United States v. Baird, Misc. No. 544.

• Decision Date: 27 June 1941
• Docket Number: Misc. No. 544.
• Citation: 39 F. Supp. 388
• Parties: UNITED STATES ex rel. ERRICHETTI v. BAIRD.
• Court: U.S. District Court — Eastern District of New York

39 F. Supp. 388

UNITED STATES ex rel. ERRICHETTI v. BAIRD.

Misc. No. 544.

District Court, E. D. New York.

June 27, 1941.

Jochanon I. Rudavsky, of Brooklyn, N. Y., for petitioner.

Harold M. Kennedy, U. S. Atty., of Brooklyn, N. Y. (Frank J. Parker, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for respondent.

ABRUZZO, District Judge.

A writ of habeas corpus, dated June 10, 1941, directed Colonel Baird, Commanding Officer of Camp Upton, Yaphank, New York, to produce the body of Louis R. Errichetti, for the purpose of inquiring into the cause of his detention. The petition for the writ was made by Mary Errichetti, who stated that it was also on behalf of Carmella Errichetti, wife of the selectee.

The return of Colonel Baird stated that the selectee was being held by authority of the United States as a soldier in the Army of the United States, after he was lawfully selected for service therein and had been duly and regularly inducted under the provisions of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq.

The petitioner, Mary Errichetti, filed a traverse to the return on June 13, 1941, wherein she denied that Louis R. Errichetti was lawfully selected for service and that he had been duly and regularly inducted therein under the provisions of the Act.

As no new pertinent matter was submitted in the traverse, the decision herein must be determined entirely on the Case Record.

Errichetti was registered on October 16, 1940, and filed his questionnaire on December 26, 1940. He made a claim that his mother was a dependent because his father did not contribute to her support. It appears that his mother is fifty-nine years of age and his support of her began in 1935. He contributed $15 per week (from a salary of $23 per week) and his mother received $14 a week from other sources.

On March 6 and 7, 1941, he notified the Local Board of a change in his status, stating that he had been married on February 23, 1941, maintained his own home, his wife did not work and was not physically able to earn her own living and that she was partially under medical care.

On March 7, 1941, the notice to appear for a physical examination was mailed to the selectee and on March 15, 1941, he was examined and found qualified for general military service.

After his classification in Class 1-A on March 17, 1941, he appeared before the Government Appeal Agent and stated that he was engaged on September 5, 1940, that an engagement party had taken place at home and that he and his wife had been going together for two years prior to the formal engagement. He asserted that his wife had been told by a physician that she had a spot on her lung and probably had tuberculosis. A communication to the physician on March 22, 1941, elicited the fact that she did not have indications of tuberculosis.

The selectee appealed from the classification of the Local Board by signing a notice of appeal on the back of his questionnaire.

On April 22, 1941, the claim of dependency was reviewed by the Local Board and a minute on the back of the questionnaire shows this entry: "New Evidence—Class 1-A continued—suspicious, confusing statements."

On May 2, 1941, the Board of Appeal, handed down its decision continuing the selectee in Class 1-A by a vote of five to nothing. On May 8, 1941, he was sent a notice of continuation of classification and also notified to appear for induction into the Army on May 24, 1941.

On May 13, 1941, he and his wife appeared before the Local Board and the Government Appeal Agent and requested a further hearing, which was granted. The induction date was postponed awaiting the result of the X-ray of the wife. The minutes show that another physician who examined the wife of the selectee had informed the Local Board that the selectee and his wife had called upon him and requested a letter stating that the wife was unable to work.

On May 26, 1941, the doctor wrote to the Board and stated that his examination and X-rays showed that the wife had a healed primary tuberculosis lesion which should be watched in case of reactivation and that she should be examined and fluoroscoped every six months and X-rayed once a year.

The entire Board and Appeal Agent convened on May 27, 1941, and it was their unanimous opinion that the selectee should be continued in Class 1-A and inducted.

Pursuant to a notice, the selectee reported on June 4, 1941, took the oath of enlistment and is now in the Army of the United States at Camp Upton, Yaphank, New York.

The selectee claims that the Local Board in placing him in classification 1-A and not 3-A acted in a capricious and arbitrary manner and that its conclusions were not sustained by substantial evidence.

It is the respondent's contention that this selectee was lawfully selected for service and has been duly and regularly inducted into the Army under the provisions of the Selective Training and Service Act of 1940; and that the Board did not act capriciously or arbitrarily in arriving at its determination, but on the contrary its conclusion was sustained by the substantial evidence of the case record.

The Selective Training and Service Act of 1940, Section 10 (a), Subsection (2), 50 U.S.C.A.Appendix, § 310 (a) (2), provides: "* * * Such local boards, under rules and regulations prescribed by the President, shall have power within their respective jurisdictions to hear and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this Act of all individuals within the jurisdiction of such local boards. The decisions of such local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe. * * *"

Under a similar section, a number of cases arose, which have been reviewed in United States ex rel. Filomio v. Powell et al., D.C., 38 F.Supp. 183, 188, which states at page 188:

"A number of cases arose following the enactment of the Selective Service Act of 1917, 50 U.S.C.A. § 226 note, in which use was sought to be made of the writs of habeas corpus for release from the army. Among them is the case of United States v. Kinkead, D. C., 248 F. 141, affirmed 3 Cir., 250 F. 692, in which appears the following pertinent comment with reference to the decisions of draft boards and the conclusiveness of their determinations:

"`The next question is whether their decision may be reviewed in this proceeding. The act provides that decisions of the district boards shall be "final," save only as the President may see fit to modify or reverse them. I think it may be considered as settled beyond all question that Congress may make the decisions of the executive departments or subordinate officials thereof, to whom it has committed the execution of acts similar in their general nature to this, final on questions of fact which arise in administering such acts; and, when it has done so, the courts may disturb such decisions only when it appears that the party involved has not been afforded a full and fair hearing, or that the executive officers have acted contrary to law, or have manifestly abused the discretion committed to them by the statute. It has been so held in respect to the present act in Angelus v. Sullivan, supra (2 Cir., 246 F. 54); United States ex rel. Koopowitz v. Finley, supra (D.C., 245 F. 871); (Ex parte) Hutflis, supra (D.C., 245 F. 798); United States ex rel. Troiani v. Heyburn, supra (D.C. 245 F. 360); Summertime v. Local Board, Div. No. 10, supra (D.C., 248 F. 832); Ex parte Beck (D.C.Mont.) 245 F. 967. Such conclusion is the necessary result of a long line of decisions of the United States Supreme Court, some of which are as follows: Nishimura Ekiu v. United States, 142 U.S. 651, 12 S.Ct. 336, 35 L.Ed. 1146; Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905; Gonzales v. Williams, 192 U.S. 1, 24 S.Ct. 177, 48 L.Ed. 317; Chin Yow v. United States, 208 U.S. 8, 28 S.Ct. 201, 52 L.Ed. 369; Low Wah Suey v. Backus, 225 U.S. 460, 32 S.Ct. 734, 56 L. Ed. 1165; Zakonaite v. Wolf, 226 U.S. 272, 33 S.Ct. 31, 57 L.Ed. 218; Lewis v. Frick, 233 U.S. 291, 34 S.Ct. 488, 58 L.Ed. 967; Gegiow v. Uhl, 239 U.S. 3, 36 S.Ct. 2, 60 L. Ed. 114; United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040. The Supreme Court has very recently held that the act in question is not repugnant to the Constitution, because it confers semijudicial powers upon administrative officers. * * *

"`It is a necessary outgrowth of the above rule that if, in any given case, there was no evidence before such executive officers upon which they could reach a given conclusion, their decision can be reviewed by the courts, because in such a case they would have acted contrary to law, and, in effect, have denied a fair hearing. And so it has been uniformly held that, if there was any evidence before such officers to justify their conclusion, the courts could not disturb their findings of fact. No question is raised in this case that the relator did not have a fair hearing, in the sense that every opportunity was afforded to him to present evidence in support of his claim. The return of the local board is to the effect...