United States v. COMMANDING OFFICER, ETC., Civil Action No. 27.

• Decision Date: 15 February 1945
• Docket Number: Civil Action No. 27.
• Parties: UNITED STATES ex rel. LAWRENCE v. COMMANDING OFFICER OF McCOOK ARMY AIR FIELD et al.
• Court: U.S. District Court — District of Nebraska

58 F. Supp. 933

UNITED STATES ex rel. LAWRENCE v. COMMANDING OFFICER OF McCOOK ARMY AIR FIELD et al.

Civil Action No. 27.

District Court, D. Nebraska, McCook Division.

February 15, 1945.

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Franklin J. Kramer, of Elgin, Ill., and Frederick L. Wolff, of Omaha, Neb., for complainant.

Emmet L. Murphy, Asst. U. S. Atty., of Omaha, Neb., for respondents Colonel Bernard C. Castor, and Colonel John R. Kane, his successor as Commanding Officer of McCook Army Air Field.

DELEHANT, District Judge.

On December 7, 1944, this action was brought, upon the relation of James Dymond Lawrence, then and now a soldier of the United States Army with the grade of private, stationed at McCook army air field, within the area of this Division of the Court, to obtain a writ of habeas corpus for the purpose of testing the validity of his alleged detention in the army, and procuring his release therefrom. Lawrence will be referred to hereafter either as "the complainant" or as "the registrant." His demand for relief rests upon his contention that he was invalidly inducted into the army in pursuance of an arbitrary, capricious and unlawful classification, and his subsequent selection for military service by Local Selective Service Board No. 1, of Lake County, Illinois, with headquarters at Highland Park, Illinois, before which, as a resident of Lake County, Illinois, he was a registrant, and upon the arbitrary, capricious and unlawful affirmance of his classification by the appropriate Board of Appeal. The action of the several boards thus criticised in the amended complaint on which the case was tried, consisted of the classification of the complainant in Class I-A, as available and eligible for training and service in the armed forces of the United States, instead of in Class II-C, as entitled to an agricultural deferment. No other claim to deferment, and no claim whatsoever to exemption, from military service and training was ever made by the complainant, or is now asserted or relied upon. It is the classification only that is assailed. No irregularity in selection, once a classification for service and training was made, is pointed out.

The writ was issued; and on January 25, 1945, as an adjourned return date prescribed upon the complainant's request, the designated respondent, and his successor in office, made answer and return to the writ and to the complainant's amended complaint filed by leave of court, and acknowledged their limited custody over the complainant as a member of the army, and denied the complainant's allegations of caprice and arbitrary action on the part of the selective service boards in his classification. Upon the making and filing of the answer and return, the court proceeded immediately with the trial of the issues. The complainant testified orally, and introduced in evidence sundry depositions theretofore taken in his behalf in Illinois. The respondents cross-examined the complainant, and, through counsel not appearing of record in this court, had also cross-examined the witnesses testifying by deposition. But, otherwise, no evidence was introduced by the respondents, who have tendered, both by a formal motion to dismiss and by resting without introducing evidence, the issue of the insufficiency of the evidence presented in the course of the complainant's case in chief to support the writ.

By agreement of the parties, the court continued the case to this date for decision, receiving and considering, meanwhile, briefs from counsel in support of their respective positions.

The constitutionality of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 301 et seq., both in its general design and purpose, and in its employment of local boards and regional boards of appeal as the instrumentality for its enforcement, has been conclusively affirmed. Selective Draft Law Cases, Arver v. United States, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A. 1918C, 361, Ann.Cas.1918B, 856; United States ex rel. Bergdoll v. Drum, 107 F.2d 897, 129 A.L.R. 1165, certiorari denied 310 U.S. 648, 60 S.Ct. 1098, 84 L.Ed. 1414; Falbo v. United States, 320 U.S. 549, 64 S. Ct. 346, 88 L.Ed. ___; Seele v. United States, 8 Cir., 133 F.2d 1015, 1019.

Nor does the complainant question the validity of the act, or the legality of the selective service system as such. What he challenges is the concrete action of his own local board and board of appeal in his individual classification, and their respective rulings upon his demand for an agricultural deferment. The consideration of this contention, and of the evidence by which the complainant has attempted to sustain it, may well be preceded by a brief recollection of the very limited office of the courts in the determination of cases of this character.

Under the statute, Title 50 U.S.C.A.Appendix, § 303(a), liability for training and service in the armed forces of the nation is imposed upon every male citizen of the United States within certain age limits, which include the complainant, subject to designated exceptions which, save for the agricultural deferment later noted, have no relation to the complainant. By Title 50 U.S.C.A.Appendix, § 310, the president is clothed with power to create and establish a selective service system, consisting of a local board (and in many instances more than one such local board) in each county, or corresponding political subdivision, and regional boards of appeal. And such local boards are charged with the primary and local administration of the system of classification and selection, and vested with power, within their respective jurisdictions, to hear and determine, subject to the right of appeal to the proper boards of appeal, "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." And it is explicitly provided that, "the decisions of such local boards shall be final except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe." Like finality, subject only to the possibility of an appeal to the president (upon which no issue arises or under the statutes and regulations and the history of the complainant's classification could arise in this case), is accorded to the decision of an appeal board upon an appeal from a local board.

The decisions of local and appeal boards within the system are administrative acts. They are not judicial decisions subject to appellate review by the courts. No jurisdiction is conferred, under the act or otherwise, upon the courts of the United States to review the findings and orders of either the local boards or the boards of appeal. Bronemann v. United States, 8 Cir., 138 F.2d 333; United States ex rel. LaCharity v. Commanding Officer, 2 Cir., 142 F.2d 381, 382, affirming In re LaCharity, D.C., 53 F.Supp. 47; United States v. Grieme, 3 Cir., 128 F.2d 811; Drumheller v. Berks County Local Board No. 1, 3 Cir., 130 F.2d 610, 611, affirming D.C., 43 F. Supp. 881; Baxley v. United States, 4 Cir., 134 F.2d 998, 999; Goff v. United States, 4 Cir., 135 F.2d 610, 612; Fletcher v. United States, 5 Cir., 129 F.2d 262, 263; Lehr v. United States, 5 Cir., 139 F.2d 919; Biron v. Collins, 5 Cir., 145 F.2d 758, reversing D.C., 56 F.Supp. 357; United States v. Mroz, 7 Cir., 136 F.2d 221; Dick v. Tevlin, D.C.N.Y., 37 F.Supp. 836, 838; Petition of Soberman, D.C.N.Y., 37 F. Supp. 522; United States ex rel. Errichetti v. Baird, D.C.N.Y., 39 F.Supp. 388, 390, 391; United States ex rel. Broker v. Baird, D.C.N.Y., 39 F.Supp. 392, 394; United States ex rel. Pasciuto v. Baird, D.C.N.Y., 39 F.Supp. 411; Shimola v. Local Board, D.C.Ohio, 40 F.Supp. 808, 809; United States v. DiLorenzo, D.C.Del., 45 F.Supp. 590; United States ex rel. Beers v. Selective Training & Service Local Board, D.C. Wis., 50 F.Supp. 39, 40; United States ex rel. Mauro v. Downer, D.C.N.Y., 50 F. Supp. 412, 413. In a similar situation, under the comparable Selective Draft Act of 1917, 50 U.S.C.A.Appendix, § 201 et seq., judicial review of classifications was not allowed. Franke v. Murray, 8 Cir., 248 F. 865, 868, L.R.A.1918E, 1015.

Not only is no general right of judicial review, by appeal or certiorari provided, but, for the strict purpose of review of the actions of selective service boards, resort may not be had to the courts through quest of the Writ of Habeas Corpus. United States v. Grieme, 3 Cir., 128 F.2d 811, 814; United States ex rel. Troiani v. Heyburn, D.C.Pa., 245 F. 360; United States v. Walden, D.C.Ga., 56 F.Supp. 777; Biron v. Collins, 5 Cir., 145 F.2d 758, reversing D.C., 56 F.Supp. 357.

However, a registrant who, having been classified and selected for service and training, has exhausted the remedies allowed him under the act and has undergone induction into the military service, may, by appropriate Habeas Corpus proceedings, obtain a judicial determination of the legality of his induction in so far as he may assert that it is constitutionally invalid in consequence of action in his classification or selection by the selective service boards in an arbitrary or capricious manner or their denial to him of a full and fair hearing. Bronemann v. United States, 8 Cir., 138 F.2d 333, 337; United States v. Kauten, 2 Cir., 133 F.2d 703, 706, 707; United States ex rel. Phillips v. Downer, 2 Cir., 135 F.2d 521; United States ex rel. Beye v. Downer, 2 Cir., 143 F.2d 125, 126; United States v. Grieme, 3 Cir., 128 F.2d 811, 814; Drumheller v. Local Board No. 1, 3 Cir., 130 F.2d 610, 612, affirming D.C., 43 F.Supp. 881; Ex parte Stanziale, 3 Cir., 138 F.2d 312, reversing D.C., 49 F.Supp. 961; Goff v. United States, 4 Cir., 135 F.2d 610, 612; Dick v. Tevlin, D.C.N.Y., 37 F.Supp. 836, 838; United States ex rel. Filomio v. Powell, D.C.N.J., 38 F.Supp. 183, 186; United...