The opinion of the court was delivered by: FORMAN
The petition for a writ of habeas corpus filed herein is executed on behalf of Fred Filomio by David Stein, his attorney, and alleges the following facts:
Fred Filomio is confined and restrained of his liberty at Fort Dix, New Jersey by reason of an order of Local Board No. 102, County of Bronx, State of New York, pursuant to the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix § 301 et seq.
On or about December 24, 1940, the Local Board classified Fred Filomio in Class I-A as available and fit for general military service on the basis, among other things, that his sister Evelyn Filomio was then working and was able in part to contribute towards the support of Fred Filomio's father and mother. He was notified to appear for induction in the armed forces of the United States on the 13th day of January, 1941.
Subsequent to this classification Evelyn Filomio lost her position, and became unable to contribute to the support of the said parents. Accordingly, Fred Filomio filed with the Local Board a request for a reclassification on the ground of dependency. The Local Board on or about January 10, 1941, considered the application but declined to re-classify him on the basis of the change in status, and failed to notify him of this action.
Fred Filomio appealed from this action by letter directed to the Local Board demanding in part: "That you consider this my appeal from your failure to re-classify and transmit my entire folder to the Appeals Board for action."
The Local Board declined to transmit the folder to the Appeals Board, and notwithstanding the fact that an appeal stays induction under the Selective Training and Service Act of 1940, Filomio has been transferred to Fort Dix, New Jersey, but he has refused to take an oath of induction.
In consequence of the above allegations a writ of habeas corpus was issued directing that Filomio be produced before this court.
At the hearing on the return of the writ the following facts were disclosed:
Eugene L. Larkin, Chairman of the Local Board, testified that it was dissatisfied with the statements in Filomio's questionnaire, and, hence, it had Filomio before it for a hearing on November 22, 1940, and it determined "that his family were very comfortably situated, that they had a country place where they spent the summer, and his income was unimportant to the family." Accordingly, he was placed in Class I under the Act. When the physician's report was received on December 24, 1940, Filomio was placed in Class I-A. Notice to report for induction on January 13, 1941, was received by Fred Filomio on December 26, 1940.
On January 4, 1941, David Stein, attorney as aforesaid, wrote a letter to Joseph R. Damico, the Appeals Agent of the Local Board, which was received on January 6, 1941, describing the financial dependency of Filomio's parents and sisters. In addition, it was stated that notwithstanding the fact that time for appeal had elapsed, the Local Board should either permit an appeal in view of the fact that induction had not yet occurred, or in the alternative, re-classify.
On January 8, 1941, David Stein addressed another letter to the Board and forwarded it together with Fred Filomio's affidavit so that it was received by the Board on the same day. The letter stated that Evelyn Filomio no longer worked or contributed funds to her parents. An extension of time to appeal from the original classification was requested, or in the event the Board felt powerless to grant such extension, application for re-classification was made and upon denial of the latter an appeal was sought from that ruling.
The affidavit of Fred Filomio stated that Evelyn Filomio, who had been employed in a doll factory at $15 a week, was no longer employed. The same relief is requested as in the letter of David Stein; specifically, in the following language: "In the event that you deny me re-classification and deny an extension of time to appeal, that you consider this as my appeal from your failure to re-classify, and transmit my entire folder to the Appeals Board for action."
The Board declined to permit an appeal from the original classification, and took the position that since the application was not made within the five-day period prescribed by the regulations (see Selective Service Regulations, Paragraph 371a, quoted in full infra) an extension would not be granted.
Furthermore, the Local Board declined to re-classify although it does not appear that a formal hearing was had in this respect. The Chairman of the Board, Eugene L. Larkin, with reference to this conclusion, stated: "* * * there was nothing, no new evidence here; the fact that the sister who contributed $5 a week to the support of the family had lost her job, which he explained to us at great length at a prior occasion, was a seasonal job, she worked on dolls, I think it was, didn't constitute any reason for reopening the case. $5 a week is just enough to feed a person, not to support a family. We didn't give that any consideration whatsoever, and told him so, that his status was the same and we didn't see any reason for having a rehearing on his case unless some new evidence could be produced." Record, p. 17.
The Board also declined to forward papers in connection with Filomio's case to the Appeals Board, and, hence, in this fashion it declined to permit an appeal from its denial of re-classification.
Preliminary questions herein have been proffered by counsel for both the petitioner and the government. Filomio complains of the Board's failure to mail a notice of continuance of classification following its denial of re-classification. The regulations provide that: "If the local board refuses to reclassify, after the registrant has requested reclassification, because of a change in circumstances, it shall mail a Notice of Continuance of Classification (Form 58) to the registrant." Selective Service Regulations, Paragraph 387, quoted in full infra. Good practice upon the part of the Local Boards undoubtedly requires a notice of continuance of classification to be mailed. Fortunately, no harm has been done by this omission, since it appears that Filomio was apprised ...