Ex Parte Stewart

(after stating the facts as above).

Except where an appeal is authorized, the Selective Service Act makes the decision of the Board on classification final. 50 U.S.C.A.Appendix § 310(a); see: United States ex rel. Broker v. Baird, D.C.N. Y.1941, 39 F.Supp. 392, 394 . In the trial of cases for violations of the Act, the Judges of this district have declined to submit to the jury the question of the correctness of the classification. But they have allowed inquiry to determine whether there was a hearing. And, in submitting the question of guilt or innocence to the jury, we have, invariably, informed them that they do not sit as a court of appeal. I have repeatedly given the following instruction :

Recently, the Third Circuit Court of Appeals has had the matter before it and has sustained the view embodied in the practice. United States v. Grieme, 3 Cir., 1942, 128 F.2d 811, 814 .

Notwithstanding this, however, the district courts may entertain writs of habeas corpus questioning the classification. These are not in the nature of a trial of the merits of the classification. The object of the writ, in such cases, is merely to determine whether there was a hearing and not whether a…