Cramer v. France, 10765.

• Decision Date: 29 March 1945
• Docket Number: No. 10765.,10765.
• Citation: 148 F.2d 801
• Parties: CRAMER v. FRANCE, Commanding Officer, Ft. McArthur, Cal.
• Court: U.S. Court of Appeals — Ninth Circuit

148 F.2d 801 (1945)

CRAMER v. FRANCE, Commanding Officer, Ft. McArthur, Cal.

No. 10765.

Circuit Court of Appeals, Ninth Circuit.

March 29, 1945.

Philbrick McCoy, of Los Angeles, Cal., for appellant.

Charles H. Carr, U. S. Atty., and James M. Carter and Arthur Livingston, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Before WILBUR, DENMAN, and STEPHENS, Circuit Judges.

WILBUR, Circuit Judge.

The appellant, claiming that he had been improperly inducted into the Army of the United States, petitioned the United States District Court for the Southern District of California for writ of habeas corpus directed to Colonel Jesse G. France, Commanding Officer at the reception center, Fort McArthur, California. The writ was issued, return was made, the hearing was had, and petitioner was remanded to the custody of the United States Army. From this order petitioner appeals.

Petitioner's claim is that he is entitled to exemption from service under § 5, new subdivision K of the Selective Service Act, 50 U.S.C.A.Appendix, § 305(K), as one "necessary to and regularly engaged in an agricultural occupation or agricultural endeavor essential to the war effort so long as he remains so engaged until such time as satisfactory replacement can be obtained."

The respondent filed a return to the writ alleging that the petitioner was under his jurisdiction although on furlough and alleged that he was then regularly in the military service of the United States and that he was expected to appear on the hearing. Whether he did in fact appear in person is not shown by the record.

At the hearing on the writ it was stipulated that the petition for the writ should be considered a traverse to the return. The judgment of the District Court recites that "evidence having been offered and received", but the record before us does not contain any evidence. Apparently the parties assumed that the matters alleged in the petition for the writ of habeas corpus, particularly the matters set up in the exhibit 1 thereto,¹ were true and were properly before the court. It is also so assumed in the briefs and argument on this appeal. This exhibit 1 was a part of the stipulated traverse and, consequently, was not evidence but pleading.

However, in connection with this appeal it was stipulated that the original documents in possession of the clerk of the District Court should be presented to the Circuit Court of Appeals in connection with the appeal. As both parties seem to agree to the correctness of these documents it seems unnecessary to require further proof that they were presented to and considered by the trial judge.

The appellant was originally classified as a farmer exempt from induction by reason of his farmer activities. Although his farms are in South Dakota he registered with the local board in Long Beach, California. After two years the attention of the local board was again directed to the claim of the appellant for exemption as a farmer. A letter dated August 12 was directed by the local board to L. T. Ellis of Mitchell, South Dakota, was referred by him to the U.S.D.A. War Board of Douglas County, South Dakota, and was answered August 18, 1943, by a communication from that War Board, where the appellant's farms are located, stating that the petitioner was not essential to the war effort and indicating that his claims for exemption should be no longer allowed as persons similarly situated in that agricultural area were being inducted.² The local board, therefore, on September 11, 1943, reclassified the appellant in classification A-1. He was notified of this classification and on September 17, 1943, he asked leave to appear in person and present his evidence. The date of October 12, 1943, was fixed by the local board and on that date he appeared before the local board and presented his evidence. He summarizes such evidence as follows in his petition for writ of habeas corpus:

"(1) petitioner's affidavit to support claim for occupational deferment; (2) thirty-one affidavits signed by residents of South Dakota; (3) copies of letters dated August 18, 1943, September 3, 1943, September 7, 1943 and October 4, 1943, comprising the correspondence between Isaac C. de Velder, Chairman, U.S.D.A. War Board, Douglas County, South Dakota, and said Local Board No. 271; (4) two letters dated September 8, 1943 and September 29, 1943 from the Governor of South Dakota to said Local Board No. 271, and a letter dated September 9, 1943, to petitioner from Hon. Chan Gurney, a United States Senator, and a letter dated October 1, 1943, from Hon. Stewart Sharpe, of Delmont, South Dakota; and (5) certain letters and statements from petitioner to said Local Board No. 271, dated September 11, 1943, September 17, 1943, September 18, 1943, October 11, 1943, and October 12, 1943. All of said documents were a part of the record before said Board on October 12, 1943, when petitioner was reclassified by said Board."

These statements were incorporated in the appellant's file and were sent to the appeal board.

On November 5, 1943 the Appeal Board reviewed the record and approved the classification of 1-A and forwarded the record to the State Director of Selective Service at Sacramento, California. Petitioner, through his attorney, requested a further opportunity to present evidence to the local board. The State Director promised that the record would be returned to the local board for the reception of further evidence. Nevertheless, without doing so, the Director approved the classification 1-A and ordered petitioner's induction. The National Director of Selective Service, at the instance of the petitioner, stayed the petitioner's induction until November 29, 1943, to enable the petitioner to present the results of an inquiry conducted by Governor H. T. Sharpe of South Dakota. The report of Governor Sharpe was filed by petitioner with the State Director of Selective Service on November 26, 1943. Appellant claims that by reason of the prejudice of the local board he was not given a full hearing. He was classified as 1-A on October 12, 1943.

On October 18 petitioner appealed from the decision of the local board but the record was forwarded to Frank C. Lyman, Co-ordinator of Selective Service in Los Angeles County, for review, instead of to the Appeal Board. On October 25, 1943, the record was referred to the Appeal Board. On October 29, 1943, the Appeal Board returned the record to the local board for the inclusion of additional evidence "by direction by the Co-ordinator." Thereupon each of the three members of the local board who had voted for his A-1 classification filed statements dated October 20, October 21, and November 1, respectively, purporting to be on a matter of personal privilege. These statements were in reply to...