, is not invalid as a law "respecting the Establishment of Religion." Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970).