was then contacted for permission and approval. The latter orally recommended that defendant's induction be postponed until August, 1967, to enable the Board to review the completed SSS Form 150. Written permission and approval was subsequently obtained from the State Headquarters. Defendant was so notified by mail (SSS Form 264) sent on July 3, 1967.
63. On July 6, 1967, Local Board 85 received an undated letter from defendant explaining his reasons for his absence from the induction center on July 5, 1967.
64. At the Local Board's meeting on July 17, 1967, at which were present Mr. Leon Humphreville, Chairman; Mr. Ray W. Scharfenberg, and Mr. Richard E. Neville, members, it was determined that the information submitted did not warrant the reopening of defendant's classification and that defendant should be advised to report for induction in August, 1967.
65. On July 18, 1967, by two letters for the Local Board, Lois G. Heller, Acting Clerk, informed defendant of the Local Board's decision and advised defendant to report for induction on August 1, 1967, at 6:30 A.M., DST.
66. On July 27, 1967, Local Board 85 received a letter dated July 26, 1967, enclosing a copy of a letter which defendant had sent to the Director of the Pennsylvania State Selective Service System requesting intercession and review and enclosing a copy of a letter from the American Friends Committee advising defendant to write to the State Director.
67. On July 27, 1967, Lois G. Heller, Acting Clerk of the Local Board 85, contacted Pennsylvania State Headquarters concerning the defendant's correspondence of July 26, 1967.
68. On July 27, 1967, Lois G. Heller, Acting Clerk of Local Board 85, forwarded defendant's file to the State Headquarters for review.
69. On July 28, 1967, the Pennsylvania State Headquarters returned the file to the Local Board and notified it that no action on the part of the State Headquarters was warranted.
70. On August 1, 1967, the defendant willfully and knowingly refused to submit to induction at the New Cumberland Army Depot, Harrisburg, Pennsylvania.
71. On August 4, 1967, Local Board 85 forwarded defendant's file to the State Director of Selective Service.
72. On August 9, 1967, the State Director of Selective Service requested review of defendant's file by the National Headquarters of Selective Service to determine whether he should be prosecuted for failure to report for induction.
73. On August 11, 1967, Local Board 85 received a letter from defendant dated August 8, 1967, enclosing supplemental information to his SSS Form 150 previously filed and advising that letters in support will be forthcoming. No such letters were ever received.
74. On September 8, 1967, the National Headquarters advised the State Director to refer the file back to the Local Board for a specific determination pursuant to 32 C.F.R. § 1625.2 as to whether there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.
75. On September 20, 1967, Mr. Richard Neville, Chairman of Local Board 85, informed the Pennsylvania State Selective Service System that the Local Board decided at its meeting of September 18, 1967, that there was no change in defendant's status resulting from circumstances beyond his control. Prosecution of defendant followed.
Defendant presents a broadside of arguments in support of his motion for judgment of acquittal, viz.: (1) a quorum of Local Board 85 neither ordered nor authorized defendant for induction nor did a quorum deny his request for a 1-O classification; (2) the order of induction was not a duly constituted determination by a majority of the members of Local Board 85; (3) the order of induction was invalid since the Clerk who signed it was not properly authorized to sign such orders by resolution entered on the minutes; (4) the order of induction was invalid since prejudicial error occurred when the Board failed to advise defendant of his opportunity to appear before them to clarify his letter of April 3, 1967; (5) the order of induction was invalid since defendant was denied a substantial procedural right when the Board gave incorrect information to defendant in response to his letter of March 28, 1967; (6) the order of induction was invalid since defendant was denied a substantial procedural right when the Local Board failed to forward defendant's file to the Appeal Board within the time period set by the Selective Service Regulations; (7) the order of induction was invalid since defendant was denied due process of law when the Local Board failed to provide defendant with the opportunity to know of the letters of February 3, 1967, and February 13, 1967, and when as a result of one letter the Local Board forwarded defendant's file to the State Director of Selective Service; and (8) the order of induction was invalid since the Local Board failed to correctly apply the Selective Service Regulations with regard to reopening and considering anew defendant's classification.
As to defendant's first argument, I find that a quorum of Local Board 85 authorized and ordered defendant to report for induction and that a quorum of Local Board 85 properly denied defendant his request for a conscientious objector classification.
Defendant's argument is based on the failure of the Selective Service System to comply with its own procedural rules, in this case, 32 C.F.R. § 1604.52(c) which reads as follows:
"The members of local boards shall be citizens of the United States who shall be residents of a county in which their local board has jurisdiction and who shall also, if at all practicable, be residents of the area in which their local board has jurisdiction. No member of a local board shall be a member of the armed forces or any reserve component thereof. Members of local boards shall be at least 30 years of age."
Specifically, defendant relies on the fact that two of the three members of Local Board 85 at the time of defendant's processing resided outside of the area of Local Board 85's jurisdiction, the City of Lancaster. He argues that because of this the Local Board does not reflect either the socio-economic, occupational or the racial make-up of its jurisdictional area and thus an order issued by the Board is invalid.
There is no doubt about the existence of statistics which establish the fact that there is a disparity between the percentage of Negroes in State and local populations and those who serve as Local Board members in the Selective Service System. See Report, National Advisory Commission on the Selective Service Act (1967). And, as defendant attempts to show from the 1960 Population and Housing Characteristics by Census Tracts and Civil Divisions of Lancaster County, statistics can be cited to establish disparities in income and occupation. I do not understand defendant to suggest, however, that the regulations require mathematical accuracy in the make-up of a Local Board corresponding to race, occupation, and income. A reading of the regulations indicates otherwise and, in fact, does not even require these factors to be considered in appointing Board members. All that is required is that the members be residents of the county, which they are here, and "if at all practicable" reside within the area of the Local Board. The burden of proof of practicability is not always upon the Government as defendant suggests, but only arises when the defendant himself has presented some proof to the contrary. There is no evidence here establishing that the selection of the members of Local Board 85 was improper or impracticable in any way. In the absence of such proof, the strong presumption of regularity that attaches to the proceedings of Local Selective Service Boards controls the disposition of defendant's first argument. Chaney v. United States, 406 F.2d 809 (5th Cir.1969). Considering the fact that the defendant's Selective Service file discloses that a quorum was present whenever defendant was classified and whenever his conscientious objector form was considered in any manner and specifically when he was ordered to report for induction on August 1, 1967, I conclude that the Local Board's order to report for induction was proper.
The second contention of defendant concerns the failure of the Local Board to "select and order" for induction the number of men as required by 32 C.F.R. § 1631.7
and the failure to prepare an order of induction for each selectee, 32 C.F.R. § 1632.1.
Defendant argues that the only meetings of the Board with regard to him prior to the June 19, 1967, Order of Induction were those of March 20, 1967, at which he and 93 others were classified 1-A and the meeting of April 24, 1967, at which the sole issue was the extension of his appeal time. It appears that once a registrant is classified 1-A the remaining steps in the induction process are normally performed by the Clerk of the Local Board. When properly authorized, the Clerk has this power. 32 C.F.R. § 1604.59. In this case, Mrs. Lois Heller, the Acting Clerk, was properly authorized by resolution of the Local Board at its May 22, 1967, meeting. Basic agency principles apply to actions she performs within the scope of her authority. Thus, whenever a Clerk, or in this case the Acting Clerk, selects for induction registrants declared eligible for induction by the Local Board and then issues an order to report for induction, these actions are considered as those of the Local Board. United States v. Smith, 291 F. Supp. 63 (D.N.H.1968). I do not interpret the Regulations as requiring an actual meeting of the Board to determine the order of call once the Board has declared certain registrants eligible for induction. United States v. DeNarvaez, 407 F.2d 185 (2d Cir.1969); United States v. Hedges, 297 F. Supp. 946 (S.D.Ia.1969). The law may well be otherwise when an order to report for civilian work is required. Brede v. United States, 396 F.2d 155 (9th Cir. 1968), but see Opinion on modification, 400 F.2d 599 (9th Cir.1968), and when an order for a delinquent registrant to report is involved, United States v. Sloan, 302 F. Supp. 596 (N.D.Calif. March 26, 1969), but I am not persuaded that such a requirement should apply to the processing of a registrant such as defendant. I therefore find that the selection of defendant and his order to report for induction was a proper order of Local Board 85.
The third contention of defendant is likewise of little persuasion. I find that the defendant's order of induction was properly signed by the Acting Clerk of the Local Board, who was authorized to so perform by resolution entered on the minutes. The order of induction was dated June 19, 1968, and signed by Lois G. Heller. In the minutes of May 22, 1967, meeting of the Board, the following was noted as unanimously approved:
"Mrs. Lois Heller can sign all letters and forms with her name in acting as Local Board Clerk at time Clerk will be absence [sic] for eye operation."
The Regulation in question states:
"Official papers issued by a local board may be signed by any compensated employee of the local board if he is authorized to do so by resolution duly adopted by and entered in the minutes of the meetings of the local board: Provided, that the chairman or a member of the local board must sign a particular paper when specifically required to do so by the Director of Selective Service." 32 C.F.R. § 1604.59.