Citations
- 57 F. Supp. 938
Full opinion text
TRIMBLE, District Judge.
Rabbi Ephraim M. Steinberg, of New York City, filed a petition for a writ of habeas corpus for his son, Isidore Allan Stein-berg, hereinafter called the relator, on the 30th day of September, and named as respondent, Col. Grover C. Graham, Commandant of Camp Joseph T. Robinson, Arkansas. It later appearing that Col. Graham did not have custody, control or command of the relator, on October 11, 1944, an amendment was filed by permission of the Court and the Commanding Officer of the> 1290th U. S. Engineer Combat Battalion, Camp Joseph T. Robinson, was also named as respondent. The Court having granted the writ as to both respondents, both have been duly served, and have filed responses in this cause, and the issues are now fully before the Court. On November 3rd, 1944, a hearing was had in open court.
The relator contends that he is entitled to be released from custody, command and control of the military authorities for the reason that Local Board No. 95, Bronx, New York, in classifying him as I-A instead of IV-D, acted in a capricious, arbitrary and illegal manner. He contends that he is entitled to classification in IV-D, in that he was a bona fide student of the ministry, in continuous attendance at a duly recognized divinity or theological school, which school was preparing its students for the rabbinate, and which had been and is recognized as such by all orthodox rabbinical authorities, conceded and acknowledged as such by the National and Local Headquarters of the United States Selective Service System, and which is on the list of the approved theological schools published by the National Headquarters of the Selective Service System, and which has been functioning as such school for more than one year prior to the enactment of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix § 301 et seq., and the rules and regulations promulgated thereunder, and which school is within the purview of Section 622.44 of the Rules and Regulations under that Act.
It is further alleged that the relator was originally classified by the local board in class IV-D, which was later changed to I-A, which change was due to an arbitrary, capricious and illegal act on the part of the local board, and that as a direct result of such change of classification, the relator was inducted into the United States Army on March 11, 1944, and is now illegally detained by virtue thereof.
Nowhere is it alleged or contended by the relator that he was denied the opportunity to produce before the local board, the appeal board, or the theological panel, any evidence which he had to support his claim for classification in IV-D, to urge upon their consideration any reason he had, or that any of these boards or panel did not consider such evidence. The gist of his claim is that the overwhelming evidence, in fact the uncontradicted evidence, shows that he is entitled to such classification, and the failure and refusal of the local board to so classify him is, therefore, arbitrary, capricious and illegal.
The relator in effect is asking the court to substitute its judgment for that of the local board. He pleads:
“11. It is indeed inconceivable that any body of men in the face of all of the foregoing could ascribe anything else but good faith as to my studies for the ministry and good faith, honesty and sincerity as to my intentions to become a- duly ordained rabbi. Any other determination would certainly be without basis and wholly inconsistent and contrary to the proofs and the record.
“12. In the face of such an overwhelming record of proof of my good faith as a life-time student of the ministry, and the persistent refusal of the local board to put me back in my original classification of IVD and their consistent persistence to continue me in I-A must be deemed to be nothing short of arbitrary and capricious on the part of this local board.”
The relator was born on May 5, 1923, in the City of Passaic, N. J., and in 1929 with his family moved to the City of New York. At the time of his registration he was residing within the jurisdiction of Local Board No. 95, Bronx, New York, with which board he registered on or about November 19, 1942, as required by the National Selective Training and Service Act of 1940. On November 25, 1942, the registrant executed his Selective Service questionnaire. He made claim that he had completed eight years of elementary school, four years of high school, and that in addition thereto he had studied physical education at New York University for