Appeal from the District Court of the United States for the District of New Jersey; Guy L. Fake, Judge.
Before BIGGS, MARIS, JONES and GOODRICH, Circuit Judges, and GANEY, District Judge.
The petitioner was held in the custody of the United States Marshal for the district of New Jersey on a charge of violation of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq., because he failed to report for induction on June 1, 1942, as directed by his Local Draft Board. he filed his petition and applied for a writ of habeas corpus in the United States District Court for the District of New Jersey. The application was denied by the District Judge and the petitioner appealed to this Court.
The first point made by the United States attorney is the suggestion that the controversy has now become moot because, following the denial of the writ, the petitioner has been convicted of violation of the Selective Service law and is now in the federal penitentiary at Lewisburg, Pennsylvania, and no longer in the custody of the United States Marshal. We have no disagreement with the proposition of the case relied upon by the government to the effect that the Court will not decide a moot point. See Voloshin v. Ridenour, 5 Cir., 1924, 299 F. 134. But that undisputed proposition does not help us here.
The record from the court below closes with the appeal by petitioner from the denial of the writ. All we know of petitioner's subsequent trial and imprisonment is what his counsel and government counsel have told us. There is nothing in the record to indicate that he is still not within the custody of the United States Marshal.
Furthermore, we do not believe thalt passing about of the body of a prisoner from one custodian to another after a writ of habeas corpus has been applied for can defeat the jurisdiction of the Court to grant or refuse the writ on the merits of the application. it is a general rule of law that where one has become subject to the jurisdiction of a court, the jurisdiction continues in all proceedings arising out of the litigation such as appeals and writs of error. 1 Beale, The Conflict of Laws (1935) § 76.1. This general rule is particularized as to habeas corpus proceedings in Rule 45, par. 1 of the Rules of the Supreme Court, 28 U.S.C.A. following section 354, which provides: "Pending review of a decision refusing a writ of habeas corpus, the custody of the prisoner shall not be disturbed." see 8 F.C.A. (1937) p. 601. This has been the rule of the Court since 1886. 117 U.S. 708; In re McKane, C.C.S.D.N.Y. 1894, 61 F. 205. An identical provision appears in Rule 17, par. 1 of the Rules of th is Court (1942). It states: "If Writ Refused. Pending review of a decision refusing a writ of habeas corpus, the custody of the prisoner shall not be disturbed." The only way the Marshal could explain an inability to produce the petitioner in response to the writ, if issued, would be to set up a violation of the rule of this Court, which might serve as a confession, but hardly an avoidance. We think it clear that wheaever may be the rights the petitioner has through his application for a writ of habeas corpus, they are not lost by whatever may have been done to him between his application and the decision of his case on appeal.
That brings us, then, to the merits. Catanzaro alleges that he registered under the Selective Service law and that he claimed exemption as a regular and duly ordained minister of religion. He says that the Local Board and the Appeal Board of the State of New Jersey refused to consider the proof submitted by the prisoner of his ministerial status, that he was denied a fair hearing and that the Boards abused their powers and that he had exhausted all the remedies open to him under the Selective Service system. The question presented is, therefore, whether habeas corpus is open to a registrant to review the action of the persons and bodies charged with the administration of the Selective Service law following his refusal to obey an order for induction but prior to his prosecution for such disobedience.
A substantial and mounting body of authority now holds that a defendant prosecuted for failure to obey an order to report for induction may not tender as a defense that his Draft Board acted unfairly or arbitrarily in making the order. United States v. Grieme, 3 Cir., 1942, 128 F.2d 811; Fletcher v. United States, 5 Cir., 1942, 129 F.2d 262; United States v. Bowles, 3 Cir., 1942, 131 F.2d 818, affirmed on other grounds, 1943, 319 U.S. 33, 63 S. Ct. 912, 87 L. Ed. 1194; United States v. Kauten, 2 Cir., 1943, 133 F.2d 703.*fn1 Nor may the registrant, prior to induction, have his classification reviewed by certiorari. Drumheller v. Berks County Local Board No. 1, 3 Cir., 1942, 130 F.2d 610.
In the Kauten case, supra, 133 F.2d at page 706, the court called attention to § 10(a)(2) of the statute*fn2 as showing that "Congress intended so far as possible to prevent delay and event eh disruption of the administration of the Selective Training and Service Act by court interference with the various steps that the administrative boards are required to take." The court goes on to point out that induction is a contingent matter until after the medical examination of the inductee has been completed and that orders by Local and Appeal Boards are but steps leading up to a final acceptance or rejection by the Army. "Only when the Army makes its choice are all the administrative steps taken and is the administrative proceeding concluded."
It may be assumed that a judicial review of Draft Board action somewhere along the way between registration and the registrant's final acceptance by the armed forces would be more even and more objective than the verdicts of various juries asked to try a Draft Board's fairness as a defense in a criminal prosecution. To that extent the interposition of habeas corpus proceedings between registration and induction would be a less serious interference with the functioning of the draft machinery than permitting a defendant's attack on his Draft Board to come into a trial for disobeying its orders. Nevertheless it would interject court review before "the administrative proceeding [is] concluded."
The Congress did not, in the Selective Service statute talk about judicial review of Draft Board action: "The decisions of such local boards shall be final * * * " is the language used. If there is to be a court review, as distinguished from the appeals provided in the regulations authorized by the statute, it must be because judicial review is a constitutional right which courts must provide whether a statute authorizes it or not. This Court has said, though not decided, that a review through habeas corpus proceedings may be had where the registrant presents himself for induction in accordance with his Board's order and the terms of the law. See the Grieme, Drumheller and Bowles cases, supra. The Second Circuit, by a divided court, has recently so held. United States v. Downer, 1943, 135 F.2d 521. And the Sixth Circuit reviewed the propriety of an inductee's classification, though it upheld the judgment denying the writ. Benesch v. underwood, 1942, 132 F.2d 430. This likewise is assumed to be law by Mr. Justice Douglas in his concurring opinion in Hirabayashi v. united States, 1943, 63 S. Ct. 1375, 1389, 87 L. Ed. 1774, where he says: "There are other instances in the law where one must obey an order before he can attack as erroneous the classification in which he has been placed. Thus it is commonly held that one who is a conscientious objector has no privilege to defy the Selective Service Act and to refuse or fail to be inducted. He must submit to the law. But that line of authority holds that after induction he may obtain through habeas corpus a hearing on the legality of his classification by the draft board." (citing authorities).
But the petitioner here has not qualified himself for judicial review, whatever its scope may be, under the rule of the above authorities. To grant it to him at the point he has chosen would not, we believe, conform to the will of Congress. Nor ...