improperly. The petitioner concedes that some confusion may arise because in paragraph 371a of the regulations, supra, it is provided that "* * * an appeal from any appealable local board classification * * * shall be made within five days after the local board has mailed to the registrant his Notice of Classification (Form 57), as distinguished from a Notice of Continuance of Classification (Form 58). * * *" (Italics supplied.) He points out that the regulations provide that a notice of continuance of classification is to be mailed by the Local Board to the registrant not only when it refuses to reclassify him, paragraph 387, supra, but also when an Appeal Board has decided his appeal adversely, Volume Three, Selective Service Regulations, Executive Order No. 8560, Promulgated by the President October 4, 1940, Section XXVII, Paragraph 377b(1), and where the President has similarly decided an appeal adversely to the registrant. Volume Three, Selective Service Regulations, Executive Order No. 8560, Promulgated by the President October 4, 1940, Section XXVIII, Paragraph 381(1). In the case of an adverse decision of the Appeal Board obviously no appeal could be addressed to it from its own judgment affirming the Local Board and in the case of such a decision by the President there can be no further appeal. He submits that it was the latter two situations which the framers of the regulations had in mind when they distinguished between the notice of classification (form 57) and the notice of continuance of classification (form 58). Hence, it is argued the language of paragraph 371a places no limitation upon that of paragraph 388 which is broad enough to comprehend appeals from refusals to re-classify.
The government insists that there is no authority in the law or regulations authorizing an appeal from the refusal of a Local Board to re-classify.
We feel that to rule in aggreement with the petitioner's contentions would require an interpolation of words in the regulations which do not now exist. Paragraph 388, supra, makes provisions for appeals from re-classification. No mention is made of appeals from a refusal to re-classify. The effect of providing for appeals from refusals to re-classify would be to open the door to innumerable appeals sufficient, perhaps, to "bottle-neck" the entire system of Selective Service.Unless the omission by Congress is entirely obvious and patent, we hold that the court is without authority to read additional language into the law and the regulations.
Furthermore, we cannot agree with the construction placed upon the distinguishing phraseology, reference to which was made by petitioner, and we hold that there is no provision for appeal after the forwarding of form 58, upon a decision to refuse to re-classify.
In general, Filomio's application for a re-classification, based upon the alleged change in circumstances, is analogous to a petition in an ordinary civil for a new trial because of newly discovered evidence. In the latter case the general rule is firmly established that the trial court's refusal to grant a new trial will not be disturbed in the absence of manifest abuse of discretion. Royal Ins. Co. v. Eastham, 5 Cir., 71 F.2d 385, certiorari denied 293 U.S. 557, 55 S. Ct. 110, 79 L. Ed. 658; District Nat. Bank v. Maiatico, 61 App.D.C. 242, 60 F.2d 1078; McIntyre v. Texas Co., 2 Cir., 48 F.2d 211; State Bank v. Henderson County, 6 Cir., 35 F.2d 859, certiorari denied, 281 U.S. 728, 50 S. Ct. 245, 74 L. Ed. 1145; Fitzgerald v. Dodson, 58 App.D.C., 150, 26 F.2d 522; Ward v. Morrow, 8 Cir., 15 F.2d 660. Otherwise the trial court's determination being discretionary, is not reviewable on appeal. Ellerd v. Griffith, 5 Cir., 29 F.2d 402, Adkins-Polk & Co. v. G. Amsinck & Co., 5 Cir., 10 F.2d 361. Thus, in this analogous situation one discerns a degree of finality in the trial court's decision to refuse a new trial on the ground of newly discovered evidence and in similar action by a Local Board.
A number of cases arose following the enactment of the Selective Service Act of 1917, 50 U.S.C.A. § 226 note, in which use was sougt to be made of the writ of habeas corpus for release from the army. Among them is the case of United States v. Kinkead, D.C., 248 F. 141, affirmed, 3 Cir., 250 F. 692, in which appears the following pertinent comment with reference to the decisions of draft boards and the conclusiveness of their determinations:
"The next question is whether their decision may be reviwed in this proceeding. The act provides that decisions of the district boards shall be 'final,' save only as the President may see fit to modify or reverse them. I think it may be considered as settled beyond all question that Congress may make the decisions of the executive departments or subordinate officials thereof, to whom it has committed the execution of acts similar in their general nature to this, final on questions of fact which arise in administering such acts; and, when it has done so, the courts may disturb such decisions only when it appears that the party involved has not been afforded a full and fair hearing, or that the executive officers have acted contrary to law, or have manifestly abused the discretion committed to them by the statute. It has been so held in respect to the present act in Angelus v. Sullivan, supra [2 Cir., 246 F. 54]; [United States ex rel.] Koopowitz v. Finley, supra [ D.C., 245 F. 871]; [Ex parte] Hutflis, supra [ D.C., 245 F. 798]; United States ex rel. Troiani v. Heyburn, supra [ D.C., 245 F. 360]; Summertime v. Local Board, Div. No. 10, supra [ D.C., 248 F. 832]; Ex parte Beck (D.C.Mont.) 245 F. 967. Such conclusion is the necessary result of a long line of decisions of the United States Supreme Court, some of which are as follows: Nishimura Ekiu v. United States, 142 U.S. 651, 12 S. Ct. 336, 35 L. Ed. 1146; Fong Yue Ting v. United States, 149 U.S. 698, 13 S. Ct. 1016, 37 L. Ed. 905; Gonzales v. Williams, 192 U.S. 1, 24 S. Ct. 177, 48 L. Ed. 317; Chin Yow v. United States, 208 U.S. 8, 28 S. Ct. 201, 52 L. Ed. 369, Low Wah Suey v. Backus, 225 U.S. 460, 32 S. Ct. 734, 56 L. Ed. 1165; Zakonaite v. Wolf, 226 U.S. 272, 33 S. Ct. 31, 57 L. Ed. 218; Lewis v. Frick, 233 U.S. 291, 34 S. Ct. 488, 5, L. Ed. 967; Gegiow v. Uhl, 239 U.S. 3, 36 S. Ct. 2, 60 L. Ed. 114; United States v. Ju Toy, 198 U.S. 253, 25 S. Ct. 644, 49 L.Ed 1040. The Supreme Court has very recently held that the act in question is not repugnant to the Constitution, because it confers semijudicial powers upon administrative officers. * * *
"It is a necessary outgrowth of the above rule that if, in any given case, there was no evidence before such executive officers upon which they could reach a given conclusion, their decision can be reviewed by the courts, because in such a case they would have acted contrary to law, and, in effect, have denied a fair hearing. And so it has been uniformly held that, if there was any evidence before such officers to justify their conclusion, the courts could not disturb their findings of fact. No question is raised in this case that the relator did not have a fair hearing, in the sense that every opportunity was afforded to him to present evidence in support of his claim. The return of the local board is to the effect that they considered all of the evidence which is now before this court. It is permissible, therefore, to inquire in this proceeding only as to whether there was any evidence before the boards from which they could have found that the relator is a citizen of the United States." 248 F. 141, 143, 144.
Again in Ex parte Platt, D.C., 253 F. 413, the court said:
"There seems to be no merit to this second contention. The Selective Draft Law Cases, 245 U.S. 366, 38 S. Ct. 159 [62 L. Ed. 349], L.R.A.1918C, 361, Ann.Cas.1918B, 856, establish the proposition that the local board has the power to exercise certain judicial functions, even though it is not a court, and subject to the Judiciary Law as a whole. The construction of the Draft Law * * * as indicating the intention of Congress, makes it certain, in the opinion of this court, that the determination of the local board is final, except by appeal to the district board or the President, in any case where the local board has authority to act. Such determination involves an exercise of judgment based upon such evidence as is before the board. It is like the determination of an executive officer or of a board of inquiry in an immigration hearing, and, when made final by Congress, is not the subject of appeal to the courts.
"The question is therefore limited to the familiar proposition, based upon the decision in Angelus v. Sullivan [2 Cir.], 246 F. 54, * * * that the courts have jurisdiction over any official presuming to act under a statute, to the extent of restricting him to his powers given by that statute, and to prevent, by writ of habeas corpus, wrongful detention where the authority of that statute has been exceeded. Gegiow v. Uhl, 239 U.S. 3, 36 S. Ct. 2, 60 L. Ed. 114; United States v. Ju Toy, 198 U.S. 253, 25 S. Ct. 644, 49 L. Ed. 1040." 253 F. 413, 414.
Finally in Arbitman v. Woodside, 4 Cir., 258 F. 441, the court made the following comment: "The rule is established that the action of such executive boards within the scope of their authority is final, and not subject to judicial review, when the investigation has been fair and the finding supported by substantial evidence; but upon proof that the investigation has not been fair, or that the board has abused its discretion by a finding contrary to all the substantial evidence, relief should be given by the courts under the writ of habeas corpus. United States v. Ju Toy, 198 U.S. 253-280, 25 S. Ct. 644, 49 L. Ed. 1040; Lewis v. Frick, 233 U.S. 291-304, 34 S. Ct. 488, 58 L. Ed. 967; Tang Tun v. Edsell, 223 U.S. 673-675, 32 S. Ct. 359, 56 L. Ed. 606; Low Wah Suey v. Backus, 225 U.S.  466-468, 32 S. Ct. 734, 56 L. Ed. 1165; Angelus v. Sullivan [2 Cir.], 246 F. 54, 158 C.C.A. 280; [United States ex rel.] Koopowitz v. Finley (D.C.) 245 F. 871; [Ex parte] Hutflis (D.C.) 245 F. 798; United States ex rel. Troiani v. Heyburn (D.C.) 245 F. 360; Summertime v. Local Board, No. 10 (D.C.) 248 F. 832; Ex parte Beck (D.C.) 245 F. 967; Wong Yee Toon v. Stump [4 Cir.] 233 F. 194, 147 C.C.A. 200." 258 F. 441, 442.
We conclude that neither the Selective Training and Service Act of 1940 nor the regulations promulgated thereunder gave Filomio the right to appeal from the decision of the Local Board to refuse to re-classify him.
The petitioner also makes the point that the Local Board has no alternative but to send a file to an Appeal Board where an appeal is requested and that only the Appeal Board has the jurisdiction to dismiss the appeal if it is unwarranted. Since we have ruled that there is no appeal from a refusal of the Local Board to re-classify the point is without merit in such instance.
In view of the fact that the disposition of such refusal by the Local Board is final, in so far as relief from executive agencies established under the act is concerned, the question arises as to whether the court can afford petitioner any relief. This, as is indicated in the cases cited above, we cannot do unless the denial of his re-classification constitutes an abuse of discretion upon the part of the board. In other words our conclusion that the action of the Local Board in refusing to re-classify him is final and not subject to appeal to the Appeal Board does not leave the registrant helpless if it is arbitrary and capricious. Under such a circumstance he may have the action reviewed by the court, and while petitioner in this case has rather closely confined his complaint to the denial by the Local Board of his appeal from its refusal to re-classify, the court should, while the matter is presently before it, determine whether the refusal, itself, was an abuuse of its discretion and the result of arbitrary action which would render it void. We will now direct our inquiry to this aspect of the Local Board's action.
The petitioner concedes that the court cannot grant him any relief in the nature of an appeal from the Board's decision on original classification. It may be remarked that from the evidence before the court this Local Board, in holding that the father and mother and two sisters, claimed to be dependents of the petitioner, could subsist comfortably on an income of $250 a year with the contribution of $5 a week from a sister, likely to be discontinued due to the seasonableness of her job and some nebulous reference to a country place in which they might live in the summertime, was, to say the least, a shadowy basis for classifying the petitioner as being without dependents. Still, in the present state of these proceedings the court may not interfere with that decision. We are relegated to an investigation to ascertain only whether the refusal to re-classify had beneath it any basis.
Under paragraph 387 of the regulations, supra, Filomio was not entitled to a reconsideration of his classification unless he presented new evidence to the Local Board. His "new evidence" constituted a change in circumstances arising out of the cessation of his sister's wages from which she contributed about $5 weekly to the support of her family. Eugene L. Larkin, Chairman of the Local Board, testified that the Board considered this proffer of alleged new evidence, but refused to re-classify upon it because the circumstances of the sister, at the time of Filomio's original classification, were reviewed, and her weekly contribution was not considered a support for her family but reimbursement for her own living expenses. Thus, the refusal by the Board was apparently based upon its consideration that no "new evidence" was proffered to it because it already had contemplated the possibility that the petitioner's sister would cease her contribution of $5 per week when the original classification was made. Therefore, the court is not in position to hold that the refusal of the Local Board to re-classify was without any foundation. We conclude that it was within the Board's discretionary power to reject the proffer of alleged new evidence as a basis for re-classification and that its determination so to do was a reasonable exercise of that power with which this court cannot interfere.
The court takes cognizance of the fact that the Selective Service Boards are composed of citizens, who give their time and effort gratuitously as a public service in administering this law. At the same time it is important for them to remember that they are dealing with the sacrifices of the youth of this country, which far outweigh their own contributions, handsome as they may be. In Ver Mehren v. Sirmyer, supra, the court very aptly said:
"The induction of a civilian into military service is a grave step, fraught with grave consequences. It means, among other things, that he is subject to military law instead of to the ordinary common and statutory law. A new status is taken on; he becomes a soldier; new responsibilities are assumed; failure to strictly meet these responsibilities is followed by extreme punishment. All this is quite right and necessary, and meets no criticism at our hands. But what we emphasize is the necessity that all the steps prescribed by statute, and by regulations having the force of law, shall be strictly taken before it can be held that a person has been lawfully inducted into the military service." 36 F.2d 876, 881.
Several obvious irregularities characterized the conduct of this Local Board, among which were:
1. The failure to give formal consideration to the petitioner's request for re-classification. The evidence indicates that his letter was merely passed around by the Board members and perfunctory attention was given to the same.
2. The Board failed to send out the required form 58.
3. The Board stood upon ceremony in connection with petitioner's request for an appeal claiming that an appeal must be executed on the original questionnaire blank not in the possession of the petitioner but which it retained in its own files at all times.
4. The showing before this court indicated that the decision of the Board on original classification was made on very flimsy foundation of fact, and, to say the least, sketchy reasoning.
Unfortunately none of these delinquencies is such as to give the court the right to intrude or substitute its judgment for that of the Local Board under the type of proceedings brought by this petitioner.
Had this petitioner been alert and filed an appeal from the original classification of his Local Board within the time limited by law, the action of the Board might have been subjected to review by the Appeal Board with advantageous result to the petitioner. However, he did not exercise his right in this respect within time. The importance of prompt compliance by all registrants with the provisions of the law in order that their rights may receive the maximum protection is emphasized in this case.
Under all of the foregoing considerations we must discharge the writ of habeas corpus and an order should be taken accordingly.
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