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June 15, 1942

PAULLIN, Lieut. Col., et al.

The opinion of the court was delivered by: FORMAN

Micheli filed a petition in which he prayed, among other things, for the issuance of a writ of habeas corpus to inquire into his alleged unlawful detention in the United States Army. He charged in the petition that Local Board No. 6 of Union City, New Jersey, denied to him his lawful rights, by placing him in Class I-A under the Selective Training and Service Act of 1940, *fn1" thereby making him immediately eligible for service in the armed forces of the United States when he should have been classified in III-A under the said Act as a person having dependents, namely, his father and mother.

 An order was issued to the respondents directing them to show cause why the prayer of the petition should not be granted. They filed a demurrer and moved for dismissal of the petition because the petitioner's only claim was that he was entitled to an executive deferment on the ground of dependency and the local board having acted within its jurisdiction in denying the claim the petitioner was not entitled to the writ. The motion to dismiss was denied and the writ was allowed.

 A return was filed by the respondents in which they produced the petitioner and the original file containing the record before the Selective Service Board. The petition was drafted in an artless manner but conveyed sufficient material allegations to make known the position of the petitioner and that he intended to charge that the draft board had acted capriciously and arbitrarily in its decision to refuse his claim for deferment.

 The issues presented are as follows:

 1. May the District Court issue a writ of habeas corpus where the petitioner alleges that his claim for exemption or deferment based upon dependency has been denied arbitrarily and capriciously by the agency set up by the Selective Training and Service Act, and he, pursuant thereto, has been inducted into the army?

 2. If so, was this petitioner lawfully inducted?

 The respondents argue that the petitioner had no standing to have the writ issued on the ground that the claim for dependency had been denied by the board arbitrarily and capriciously. They contended that the Selective Training and Service Act of 1940 provides for statutory exemptions and executive deferments. The statute provides exemptions for certain persons and officials, as for instance, judges, governors, etc. The respondents do not challenge the right of a court to inquire where a petitioner seeks a writ of habeas corpus on an allegation that the draft board has failed to recognize his status as a statutory exemption. Claims for deferment on the ground of dependents, say the respondents, fall into the class of executive deferment, into the granting of which courts may not inquire by way of habeas corpus, because the decision of the executive machinery set up by the Act is final.

 The respondents have reviewed the history of the present Selective Service legislation as compared with the Draft Acts of 1863 and 1917, 12 Stat. 731 and 50 U.S.C.A. Appendix, ยง 201 et seq., and they contend that an analysis of this history makes manifest the intent of Congress that the writ of habeas corpus should not be utilized to investigate the action of draft boards where a claim for deferment is denied. Respondents likewise claim that prior decisions of the courts based upon alleged denial of jurisdiction of boards under the 1917 act and decisions in cases involving alleged arbitrary denial of executive discretionary deferments under this Act do not justify the issuance of a writ of habeas corpus in this case. They also submit that the issuance of writs of habeas corpus in immigration cases forms no basis for the issuance of the writ in this case and that if, indeed, writs have been issued upon the basis of the so-called executive exemptions under any of the Selective Service Acts, including the 1940 Act, that such writs were issued because the distinctions and arguments made in this case have never been heretofore presented.

 The respondents allege that the improvident issuance of writs in cases such as this results in unnecessary impairment of the war effort. It is necessary, they say, for the Army to disrupt its training plans and revise its unit and at times Selective Service Board members are required to leave their work and travel to distant districts to be present at hearings, if writs are issued by the courts. They argue that men who are within the group made liable for service by Congress are not deprived of any right or liberty when they are denied dependency deferments by local boards and agencies of appeal acting within their jurisdiction because dependency deferments are for the benefit of the government and are not a matter of right.

 Excerpts of speeches in hearings and in Congress in connection with the passage of the 1917 and 1940 Acts are quoted by the respondents to show that Congress intended that there should be no inquiry into the decisions of Boards under the 1940 Act where deferments are denied on the grounds of alleged dependency, such as those set up in the petition in this case. I am not persuaded by them, for it is my belief that if Congress had intended that the right to a writ of habeas corpus, which even the respondents admit to be "a precious safeguard of personal liberty", was to have been suspended in this connection, Congress would have said so in language that could not be misunderstood.

 The distinction drawn by the respondents between the right of a selectee to have a court inquire into the action of a draft board in refusing to classify him in a status in conformity with an alleged statutory exemption and the refusal of the draft board to act upon a claim for deferment upon the ground of dependency is, I believe, an artificial one. If one alleging a refusal upon the part of the draft board agencies to recognize his official status of "statutory" exemption is entitled to have a court inquire into its action by way of habeas corpus, one who alleges that he has not been given a fair hearing upon a claim for deferment based on the ground of dependency or that the decision upon his claim is the result of action that is arbitrary or capricious should be equally entitled to a writ enabling a court to inquire into his charges in the absence of express language indicating that Congress authorized the suspension of the writ in such circumstances. It is thoroughly understood that upon a writ of habeas corpus the court may not act as an appellate body to substitute its judgment for that of the executive agencies named in the Selective Training and Service Act. It remains for the court in such a proceeding but to determine whether a full and fair hearing had been accorded the subject of the writ and whether the decision, into which inquiry is directed, was arbitrary and capricious without basis to support it.

 It does not follow, as contended by the respondents, at least in this district, that the unimpairment of the right of the court to issue writs of habeas corpus in cases like this will offend the nation's war effort and cause the disruption in training plans as envisioned by the respondents. After a year and nine months operation of the Selective Training and Service Act and six months of actual war, an examination of the files of this court covering all such litigation in an area embracing many centers of concentration of scores of thousands of troops discloses that there have been but 13 writs of habeas corpus *fn2" allowed to persons alleging unlawful deprivation of their rights in their induction into the armed forces. And at least two of these cases concern themselves with the so-called statutory exemptions defined by the respondents, inquiry into which by the ...

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