443 F2d 921 Andre v. R Resor

443 F.2d 921

Robert ANDRE, Appellee,
v.
Stanley R. RESOR, Secretary of the Army, et al., Appellants.

No. 26319.

United States Court of Appeals, Ninth Circuit.

June 11, 1971.

Richard Locke, Asst. U. S. Atty. (argued), James L. Browning, Jr., U.S. Atty., San Francisco, Cal., for appellants.

Michael Sorgen (argued), Mark Susnow, San Francisco, Cal., for appellee.

Before KOELSCH, ELY and WRIGHT, Circuit Judges.

PER CURIAM:

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1

The order of the United States District Court, directing that a writ of habeas corpus issue, is affirmed.1

2

Robert Andre, the petitioner-appellee, is presently serving in the armed forces of the United States pursuant to a Selective Service Board order to report for induction, based upon the delinquency regulations appearing in 32 CFR part 1642, which purport to vest a Board with power to accelerate induction of delinquent registrants.

3

But those regulations, to the extent they provided for such induction, lacked legislative authorization. Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). Hence the Board's order was void and petitioner is entitled to his discharge.

4

The mandate shall issue forthwith.

Notes:

1

A habeas action will lie. See Breen v. Selective Service Board, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970)