The opinion of the court was delivered by: BYERS
Hearing on return to writ of habeas corpus issued at the instance of the relator who was inducted into the Army on May 16, 1944, improperly as he alleges, as the result of the action of his Local Board in classifying him in I-A, instead of in IV-D as a theological student.
On his behalf, that action is denounced as arbitrary and capricious whereby it is urged that the writ should be sustained, and he should be discharged from the Army.
The motion papers factually establish that:
1. The relator reached the age of eighteen years on November 29, 1943.
2. He registered with his Local Board (190) on December 1, 1943.
3. He filed his Questionnaire on December 10, 1943, claiming therein to be a student preparing for the ministry in a theological or divinity school, i.e., Mesifta Talmudical Seminary at 141 South Third Street, Brooklyn, and asserting therefore that his classification should be IV-D.
4. On February 7, 1944, he was classified in I-A by the unanimous action of the Local Board.
5. A hearing was had before the Local Board at the registrant's request on February 21, 1944, at the conclusion of which the said classification was continued by unanimous vote.
6. Having been found to be physically qualified for Army service, as the result of a pre-induction physical examination on February 15, 1944, he duly appealed his classification to the Board of Appeal on March 6, 1944; on April 20, 1944, the action of the Local Board was unanimously affirmed.
7. All evidence submitted by or on behalf of the registrant and all communications addressed by him or on his behalf to the Local Board, to the Board of Appeal, and to Selective Service Headquarters, New York City, were duly received, and no such evidence or written communication was rejected.
8. Before the relator was classified in I-A on February 7, 1944, and under date of January 7, 1944, the Local Board transmitted to the Selective Service Headquarters, New York City, the file of the relator for advice, and under date of January 19th a hearing was conducted at such headquarters before an advisory panel on theological classifications, and that body recommended thereafter that the said classification be continued; the action of the Local Board on February 21, 1944, in continuing relator's classification in I-A was taken with knowledge of the said recommendation.
Under the foregoing state of facts, the Court is requested to sustain the writ upon the theory which has been stated; in other words, to overrule the action of the Board because it must be deemed to be erroneous by so wide a margin that no other conclusion is possible. Apparently it is thought that in extreme cases the Court is to substitute its judgment for that of the Local Board.
Authority for that contention is said to be found in several cases, the most recent being that of United States ex rel. Rubin v. Magruder, D.C., 55 F.Supp. 947, for a copy of the opinion in which this Court is indebted to relator's counsel. I have considered that opinion carefully, and think it comes down to this, that the learned judge who wrote it did not agree with the action, under ...