WILLSON, District Judge.
Appellant Justin K. McCarthy was inducted into the army on November 23, 1954, pursuant to the Universal Military Training and Service Act, 50 U.S.C.A. Appendix, § 451 et seq. His induction was involuntary and under protest. On the day of his induction he filed an application for a writ of habeas corpus in which he sought his discharge from service. A full hearing was had in the district court on the rule to show cause why the writ should not issue. The district judge discharged the rule and denied the writ. This appeal followed. The district court will be affirmed.
The evidence taken in the district court discloses the facts. They are not in dispute. In the district court and on this appeal, appellant asserts his induction was illegal because:
1. Local Draft Board No. 114, Northampton County, Pennsylvania, was illegally constituted.
2. He was denied procedural due process in that the board refused to give him a personal hearing as requested in writing on February 9, 1952.
3. He was classified I-A and while in such classification reached and passed the twenty-sixth anniversary of his birth and therefore the local board had no further jurisdiction to direct that he be inducted.
At the outset it is important to refer to the extent of the permitted judicial
The Supreme Court has also held that an inductee seeking a discharge by habeas corpus has the burden of showing that he was prejudiced by the procedure adopted and followed by the selective service officials. The range of inquiry is limited. The court does not sit in review. It is the impact of the procedure on the person seeking the writ that is crucial. Whatever potentialities of abuse a particular procedure may have, the case is at an end if the challenged proceeding cannot be said to have been so corrupted as to have made it unfair. Eagles v. United States ex rel. Samuels, 329 U.S. 304, 67 S.Ct. 313, 91 L.Ed. 308, and Eagles v. United States ex rel. Horowitz, 329 U.S. 317, 67 S.Ct. 320, 91 L.Ed. 318.
As the facts established in the district court are conclusive because uncontradicted, they are reviewed with the purpose primarily to inquire whether McCarthy established prejudice in his case.
Appellant was born August 28, 1927, at Bethlehem, Pennsylvania. He is a graduate of Lehigh University and of the law school of Columbia University. In 1945, appellant joined a naval reserve unit and entered training as a midshipman. His training duty as a midshipman ended in February, 1947. He registered under the 1940 Selective Training and Service Act on March 27, 1947. He was then in his twentieth year. Under the 1948 Act, now Universal Military Training and Service Act, he registered September 10, 1948, with Local Board 114, Northampton County, Pennsylvania. After returning his questionnaire he was classified I-D on August 11, 1949, which was based on his participation in the naval reserve. Appellant re-entered the naval reserve in September, 1948, but his re-entry did not qualify him for I-D because a condition precedent under the 1948 Act, effective June 24, 1948, for a I-D, required a minimum of ninety days of active duty in one of the armed services, that is army, air force, navy, etc., which appellant had not had. See 32 C.F.R. § 1622.13. At the date of the I-D classification, appellant was about to enter his senior year at Lehigh University. At that time he made no request to appear before the board, nor did he otherwise communicate with it. The I-D classification remained as such through 1950 and 1951. At the hearing in the district court, appellant acknowledged familiarity with the selective service regulations, and of the fact that under the 1940 Act his classification I-D was proper, but that under the 1948 Act it was improper. When the exact time that this realization came to appellant was not clearly shown. In February of 1952, while appellant was in his second year in law school, and after returning a questionnaire, he was given a I-A classification, the notice of which was dated February 5, 1952. On February 9, 1952, appellant wrote his board acknowledging
It is noted that the 1948 Act required that student classifications be reviewed annually. Appellant did not appeal from the second II-S, nor otherwise communicate with the board with regard thereto.
On May 28, 1953, appellant was classified I-A. On June 1, 1953, appellant wrote the board a two paragraph letter in which he acknowledged notice of his classification I-A, but said that he would not be eligible to graduate from Columbia until the first week of October, 1953; that he was not eligible to take the examinations for admission to the Bar of Pennsylvania without his degree; and that the registrar had assured him that he would forward a Form 109 as soon as his grades were computed and his scholastic standing determined, which would take place in the near future. The second paragraph of this letter requested the board to advise appellant whether he was entitled to take an appeal from the I-A classification until such time as Columbia informed the board as to his status or what procedure should be observed to preserve appellant's student classification "* * * until I receive my law degree in October, 1953."
This letter was not answered by the board and on June 17, 1953, the board mailed an induction notice. On June 22, appellant wrote the board requesting a postponement of induction to enable him to complete credits for his degree. In the meantime, appellant had entered summer school at Wisconsin for the purpose of making up his credits. The board first granted a five day and then a sixty day postponement of induction. While in Wisconsin, appellant first learned from his father of the postponement of his induction. Appellant's father was the government Appeal Agent. On July 6, 1953, from Wisconsin, appellant wrote another letter to the board. He requested that his case be reopened and again considered by the board. Among the reasons advanced for reconsideration were that he had received improper advice from the government Appeal Agent; that he had been denied the right to appear in person; that he was denied the right of being classified I-S by reason of the failure of the Appeal Agent and the board to properly advise him; that the board acted arbitrarily and capriciously in classifying him I-A without waiting a reasonable time to hear from Columbia; that the board acted arbitrarily and capriciously in classifying him I-A without allowing him thirty days in which to enlist or secure essential
A reference to appellant's second and third points in the light of the evidence reveals clearly that appellant was not prejudiced by the manner in which his case was handled before the selective service officials. Appellant testified at considerable length in the district court. All of the evidence on this phase of the case comes from his testimony and the exhibits which he identified. Appellant claims that the failure of the board to afford him a hearing, as requested in February of 1952, at the time his classification was first changed from I-D, is such error as vitiates the whole proceeding. The government answers that the failure to grant the requested 1952 hearing was not prejudicial. In his request for that hearing, appellant informed the board that he was a student in law school at Columbia and that he expected to get his degree in June of 1953. His request followed his I-A classification. It is apparent that the board regarded the letter as a request for a student deferment which the board promptly granted.
The evidence shows that appellant accepted both his II-S classifications, indeed his second one was as the result of his own instigation. He was aware of the purpose of Form 109, and certainly of the likelihood that the board in view of his first student deferment, would grant him a second to enable him to graduate. His letter of June 1, 1953 followed his I-A classification made May 28, 1953. He told the board he would not graduate until October, 1953, and that he could not take the bar examinations without his degree. He again referred to Form 109 and that the registrar of Columbia would forward it to the board as soon as his grades were computed. He inquired as to what procedure should be observed "* * * to preserve my student classification until I receive my law degree in October 1953 * * *." Without replying to appellant's letter, the board directed an induction notice to issue on June 17, 1953. Until the induction notice, it may be fairly said that appellant was fully satisfied with the board's action and its procedure. It is apparent from the record that on receipt of the induction notice appellant's tree of legal knowledge commenced to bear fruit and a litigious spirit replaced his five year contentment with his draft board. In his letter of July 6, 1953, from Wisconsin, appellant,
As to appellant's second point, that is, that he had passed the twenty-sixth anniversary of his birth at the time of his induction, but little need be said. 50 U.S.C.A.Appendix, § 456, which is Section 6 of the 1948 Act, provides:
Appellant construes the foregoing to mean that only service beyond twenty-six years may be compelled in those cases in which the registrant was classified in a student status at the date of his twenty-sixth birthday. Appellant's twenty-sixth birthday was August 28, 1953. Admittedly on that date he was classified I-A, but the board had granted him a sixty day postponement which was then in effect. The evidence shows that the reason for the sixty day postponement of induction was because of his plea to the board to be permitted to make up the deficiencies in his studies in the hope of graduating in the fall of 1953, as contained in his letter of June 1. As we understand it, appellant's contention is that for him to be liable for service beyond his twenty-sixth birthday, he should have, on that date, been placed in one of the student classifications, that is I-S or II-S. We see no merit in such a contention
Finally, we turn to appellant's contention that the board was illegally constituted and as a result had no jurisdiction over him. He contends that the jurisdictional area given the board by the State Director is not authorized by the statute or regulations and that the members of the board did not meet the residence requirements.
The Pennsylvania Selective Service Local Board Areas manual, issued by the State Director, effective for the period of time under review here, lists Northampton County Local Board No. 114 as having jurisdiction of the City of Bethlehem, Wards 1 to 17, inclusive, which are all the wards in the City. The manual lists, in addition, for Northampton County, Boards 112, 113 and 115, and for Lehigh County, Boards 89, 90 and 91.
The office of Local Board 114 is in a bank building in the City and in Northampton County. Wards 1 to 9 and 14 to 17, both inclusive, are in Northampton County and Wards 10, 11, 12 and 13 are in Lehigh County. Appellant contends that this board is thus a hybrid board, as its jurisdictional area crosses county lines, an arrangement which he says is illegal under the statute. He says, that as only one board member was a resident of Northampton County, the board is thus illegally composed. The appellant also contends, and we agree, that the board cannot be construed as an intercounty local board. With reference to the creation and establishment of local boards, 50 U.S.C.A.Appendix § 460(b) authorizes the President in Section (3):
We think that the board was legally established. The statute law is that one or more local boards in each county or political subdivision corresponding thereto of each state shall be created and established. Board 114 was given jurisdiction within a political subdivision, that is, the City of Bethlehem but in two counties. Nothing is said in the statute requiring that a board's jurisdictional area be restricted within county or political subdivision boundary lines. It is true that the language "in each county or political subdivision corresponding thereto of each State" requires a board in each county. What is meant by "or political subdivision corresponding thereto" is not entirely clear, but we think it is merely descriptive of the area in which Congress intended that at least one local board be established. Thus, as a minimum, a board should be in each county or a political subdivision of each state which generally, with regard to its jurisdictional area, should be of a size corresponding to a county or other appropriate political unit in those states and territories which do not have counties, such as Louisiana. This same phrase was used in the 1940 Act and is also used in the language in (b) (3) relating to intercounty local boards, in referring to areas of jurisdiction not exceeding five counties or political subdivisions corresponding
Regulation 1604.51 is entitled "Areas." The State Director of each State is required to divide his state into local board areas. Normally in such area there should be a population not exceeding 100,000. The directive requires at least one separate local board area in each county. In this instance, in Northampton County, there are four local board areas, and in Lehigh County, three local board areas. Also, each local board area shall be entirely within one appeal board area. It is noted at this point, however, that neither statute nor regulation 1604.51 requires that each local board area be confined within county lines. This section should, therefore, be construed as requiring that the President shall create or establish one or more local boards in each county or political subdivision of each State, which was what was done here.
Concluding as we do, that the jurisdictional area of Local Board 114 is within the authorization of the statute and regulations, the members of the board certainly met the residence requirements on and after June 19, 1953. Before that date it is doubtful that the residence requirements had been met. Under the 1948 Act, the board was composed of Chairman Thevenet, a resident of the City of Bethlehem in Northampton County, whose membership on the board is not challenged; board member Bilheimer, who was also at all times a resident of the City, but of a ward situate in Lehigh County; and board member Hanners, whose residence at the time he was appointed is not too clear from the record. However, his residence soon thereafter became Bucks County, two miles from the city line, where he continued to reside until replaced by Collie on June 19, 1953. Collie's residence when appointed and thereafter was in that part of the City situate in Lehigh County. Thus, from June 19, 1953, until and aftter appellant was inducted, his draft board members lived in the jurisdictional area given the board by the State Director. In this respect, the statute requires that a member's residence be in the county in which such local board has jurisdiction and the regulation, 1604.52 (c), says that the residences of members of a local board shall be in a county in which the board has jurisdiction. The statute and the regulations are thus not inconsistent. As we have held that this board's jurisdiction, including the portions of two counties, is lawful, it also follows that the members met the residence requirements as they resided in the City and in the parts of the two counties in which the board had jurisdiction.
Lastly, with reference to appellant's classifications and the composition of the board at the times they were given, it should be recalled that the May, 1953 I-A was given while Hanners was on the board, but in September, after protest, his file was forwarded to the Appeal Board which gave him a new I-A classification in October. His final I-A classification was given after a full hearing held May 17, 1954. At that hearing, as we have shown, the board was properly constituted. All members were present. The I-A then given was timely appealed. The Area Appeal Board denied his appeal. Such action by the Appeal Board amounted to a new classification. See United States v. Stiles, 3 Cir., 169 F.2d 455.
The judgment will be affirmed.
"2. If your request is pursuant to a directive of the State Director, the date of the State Director's notice or directive to you?
"3. If your request for my appearance before your Board is in response to any request from me to appear in person before your board to discuss my classification, which one of my several requests is responsible for the proposed meeting to be held on Tuesday January 12, 1954?
"4. If such meeting is not being held in response to any request from me, will all the members of Local Board No. 114 be present, and are all the members of Local Board No. 114 residents of Northampton County, Pa.?
"5. Has the Local Board opened my case at the Direction of the State Director to consider my classification anew at the meeting to be held on Tuesday January 12, 1954?
"6. If the State Director has not directed you to open my case and consider it anew, has the Local Board opened my case and will it consider anew my classification on Tuesday evening January 12, 1954?
"7. Has the State Director furnished you with a list of questions to ask me at the meeting proposed to be held on January 12, 1954?
"8. If so what are the questions?"