United States v. Downer, 375.
| Decision Date | 29 May 1944 |
| Docket Number | No. 375.,375. |
| Citation | 143 F.2d 125 |
| Parties | UNITED STATES ex rel. BEYE v. DOWNER et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Harold Johnson, of New York City, for relator-appellant.
Harold M. Kennedy, of Brooklyn, N. Y. (Nathan T. Elliff, of Washington, D. C., and Vine H. Smith, of Brooklyn, N. Y., of counsel), for appellee.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
Appellant, born August 30, 1905, registered with his Local Board in New York City, pursuant to the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 301 et seq. He was given a physical examination by the Board which classified him in Class I-A1 and so notified him. From this classification he took no appeal to the Appeal Board. He repeatedly refused to report for induction. He claimed exemption as a conscientious objector, stating that he was a minister of religion; but, after an investigation proved that this contention was groundless, he abandoned it. Indicted for continued failure to report, he consented to do so. The indictment was dismissed on December 31, 1942. Meanwhile he was given another physical examination by the Local Board's examining physician, and on December 21, 1942, was ordered to report for induction on December 28, 1942. He did so. After a medical examination by an army physician, he was rejected on the same day because of "hemorrhoids, external, large, thrombosed."
Appellee admits that the regulations, issued pursuant to the Act, required the Local Board, upon appellant's rejection, to reopen his classification and classify him in Class IV-F.2 The Local Board did not thus reclassify him. On January 4, 1943, its chairman wrote to Colonel McDermott, New York City Director of Selective Service, narrating briefly the Board's experiences with appellant, and saying: On January 19, 1943, the City Director replied that "in view of the story" told him by the Board, appellant's case had been taken under advisement by a Medical Liaison Officer and the Director and that it had been decided to ask the Board to "resubmit" appellant to the Army induction station. In a letter of the same date, the Director wrote to the officer in charge of the "induction examining team," reciting the facts narrated by the Board, and stating that the Board had asked the Army to "waive" appellant's "physical disability and proceed with his induction as a matter of maintaining morale in the Local Board District"; the letter closed thus: "Will you be good enough to consider the facts in this case in re-estimating his acceptability." On January 22, 1943, the Board ordered appellant to report for induction on January 27. He did so. He was on that same day (a month after his previous rejection) found physically acceptable, and was inducted into the Army. Sometime later, an operation was performed upon him; its results do not appear from the record. On February 4, 1943, a petition for habeas corpus was presented to the district judge by appellant's sister on appellant's behalf, and a writ was issued and served upon appellee. On appellee's return to the writ, appellant's traverse to the return, and the facts agreed upon by the parties, as set forth above, the judge, after a hearing, entered an order dismissing the petition, quashing the writ, and remanding appellant to appellee. From that order appellant brings this appeal.
1. Admittedly, under the Regulations, the Board should have reclassified appellant as IV-F on or about December 28, 1942. It could, of course,...
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Duquesne Warehouse Co. v. Railroad Retirement Board
...acted in excess of their statutory powers. See, e.g., Goldman v. American Dealers Service, 2 Cir., 135 F.2d 398; United States ex rel. Beye v. Downer, 2 Cir., 143 F.2d 125; The Truth Seeker Co., Inc. v. Durning, 2 Cir., 147 F.2d 54; In the Matter of New York, New Haven & Hartford Railroad C......
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United States v. Cain, 418.
...v. Commanding Officer, 2 Cir., 142 F.2d 381, where we refused to consider the sufficiency of the evidence; and United States ex rel. Beye v. Downer, 2 Cir., 143 F.2d 125, where we sustained a writ for failure of a local board to follow Selective Service In the absence of an authoritative ru......
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