where inquiry is deemed appropriate is interesting. The court said:
"The courts have uniformly ruled that the findings whereon draft boards base their decisions are final and may not be disturbed by the courts unless it appears that the person affected thereby has not been afforded a full and fair hearing or unless the members of the local draft board acted contrary to law or abused the discretion reposed in them by the statute. United States ex rel. Pasciuto v. Baird, D.C.E.D.N.Y., 39 F.Supp. 411, 413; United States ex rel. Broker v. Baird, D.C.E.D.N.Y., 39 F.Supp. 392, 394; United States ex rel. Errichetti v. Baird, D.C.E.D.N.Y., 39 F.Supp. 388, 391, 392; United States ex rel. Filomio v. Powell, D.C.N.J., 38 F.Supp. 183, 189; Dick v. Tevlin, D.C.S.D.N.Y., 37 F.Supp. 836, 838. A similar rule had been evolved by court decision under the Selective Draft Act of 1917. * * * Arbitman v. Woodside, 4 Cir., 258 F. 441, 442; United States ex rel. Pascher v. Kinkead, 3 Cir., 250 F. 692, 694; Biotano v. District Board, D.C.N.D.Cal., 250 F. 812, 813. No jurisdiction is conferred upon the courts by the Selective Training and Service Act of 1940 * * * to review the findings of local draft boards. Shimola v. Local Board, D.C.N.D.Ohio, 40 F.Supp. 808, 810; Petition of Soberman, D.C.E.D.N.Y., 37 F.Supp. 522, 523. Here again the rule is similar to the construction placed upon the Selective Draft Act of 1917. See Ex parte Hutflis, D.C.W.D.N.Y., 245 F. 798, 799. Nor is the merit of the decision by a local draft board subject to court review upon writ of certiorari ( Allison v. Local Board, D.C.N.D.Cal., 43 F.Supp. 896) or upon writ of habeas corpus. United States ex rel. Troiani v. Heyburn, D.C.E.D.Pa., 245 F. 360, 362. However, a registrant who has been inducted pursuant to the Selective Service Act may, by writ of habeas corpus, obtain a judicial determination as to whether the local draft board acted in an arbitrary and capricious manner or denied the registrant a full and fair hearing. See United States ex rel. Pasciuto v. Baird, supra; United States ex rel. Errichetti v. Baird, supra; Application of Greenberg, D.C.N.J., 39 F.Supp. 13, 16; United States ex rel. Filomio v. Powell, supra, 38 F.Supp. at page 186; Dick v. Tevlin, supra.
* * *
"We think it is clear that, if a local draft board acts in an arbitrary and capricious manner or denies a registrant a full and fair hearing, the latter, although bound to comply with the board's order, may, by writ of habeas corpus, obtain a judicial determination as to the propriety of the board's conduct and the character of the hearing which it afforded."
I am constrained to hold that the writ of habeas corpus in this case was rightfully issued.
We are now faced with the second inquiry as to whether the action of the local board and the appellate agency in refusing to defer the petitioner by reason of his claim of dependency was the result of arbitrary and capricious action.
Petitioner was 24 years of age. In conformity with the law he registered and submitted his questionnaire in which he set forth information concerning himself and his request for deferment. He indicated that his father and mother were dependent upon him for their support. He wrote: "My father unable to continue in business due to permanent illness and my mother who has to be continuously attending him." He stated that he was conducting the business for his father who was permanently ill and would not be able to return to business. The business consisted of a manufactory of plastic window displays. He placed his earnings at $18 per week. An affidavit by his father informed that he was being treated for rheumatic heart disease and was incapable of work. He further stated that his son Julius, the petitioner, operated the business for him and that without the petitioner it would have to shut down. Four employees were concerned in the business but none of them was competent or qualified to conduct the business in the absence of the petitioner. The continuance of the business was vital to the maintenance of the affiant and his wife. Doctors filed affidavits corroborating the physical disability of petitioner's father. The petitioner further indicated that the value of the business was about $5,000 and that his father drew $50 a week from it. It was also indicated that the father and mother were owners of two properties; one, a dwelling valued at $5,000, and the other a bungalow valued at $1,500.
The reason for disallowing the claim of dependency by the board is not shown in the file, but its action was affirmed by the appellate agency under the Act. There is no question raised as to the fairness and fullness of the hearing which was accorded to the petitioner. He was given full opportunity to present his position to the board. The board had ample evidence before it to support its decision that the parents of the petitioner could sustain themselves in some manner for the duration of the war and to alter that decision would be purely a substitution of the court's judgment for that of the executive agencies under the Act and would make the court instead of the executive agencies the deciding mechanism as to who should serve in the Army, a function reserved alone for the Selective Service agency.
It has been suggested on the record that since the institution of these proceedings the petitioner's father has succumbed to the illness from which he was suffering. This unhappy event in no way alters the court's decision and the writ of habeas corpus will be discharged.
This finding by the court would have disposed of the entire matter but the respondents insisted that the court take cognizance of their arguments for a decision upon their proposition that the issuance of the writ was improper rather than rest a ruling solely upon a finding that petitioner had failed to sustain his charges that the action of the Selective Service agencies was arbitrary and capricious.
The respondents should take an order discharging the writ of habeas corpus and remanding the petitioner to their custody.