In re Kitzekow

GEIGER, District Judge (after stating the facts as above). The question is: Should a writ of certiorari issue to draft boards upon facts such as are presented in the present petition? Counsel for the petitioner rests his case wholly upon utterances found in opinions of judges dealing with applications for writs of, habeas corpus or for [867] writs of injunction, seeking to test or to restrain the action of district boards. Thus, in the Angelus Case (C. C. A. 2d Circuit) 246 Fed. 54, 158 C. C. A. 280, Rogers, Circuit Judge, said: "We do not, however, agree witli the stalement oí the District Judge, heretofore quoted, that there can he no interference of the courts in the -action of those hoards. We think a decision of the hoards is final only where the hoard lias proceeded in due form, and where the party involved is given a fair opportunity to be heard and to present his evidence. But, if an opportunity to he heard should be denied, there can ho no doubt as to the right of the aggrieved party to come into the courts for the protection of his rights. And we do not believe that the District Judge meant to say that a decision must bo regarded as final under such circumstances. The law courts have a general superintending- control by certiorari over all inferior tribunals acting-in a judicial or quasi judicial character; and jurisdiction is not entirely taken away by the words of the statute, which declares that the judgment of the inferior tribunal shall lie Anal.” Manifestly, cases dealing with individuals who aver that by reason of the express provisions of the Selective Service Act they are not within, but are left without, the entire scope of the act, as prescribing; and imposing liability to military service, are not pertinent. It may readily be conceded that, where the law imposes no obligation upon an. individual, the courts must be open to his resistance of any effort to impose its obligations upon him. But the present case deals with an individual whose status is admittedly within the reach of the law. Indeed, he professes his willingness to submit to its obligations, but seeks for the time being to assert a right resting solely upon an executive regulation fixing and establishing conditions or considerations for classifications. and hence order and priority of call. With this as the case, should the courts exercise jurisdiction by certiorari to correct the misapplication of the executive regulations, and to enforce, as the petitioner's right, the regulations as they may be applicable to the facts ¡¡resented by him in court ? Undoubtedly, Congress, by detailed enactment, or*the Executive, with or without detailed regulation, could have imposed the service obligation upon all individuals within the scope of the law, without any attempt to establish order or priority based upon considerations pertaining to the individual or to the service or the needs of the nation.. In other words, this power, existing as it did in Congress, might have been exercised and exerted by detailed provisions of the law, or might have been, as it was, delegated practically in its entirety to the Executive. It is my view that the character of the legislation is such that it never was intended, by conferring upon the Executive the full power and discretion to determine the matters which are now comprehended within the executive regulations, to reserve to the individual who is within the scope of the law, as a matter of legal right, subject to be enforced and vindicated in the courts, these very regulations which, in executive discretion, need not have been made at all, or, in like discretion,^ may be varied from day to day. The draft boards are purely executive agencies, and their error, committed against those who are within the draft law, is executive error in the enforcement of discretionary regulations; and I do not believe that it was or could be the congressional intent that these executive agencies, constituted, as ob [868] served, to carry out an unlimited discretion, were or are to Be considered in tire light of quasi judicial tribunals, discharging functions which pertain to everyday legal rights of a citizen. It would imperil the whole scheme, congressional and executive, in respect of the working of the "Selective Service Law; and for these reasons I shall decline to take jurisdiction of the application for the issuance of the writ. Footnotes [1] <gsxs>For other cases; see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes