United States v. Baird, Misc. No. 543.

• Decision Date: 30 June 1941
• Docket Number: Misc. No. 543.
• Citation: 39 F. Supp. 392
• Parties: UNITED STATES ex rel. BROKER v. BAIRD.
• Court: U.S. District Court — Eastern District of New York

39 F. Supp. 392

UNITED STATES ex rel. BROKER v. BAIRD.

Misc. No. 543.

District Court, E. D. New York.

June 30, 1941.

Milton H. Frankfurt, of New York City, for petitioner.

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

ABRUZZO, District Judge.

The writ of habeas corpus in this proceeding was obtained on behalf of Edward John Broker, by his wife, Antoinette Broker, for the purpose of inquiring into the propriety of the induction into the Army of the United States of her husband.

The selectee was inducted into the service on June 4, 1941, under the provisions of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq. This petition was filed on June 7, 1941. Pursuant to this writ, the selectee was produced in court on June 13, 1941. On this date, the return of Colonel Baird was filed which stated that the selectee, Edward John Broker, was lawfully selected for service as a soldier in the Army of the United States by the authority of the United States under the provisions of the Selective Training and Service Act of 1940.

The petitioner, Antoinette Broker, filed a traverse to the return on June 13, 1941 in which she denied that the selectee was lawfully selected for service and that he had been duly and regularly inducted therein. No new pertinent matter was set forth in the traverse which necessitates basing this decision on the Case Record.

The Case Record before the Local Board indicates that Broker, the selectee, returned his questionnaire on February 24, 1941, in which he made no claim of any dependency or of his intention to be married.

On April 10, 1941, he appeared for a physical examination and on the same day was classified in Class 1-A.

On April 14, 1941, he filed a request for a reconsideration of his case because he planned to be married on June 1, 1941. He claimed to have purchased furniture on January 6, 1940. On April 21, 1941, pursuant to a notice, he was questioned before the Local Board as to his intention to be married. When asked concerning the furniture bill he presented, it was stated:

"Q. Who is Theresa Mirro? A. She is my mother-in-law.

"Q. This shows that the first payment was made by her? A. My mother-in-law put the down payment on it. At that time, I wasn't sure of my job. Then, the Union came in."

The selectee also produced a Finlay-Strauss account book showing the purchase of a ring on May 20, 1939 on which the last payment was made in 1940. The following colloquy ensued:

"Q. It doesn't say that it was an engagement ring? I don't think you have much of a claim here. A. My sister and I live alone. She couldn't live alone in the apartment. She couldn't keep it up."

On April 22, 1941, the Local Board mailed the selectee a notice of his continuance in Class 1-A and on April 26, 1941, he was sent a notice of selection and ordered to report for induction on May 7, 1941.

On May 5, 1941, he appeared before the Local Board with his fiancee and was informed that his time to appeal had expired, but he was granted a stay of his induction and his time to appeal was extended. On May 7, 1941, he signed a notice of appeal on the back of his questionnaire and the complete file was sent to the Appeal Board.

The Appeal Board affirmed the Local Board's determination by a vote of four to nothing.

On May 21, 1941, the selectee appeared at the Local Board and requested a sixty-day deferment, but on May 23, 1941, he was ordered to report for induction on June 4, 1941.

On June 2, 1941, the selectee's then fiancee (now his wife) exhibited a marriage license to the Local Board at which time she stated they intended to be married on June 3, 1941. The day of his induction, the selectee appeared at the Local Board at 6 A. M. and stated that he had been married the day before; later he was inducted and took the oath of enlistment.

The selectee is twenty-three years of age. The claim is made by him that his wife is totally dependent upon him for support and that the record indicates he proved to the Local Board that his marriage was contemplated and entered into after careful consideration and long planning and not for evasion.

In support of the draftee's contention many sections of the Selective Training and Service Act of 1940 are referred to.

This contention is opposed and it is urged that the Local Board acted properly in refusing to reclassify the selectee and that the action of the Board is conclusive upon the Courts.

Selective Service Boards are Administrative Bodies created by the Selective Training and Service Act of 1940, with powers, duties and procedures conferred by the law and the regulations not inconsistent with the law as prescribed by the President.

The Selective Training and Service Act of 1940, Section 10 (a), Subsection (2), 50 U.S.C.A. Appendix, § 310(a) (2), states: "* * * 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...