151 F.2d 801 (3rd Cir. 1945), 8897, United States ex rel. Samuels v. Pearson

Docket Nº8897, 8992.
Citation151 F.2d 801
Party NameUNITED STATES ex rel. SAMUELS v. PEARSON, Commanding Officer. UNITED STATES ex rel. HOROWITZ v. SAME.
Case DateNovember 15, 1945
CourtUnited States Courts of Appeals, Court of Appeals for the Third Circuit

Page 801

151 F.2d 801 (3rd Cir. 1945)

UNITED STATES ex rel. SAMUELS

v.

PEARSON, Commanding Officer.

UNITED STATES ex rel. HOROWITZ

v.

SAME.

Nos. 8897, 8992.

United States Court of Appeals, Third Circuit.

November 15, 1945

Argued Nov. 9, 1945.

Meyer Kreeger, of New York City (George M. Eichler, and Willner & Willner, both of Jersey City, N.J., on the brief), for appellants Samuels and Horowitz.

Grover C. Richman, Jr., of Camden, N.J. (Edgar H. Rossbach, U.S. Atty., of Newark, N.J., on the brief), for appellee Pearson.

Before MARIS, GOODRICH, and O'CONNELL, Circuit Judges.

PER CURIAM.

The relators in these two cases claimed exemption from military training and service under the Selective Service Act, 50 U.S.C.A.Appendix § 301 et seq. The claim of each was based upon the asserted fact that he was a student preparing for the ministry. The local board of each at first granted him exemption but, after receiving from the New York City Director of Selective Service the statement and recommendation of an 'advisory panel on theological classifications' and after further proceedings not necessary here to relate, cancelled his exemption and reclassified him in Class IA. Each was subsequently inducted into the army and then sued out a writ of habeas corpus in the district court, which after hearing that court discharged. The present appeals followed.

In each of these cases, as in the case of United States ex rel. Levy v. Cain, 2 Cir., 1945, 149 F.2d 338, the membership of the 'advisory panel' was cloaked in anonymity, its statement not being signed, and the identity of its membership not being disclosed to the relator or appearing in the record of the proceedings before the local board. In each case it made through the New York City Director of Selective Service a recommendation to the local board as to the action which the board should take.

Page 802

We fully agree with the conclusion reached by the Circuit Court of Appeals for the Second Circuit that the interjection of the statement and recommendation of the 'advisory panel' into the proceedings of the local boards vitiated those proceedings and rendered the relators' reclassification and induction invalid. The reasons for this conclusion are stated in Judge Learned Hand's opinion in the cited case with such clarity and force as to require no amplification by us.

Accordingly in...

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