United States v. Embrey, 1742.

• Decision Date: 24 September 1942
• Docket Number: No. 1742.,1742.
• Citation: 46 F. Supp. 916
• Parties: UNITED STATES ex rel. CAMERON v. EMBREY et al.
• Court: U.S. District Court — District of Maryland

46 F. Supp. 916

UNITED STATES ex rel. CAMERON v. EMBREY et al.

No. 1742.

District Court, D. Maryland.

September 24, 1942.

Eli Cohan, of Baltimore, Md., for petitioner.

Allan Bernard J. Flynn, U. S. Atty., of Baltimore, Md., for respondents.

CHESNUT, District Judge.

This case presents a petition filed by Grace Thiede, mother of Charles Edward Cameron, for a writ of habeas corpus to inquire into the detention of Charles Edward Cameron who has been inducted into the military service of the country under the Selective Training and Service Act of 1940 as amended, 50 U.S.C.A. Appendix § 301 et seq. The burden of the complaint is that Grace Thiede, the mother of Charles Edward Cameron, is dependent upon him for support, and for that reason the Local Draft Board No. 3 at Cumberland, Maryland, should have classified Cameron in class 3-A instead of his classification as made by it in class 1-A. On the petition an order to show cause was signed and hearing set for Monday, September 21, and postponed at the request of counsel to Tuesday, September 22, 1942, when the hearing was held. The respondents showed cause against the issuance of the writ by answer in which there is recited the various formal proceedings before Local Board No. 3 and the appropriate Appeals Board finally resulting in the order for induction of Cameron into the Army of the United States as of September 11, 1942. No formal traverse was filed by the petitioner to the answer.

It will be noted that the petition is for a writ of habeas corpus and that it has been filed not by the inducted soldier but by his mother. Her final statement as a witness in this case was that she was not insistent that her son should not be inducted into the Army at the appropriate time, but rather that he should be properly classified, on the basis of her dependency upon him, in order that she would receive a larger allowance from his pay when later inducted into the Army in accordance with his classification under 3-A as contended for. It is conceded by counsel for the petitioner that the court has no authority to re-classify Cameron, as that is the function of the Local Boards, but nevertheless it is urged that unless Cameron is properly re-classified he should be released by the court under this writ of habeas corpus on the ground that he is illegally deprived of his liberty. The United States Attorney, Mr. Flynn, appearing for the respondent Army officers, makes no objection to the procedure in that the application is made by the soldier's mother rather than by himself, especially as it appears that Cameron is fully cooperating with his mother as the petitioner in the case. Nor is any question raised as to the propriety of the procedure in applying for the writ of habeas corpus. See Arbitman v. Woodside, 4th Cir., 258 F. 441.

Before stating the ultimate facts established by the testimony at the hearing, it is appropriate to refer to the controlling written law. The preamble to the Constitution of the United States recites that one of its purposes is to provide for the common defense. And Article I, section 8, empowers Congress to declare war and to raise and support armies, and maintain a Navy and to make rules for the government and regulation of the land and naval forces. During the first World War in which this country was a participant in 1917-18, there was in force the Selective Draft Act of 1917, 50 U.S.C.A. Appendix § 201, et seq. The present Selective Training and Service Act of 1940 as amended is a similar statute applicable prior to and during the present World War. The constitutionality of the present Act has not been challenged in this case but it has been upheld in a recent case in the Third Circuit, United States v. Lambert, 123 F.2d 395. The 1917 Act was held constitutional by the Supreme Court in the 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.

This is apparently the first of the cases under the 1940 Act in this district, although there have been a number of federal decisions on similar issues in other districts, some reported and some not reported. See Petition of Soberman, D.C.N.Y., 37 F. Supp. 522; Dick v. Tevlin, D.C.N.Y., 37 F. Supp. 836; United States ex rel. Filomio v. Powell, D.C.N.J., 38 F.Supp. 183; Application of Greenberg, D.C.N.J., 39 F.Supp. 13; United States ex rel. Errichetti v. Baird, D.C.N.Y., 39 F.Supp. 388; United States ex rel. Ursitti v. Baird, D.C. N.Y., 39 F.Supp. 872; Checinski v. United States, 6th Cir., 129 F.2d 461; Rase v. United States, 6th Cir., 129 F.2d 204. See, also, cases reviewed in War Law Notes — Judicial Review of Selective Service Board Classifications by Habeas Corpus — The George Washington Law Review, Vol. 10, 827. The effect of these cases as to the scope of judicial review of actions of Local Draft Boards is that the courts will not interfere with the action of the Board unless the classification order of the registrant under the Act has been made without a fair hearing, or the action of the Board has been arbitrary or capricious, or not based on substantial evidence. And this was the view taken by the Circuit Court of Appeals for this Fourth Circuit in a case under the 1917 Act, Arbitman v. Woodside, 4 Cir., 258 F. 441. None of the above cited cases under the present Act, except Application of Greenberg, has resulted in the release or reclassification of the registrant.

The controlling statutory provisions of the 1940 Act, so far as applicable to this particular case, are to be found in 50 U.S. C.A. Appendix § 305(e)(1) and 315(c). The former provides as follows:

"The President is also authorized, under such rules and regulations as he may prescribe, to provide for the deferment from training and service under this Act in the land and naval forces of the United States (1) of those men in a status with respect to persons dependent upon them for support which renders their deferment advisable". (Italics supplied.)

Section 315(c) provides:

"The term `dependent' when used with respect to a person registered under the provisions of this Act includes only an individual (1) who is dependent in fact on such person for support in a reasonable manner, and (2) whose support in such a manner depends on income earned by such person in a business, occupation, or employment."

The applicable regulations issued by the President dealt with classification of registrants in "part 622". 622.11 provides generally that registrants available for general military service shall be classified as 1-A; and 622.31 provides that "In class 3-A shall be placed any registrant upon whom one or more dependents as defined in section 622.32 depend for support in a reasonable manner, and who is not engaged in a civilian activity which is necessary to war production or which is supporting the war effort." 622.32 provides: "A person shall be considered a registrant's dependent only when all of the following are satisfied: (1) Such person must be the registrant's wife, divorced wife, child, parent, grandparent, brother, or sister, or must be a person under 21 years of age, or a person of any age who is physically or mentally handicapped, whose support the registrant has assumed in good faith; and (2) such person must be either a United States citizen or live in the United States, its Territories or possessions, or in a co-belligerent country, its territories or possessions." 622.33(b) provides: "The term `parent' includes a person who is supported in good faith by the registrant in a relationship similar to that of parent and child" and "(c) the term `brother' or `sister' shall include only a person having one or both parents in common with the registrant who is either under 18 years of age or is physically or mentally handicapped." Sections 622.35 and 622.36 provide that the Director of the Selective Service may from time to time prescribe the circumstances under which a person may be considered to be dependent for support upon the registrant; and may direct that "any or all registrants having dependents as defined in section 622.32 be classified or reclassified in the same manner as registrants who do not have such dependents"; but so far as I am advised the Director has not prescribed rules under these latter regulations.

Section 310 of the 1940 Act contains administrative provisions. Thereby the President is authorized to prescribe the necessary rules and regulations to carry out the provisions of the Act; to create and establish a Selective Service System; to provide for the classification of registrants, to establish civilian local boards including appeal boards and agencies of appeal that may be necessary to carry out the provisions of the Act;...