Dick v. Tevlin

• Decision Date: 02 April 1941
• Citation: 37 F. Supp. 836
• Parties: DICK v. TEVLIN et al., Local Board No. 112.
• Court: U.S. District Court — Southern District of New York

37 F. Supp. 836

DICK v. TEVLIN et al., Local Board No. 112.

District Court, S. D. New York.

April 2, 1941.

Aronsky & Aronsky, of New York City (Barnet Odessky, of New York City, of counsel), for plaintiff.

Mathias F. Correa, U. S. Atty. for Southern District of New York, of New York City (George B. Schoonmaker, Asst. U. S. Atty., of New York City, of counsel), for defendants.

LEIBELL, District Judge.

Plaintiff has brought this action against the members of Local Board No. 112, County of Bronx, State of New York, appointed pursuant to the Selective Training and Service Act of 1940, § 1 et seq., 50 U.S.C.A. Appendix, § 301 et seq., for the following relief: "plaintiff demands judgment that this Court issue a peremptory mandamus order directed to the defendants commanding them to forthwith permit the said plaintiff to change the date of his birth stated on his registration card and questionnaire to September 22nd, 1904 and discharge the said plaintiff from their supervision and jurisdiction over him and cancel and vacate any and all orders which heretofore have been directed against him or to show cause why the command of such order should not be obeyed, and for such other and further relief as may be proper and just in the circumstances and for a restraining order pending the determination of this action staying the transmittal of any papers or the entry of any order or induction of the plaintiff into the army of the United States or the taking of any action or steps towards the induction of the plaintiff into the army of the United States until the decision of the Court herein."

On March 24th, 1941, I signed an order requiring the defendants to show cause "why an order should not be made and entered herein restraining the said defendants their agents, servants or employees and any and all other persons acting under the Selective Training and Service Act of 1940, from taking any steps towards the induction of the plaintiff into the armed service of the United States pending the hearing and determination of this action for a peremptory or alternative writ of mandamus. * * *"

The order to show cause itself contained a temporary restraining provision until the hearing and determination of this motion. The plaintiff was to have been inducted into the armed forces of the United States on March 25th.

Plaintiff contends that he erroneously gave the date of his birth as September 22nd, 1905, when he registered and on his questionnaire, which would make him thirty-five years old and subject to the provisions of the Selective Training and Service Act, whereas he now claims to have been born September 22, 1904, which would place him outside the age limit of the Act, § 2, 50 U.S.C.A. Appendix § 302.

The United States Attorney has appeared herein for the defendant Local Board and in addition to submitting affidavits on the issue, he has moved to dismiss the complaint "for lack of jurisdiction or in the alternative for failure to state a cause of action".

Considering this suit as one for a writ of mandamus, as it claims to be, it must be dismissed because a federal district court has no jurisdiction of original proceedings seeking relief by mandamus. See Note 142 under § 24 (1) of the Federal Judicial Code, 28 U.S.C.A. § 41 (1), and the cases cited therein. A suit for a writ of mandamus is not an action at law or a suit in equity under § 24 of the Federal Judicial Code, 28 U.S.C.A. § 41. If this Court has no jurisdiction of the action itself, then manifestly the Court cannot grant any preliminary relief on a motion made therein.

Some of the powers of local boards are set forth in § 10 (a) (2) of the Selective Training and Service Act of 1940, 50 U.S. C.A. appendix, § 310 (a) (2), which provides in part: ...