The opinion of the court was delivered by: ABRUZZO
The writ of habeas corpus in this proceeding was obtained on behalf of Edward John Broker, by his wife, Antoinette Broker, for the purpose of inquiring into the propriety of the induction into the Army of the United States of her husband.
The selectee was inducted into the service on June 4, 1941, under the provisions of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq. This petition was filed on June 7, 1941. Pursuant to this writ, the selectee was produced in court on June 13, 1941. On this date, the return of Colonel Baird was filed which stated that the selectee, Edward John Broker, was lawfully selected for service as a soldier in the Army of the United States by the authority of the United States under the provisions of the Selective Training and Service Act of 1940.
The petitioner, Antoinette Broker, filed a traverse to the return on June 13, 1941 in which she denied that the selectee was lawfully selected for service and that he had been duly and regularly inducted therein. No new pertinent matter was set forth in the traverse which necessitates basing this decision on the Case Record.
The Case Record before the Local Board indicates that Broker, the selectee, returned his questionnaire on February 24, 1941, in which he made no claim of any dependency or of his intention to be married.
On April 10, 1941, he appeared for a physical examination and on the same day was classified in Class 1-A.
On April 14, 1941, he filed a request for a reconsideration of his case because he planned to be married on June 1, 1941. He claimed to have purchased furniture on January 6, 1940. On April 21, 1941, pursuant to a notice, he was questioned before the Local Board as to his intention to be married.When asked concerning the furniture bill he presented, it was stated:
"Q. Who is Theresa Mirro? A. She is my mother-in-law.
"Q. This shows that the first payment was made by her? A. My mother-in-law put the down payment on it. At that time, I wasn't sure of my job. Then, the Union came in."
The selectee also produced a Finlay-Strauss account book showing the purchase of a ring on May 20, 1939 on which the last payment was made in 1940. The following colloquy ensued:
"Q. It doesn't say that it was an engagement ring?I don't think you have much of a claim here. A. My sister and I live alone. She couldn't live alone in the apartment. She couldn't keep it up."
On April 22, 1941, the Local Board mailed the selectee a notice of his continuance in Class 1-A and on April 26, 1941, he was sent a notice of selection and ordered to report for induction on May 7, 1941.
On May 5, 1941, he appeared before the Local Board with his fiance and was informed that his time to appeal had expired, but he was granted a stay of his induction and his time to appeal was extended. On May 7, 1941, he signed a notice of appeal on the back of his ...