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1639. Quotas from States, Territories, and District of Columbia. Quotas for the several States, Territories, and the District of Co

United States, was drafted for military service and ordered to report, and was arrested by the military authorities for not reporting. He received the usual notices; he never made any claim for exemption on ground of alienage in the manner prescribed by the regulations. He alleged that he had made certain informal claims and failed to make formal claim by reason of assurances given him by members of the local board that being an alien he need not trouble himself further. This was denied by members of the local board. After the time for filing exemption claims had expired he made formal claim. The court stated the question at issue to be this:

“Is a person who failed to claim exemption on the ground that lie was a nondeclarant alien, and who now asserts (without contradiction) that he is such an alien, properly in the custody of the military authorities? "

The question is answered in the affirmative, on the ground that the relator was not denied a fair hearing and the local and district boards acted in strict accordance with the procedure laid down by the regulations. The following excerpt from the opinion is of special interest :

The remaining question is whether the local board wholly lacked jurisdiction. It is contended because nondeclarant aliens are exempted from the draft that no obligation was placed upon relator affirmatively to present his claim for exemption, and this is but another way of stating that by virtue of the act itself relator was automatically exempted.

“ It must be conceded at the outset that Congress had the power to subject all persons to the draft whether citizens or aliens,

* The question, then, is whether from the structure of the act it was the intention of Congress that only those who claimed exemption should in proper cases be exempted or whether those entitled to exemption could disregard the procedure provided for by the act and the regulations and show aliunde, as here, that they fell within one of the statutory exempt classes.

“The whole plan of the act is undoubtedly to require that those who claim exemption shall affirmatively present their claim to the appropriate body so that that body can determine as a fact whether the person falls within the exempted classes. When, therefore, no such claim is presented and the proceedings of the local and the district boards are regular in every respect, the court can not go outside of the proceedings of the boards to determine iudependently something which the act required should be determined by thiese boards,” (United States ex rel. Koopowitz 1. Finley. United States District Court, Southern District of New York, Mayer, judge, Nov. 3, 1917; War Dept. Bull. 72, Dec, 24, 1917.)

The petitioner was a citizen of the Kingdom of Spain, who had filed his declaration of intention to become a citizen of the United States. He was: arrested off the shore of Mexico by a United States war vessel and detaine!! under process for evading the selective draft act. He made application for a writ of habeas corpus, claiming that when arrested he was on his way to Spain, and that he was not subject to the draft act on account of the provisions of the treaty with Spain by which its citizens are exempt from compulsory military service in the United States forces. Ileld, that the petitioner was subject to draft; that the provisions of the draft act, when in conflict with prior treity stipulations, prevail over them, and that the order to show cause why a writ, of habeas corpus should not issue be discharged and the writ denied.

(In re Victor Larrucea, United States District Court, Southern District of California, Southern Davision. Bledsoe, judge; idl.

Inondeclarant citizen of Austria registered under the selective draft act, stating upon his registration card that he was a citizen of Austria. He made no claim for exemption and appeared for medical examination, but when notitied to present himself for transportation to camp, he declined to do so and was arrested and brought to camp as a deserter. After his arrival in camp he was given a further opportunity to file astidavits in support of his claim but Titiled to do so. Field, that such man was in the military service of the United States. Section 18 of the Selective Service Regulations, provides (1) that a resirent monteclarant alien is entitled to claim exemption from the draft, (2) that such a claim must be made by the claimant or by some person in his behalf on a prepared form and filed with the local board before the seventh day after the mailing by the local board to him of the notice of his having been called for

lumbia, or subdivisions thereof, shall be determined in proportion to the population thereof, and credit shall be given to any State, Territory, District, or subdivision thereof, for the number of men who were in the military service of the United States as members of the

service, and (3) that the statement on the registration card of any such person that exemption is claimed shall not be construed or considered as the presentation of a claim for exemption. As pointed out in United States v. Finley (245 Fel. 871), alienage is a privilege which like all other claims for exemption must be asserted by the person claiming it in the manner prescribed in the regulations. It is immaterial that subsequent to the happening of the above-recited facts war has been declared upon Austria, since the status of the accused was fixed on the date of his induction into the military service. (Dig. Opin. J. A. G., Janlary, 1918.)

The Supreme Court of the United States has held the selective draft act of May 18, 1917, to be a proper exercise of the war power conferred upon Congress by Article 1, section 8, of the Constitution. In response to the contention of appellants that the power conferred upon Congress to raise armies was only coterminous with United States citizenship and could not be exerted so as to cause that citizenship to lose its dependent character and dominate State citizenship, the court pointed out that the power to raise armies, by the very terms of the Constitution, being delegated, is supreme. To the further contention that such power of Congress to raise armies was limited to calling for volunteers and could not include the power to exact enforced military duty by the citizen, the court replied that such a view challenged the existence of all power, “for a governmental power which has no sanction to it and which, therefore, can only be exercised provided the citizen consents to this exertion is in no substantial sense a power.” The power is neither repugnant to a free government nor in conflict with the guaranties of the Constitution as to individual liberty. Such power to impose military service on the citizenry was recognized and enforced in England before the Norman conquest. Throughout the course of English constitutional history the existence of this power was unquestioned, though it was long a matter of dispute as to whether it resided in the Crown or in Parliament. The power in question has lately been exercised by the English nilitary service act of January 27, 1916. In the American colonies before the separation from England, the right to enforce military service was unquestioned, as it was in the several States under the Articles of Confederation. It was obviously the intention of the framers of the Constitution to take this power from the States and delegate it to Congress; in fact, the want of power in Congress to raise armies was one of the recognized necessities for the adoption of our Constitution.

The constitutional power of Congress over the militia of the several States is much more limited, and the distinction between such power and the power of Congress to raise armies has been recognized throughout the history of the Nation. In the War of 1812, in the Mexican War, and in the earlier years of the Civil War, the State militia and volunteer forces were relied on by Congress in the creation of our armies; but by the act of March 3, 1863 (C. 75, 12 Stat. 731), every male citizen of the United States between the ages of 20 and 45 was made subject to be called by compulsory draft to service in the National Army at such time and in such numbers as the President in his discretion might find necessary, and under the power thus executed four separate drafts were made by the President and enforced during the years 1863 and 1864. The validity of such draft act was sustained in Kneedler v. Lane (45 Pa. St. 238); and a similar (raft law enacted by the Confederate Congress pursuant to a clause in the Confederate Constitution identical with that of our own Constitution was upheld by the several courts of the seceding States. The force of the foregoing argument is strengthened by the fact that the fourteenth amendment, as has many times been pointed out, has broadenedi the national scope of the Government under the Constitution by causing citizenship of the United States to be paramount and dominant instead of being subordinate and derivative. Nor are any of the specific provisions of the act of May 18, 1917, repugnant to the Constitution. The contention that the act is void as a delegation of Federal powers to State officials because of some of its administrative features is wholly without merit; nor is the act void as vesting administrative officers with legislative discretion or with judicial

National Guard on April first, nineteen hundred and seventeen, or who have since said date entered the military service of the United States from any such State, Territory, District, or subdivision, either as members of the Regular Army or the National Guard. Id., 78.

1640. All drafted forces and officers holding commissions therein subject to Articles of Ilar; duration of service.--All persons drafted into the service of the United States and all officers accepting commissions in the forces herein provided for shall, from the date of said draft or acceptance, be subject to the laws and regulations governing the Regular Army, except as to promotions, so far as such laws and regulations are applicable to persons whose permanent retention in the military service on the active or retired list is not contemplated by existing law, and those drafted shall be required to serve for the period of the existing emergency unless sooner discharged. Id.

(For the ensuing provision of this section see paragraph 1641, post.)

1640a. Termination of services of persons selected by draft. The service of all persons selected by draft and all enlistments under the provisions of the Act entitled "An Act to authorize the President to increase temporarily the Military Establishment of the United States," approved May eighteenth, nineteen hundred and seventeen, shall be for the period of the war, unless sooner terminated by discharge or otherwise. Sec. 4, Act of June 15, 1917 (40 Stat. 217).

1640b. Proclamation as to peace and transportation of forces to home station. Whenever said war shall cease by the conclusion of peace between the United States and its enemies in the present war, the President shall so declare by a public proclamation to that effect, and within four months after the date of said proclamation or as soon thereafter as it may be practicable to transport the forces then serving without the United States to their home station, the provisions of said Act, in so far as they authorize compulsory service by selective draft or otherwise, shall cease to be of force and effect. 10.

1641. Voluntary enlistment or draft of special and technical troops. - The President is authorized to raise and maintain by voluntary enlistment or draft, as herein provided, special and technical troops as he may deem necessary, and to embody them into organizations and to officer them as provided in the third paragraph

discretion. Finally, the court points out that the contention that the thirteenth amendment is violated by the exaction by the Government from the citizen of the performance of his supreme and noble duty to contribute to the defense of his country in time of war is refuted by its mere statement. (Arver v. United States, 245 U. S., 366; Dig. Opin. J. A. G., January, 1918.)



of section one and section nine of this Act. Sec. 2, Act of May 18, 1917 (40 Stat. 78).

(For qualifications and conditions for voluntary enlistment see paragraph 1661, post.)

1642. Organizations to be composed of and officered by men coming from same State or locality --Organizations of the forces herein provided for, except the Regular Army and the divisions authorized in the seventh paragraph of section one, shall, as far as the interests of the service permit, be composed of men who come, and of officers who are appointed from, the same State or locality. Id.

1643. Bounties and substitutes prohibited.-No bounty 1 shall be paid to induce any person to enlist in the military service of the United States; and no person liable to military service shall hereafter be permitted or allowed to furnish a substitute for such service; nor shall any substitute be received, enlisted, or enrolled in the military service of the United States; and no such person shall be permitted to escape such service or to be discharged therefrom prior to the erpiration of his term of service by the payment of money or any other valuable thing whatsoever as consideration for his release from military service or liability thereto. Sec. 3, id.

1644. Exemptions from selective draft.-The Vice President of the United States, the oflicers, legislative, executive, and judicial, of the United States and of the several States, Territories, and the District of Columbia, regular or duly ordained ministers of religion, students who at the time of the approval of this Act are preparing for the ministry in recognized theological or divinity schools, and all persons in the military” and naval service of the United States shall be exempt from the selective draft herein prescribed; and nothing in this Act contained shall be construed to require or compel any person to serve in any of the forces herein provided for who is found


? The question was presented whether the provision in the National Army act, approved May 18, 1917, that "no bounty shall be paid to induce any person to enlist in the military service of the United States," repealed the provision in the act of May 11, 1908 (35 Stat. 110), authorizing the payment of a sum equal to three months' pay to any honorably discharged soldier upon his reenlistment within three months after his discharge:

Held, That the three months' gratuity authorized by the act of May 11, 1908, upon the reenlistment of an honorably discharged soldier is not a bounty within the prohibition of the act of May 18, 1917, and that the former act was not repealed by the latter. (War Dept. Bull. 67, Nov. 30, 1917.)

An officer in the National Guard whose organization, although recognized by the Militia Bureau, has been neither drafted into the military service of the United States, nor specially designated to be so drafted by orders from the War Department, is personally subject to draft under the selective draft act of May 19, 1917 (Selective Service Regulations, note 3, p. 10, as amended Dec. 10, 1917), and if drafted, he would be drafted as any other citizen of the United States-that is, as a private-and not as an officer in the National Guard. This would not constitute an illegal deprivation of his commission in the National Guard. (Dig. Opin. J. A. G., January, 1918.)

to be a member of any well-recognized religious sect 1 or organization at present organized and existing and whose existing creed or principles forbid its members to participate in war in any form and whose religious convictions are against war or participation therein in accordance with the creed or principles of said religious organizations, but no person so exempted shall be exempted from service in any capacity that the President shall declare to be noncombatant; and the President is hereby authorized to exclude or discharge from said selective draft and from the draft under the second paragraph of section one hereof, or to draft for partial military service only from those liable to draft as in this Act provided, persons of the following classes: County and municipal officials; customhouse clerks; persons employed by the United States in the transmission of the mail; artificers and workmen employed in the armories, arsenals, and navy yards of the United States, and such other persons employed in the service of the United States as the President may designate; pilots; mariners actually employed in the sea service of any citizen or merchant within the United States; persons engaged in industries, including agriculture, found to be necessary to the maintenance of the Military Establishment or the effective operation of the military forces or the maintenance of national interest during the emergency; those in a status with respect to persons dependent upon them for support which renders their exclusion or discharge advisable; and those found to be physically or morally deficient. No exemption or exclusion shall continue when a cause therefor no longer exists.? Sec. 4, id.

1645. Same--Each State, etc., to furnish quota notwithstanding such exemptions.-Notwithstanding the exemptions enumerated herein, each State, Territory, and the District of Columbia shall be required to supply its quota in the proportion that its population bears to the total population of the United States. Id.,79.



Members of well-recognized religious sects whose creed or principles forbid the participation in war :ire exempted only from combatant service, not from noncombatant military service. Service with the American Red Cross or manual labor performed upon farms or gardens operated for the benefit of the Army on land leased or occupied for military purposes is not military service, and can not be designated by the President as noncombatant military service, assignment to which will relieve conscientious objectors from military service. (War Dept. Bull. 67, Nov. 30, 1917.)

The confidential instructions issued by the War Department regarding conscientious objectors related to their treatment while they remained in camp subject to military control; it was not intended thereby to give such men immunity from punishment for an offense such as desertion. (Dig. Opin. J. A. G., February, 1918.)

Held, That a person who enlisted in the Regular Army for seven years in the year 1914 and purchased his release and was honorably discharged in April, 1916, was not exempt from the draft; that the act of May 19, 1917, specifies the exempted classes in clear and unambiguous language, and ought not be enlarged by Judicial construction. The petition for the writ of habeas corpus was accordingly dismissed. (Re Jack Cohen, decided Oct. 17, 1917, by U. S. District Court for District of Mass. Id.)

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