Page images

1646. Same-Local boards for States, Territorics, etc., to pass upon exemptions.--The President is hereby authorized, in his discretion, to create and establish throughout the several States and subdivisions thereof and in the Territories and the District of Columbia local boards, and where, in his discretion, practicable and desirable, there shall be created and established one such local board in each county or similar subdivision in each State, and one for approximately each thirty thousand of population in each city of thirty thousand population or over, according to the last census taken or estimates furnished by the Bureau of Census of the Department of Commerce. Id.

1647. Same-Appointment, composition, and qualification.-Such boards shall be appointed by the President, and shall consist of three or more members, none of whom shall be connected with the Military Establishment, to be chosen from among the local authorities of such subdivisions or from other citizens residing in the subdivision or area in which the respective boards will have jurisdiction under the rules and regulations prescribed by the President. Id.

1648. Same--Powers and duties of.--Such boards shall have power within their respective jurisdictions to hear and determine, subject to review as hereinafter provided, all questions of exemption under this Act, and all questions of or claims for including or discharging individuals or classes of individuals from the selective draft, which shall be made under rules and regulations prescribed by the President, except any and every question or claim for including or excluding or discharging persons or classes of persons from the selective draft under the provisions of this Act authorizing the President to exclude or discharge from the selective draft“ 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."1 Id.

1549. District boards, appointment, qualifications, and jurisdiction.—The President is hereby authorized to establish additional



* The decisions of local boards upon claims for exemptions, including those based upon alienage, are conclusive. Where a man has been erroneously certified for service through error of law or nonculpable ignorance of the registrant, his case may be reopened by the local board upon request of the adjutant general of the State, either on his own motion or on motion of the military authorities or of the local board. Compiled rulings of Provost Marshal General, No. 12, M. (War Dept. Bull. 72, Dec. 24, 1917.)

Local boards have no power under present presidential regulations to compel the attendance of witnesses, for the regulations do not contemplate the taking of oral testimony, but require the presentation of evidence by affidavit. (Id.)

One who claims to be an alien enemy drafted into the military service of the United States has the same rights and obligations as any other person in the service. He may, of course, claim exemption at the proper time because of his aliena ge, but a determination by his local board that he is not an alien is final, (Dig. Opin. J. A. G., March, 1918.)

boards, one in each Federal judicial district of the United States, consisting of such number of citizens, not connected with the Military Establishment, as the President may determine, who shall be appointed by the President. The President is hereby authorized, in his discretion, to establish more than one such board in any Federal judicial district of the United States, or to establish one such board having jurisdiction of an area extending into more than one Federal judicial district. Id.

1650. Powers and duties on appeals from local boards and in original cases. Such district boards shall review on appeal and affirm, modify, or reverse any decision of any local board having jurisdiction in the area in which any such district board has jurisdiction under the rules and regulations prescribed by the President. Such district boards shall have exclusive original jurisdiction within their respective areas to hear and determine all questions or claims for including or excluding or discharging persons or classes of persons from the selective draft, under the provisions of this Act, not included within the original jurisdiction of such local boards. Id.

1651. Same-Decisions final, exception.—The decisions of such district boards shall be final? except that, in accordance with such rules and regulations as the President may prescribe, he may affirm, modify or reverse any such decision. Id., 80.

* A district board has no authority to reopen the case of a man who has been inducted into the military service; but the local board may reopen his case upon permission or direction of the adjutant general of the State. If upon reopening the local board decides that the man should have been exempted, it will so notify the adjutant general, who will in turn notify the commanding officer at the mobilization camp. If a local board has, through error, sent a man to a mobilization camp pending his appeal, and he has been inducted into the milltary service, and thereafter he presents a certificate of exemption from the district board, he may be discharged by the division commander. Other than above stated, a commanding officer or division commander has no authority to discharge a man on the ground that he should have been exempted by the local board. (War Dept. Bull. 72, Dec. 24, 1917.)

? John Angelus, a citizen of Austria, claimed exemption before a local board on account of alienage and filed an affidavit in support thereof. The local board denied his claim, and the district board affirmed the action of the local board. Angelus brought a bill in equity to restrain the local board from certifying his naine to the military authorities for military service. The district court dismissed the bill for lack of jurisdiction, saying:

“I think Congress had no intention that the courts should interfere with this drafting proposition. It is a military measure in time of war, and it would be most subversive of military control and the proper disposition of this extremely difficult new problem if the courts should interfere in this situation. If Con. gress had intended that the courts should review the action of the local and district boards, it would have so provided, and unless an appellate court says to the contrary I am of the opinion that a district court of the United States should resolve any doubt in favor of the Government; any other view might tend seriously to embarrass the work of raising an army with its manifold difficulties and its tremendous detail. If those who believe they are entitled to exemption were able to apply to the courts, it would be a most disturbing situation and directly contrary to my understanding of the intent of Congress. Congress intended this to be an executive measure, to be carried out by the executive branch of the Government without interference of the courts."

Upon appeal the circuit court of appeals affirmed the order of the district court, holding that under the power to raise and support armies Congress has


1652. Vacancies on local and district boards, filling of.-Any vacancy in any such local board or district board shall be filled by the

the right to raise armies by conscription, and that it did not by the terms of the act unconstitutionally delegate its powers to the President. As to the proper jurisdiction of the local and district boards, the court said:

"But it is said that the act is unconstitutional in that it deprives the complainant of his liberty without due process of law, contrary to the fifth amendment of the Constitution, which declares that no person shall be deprived of life, liberty, or property without due process of law. The Supreme Court has, however, held that a judicial trial does not prevail in every case. (Murray's Lessee v. Hoboken Land & Improvement Co., 18 How., 272, 280, 1855.) And in the United States v. Ju Toy (198 U. S., 253, 203, 1905), the court, speaking through Mr. Justice Holmes respecting the Chinese exclusion act, under which the decision of the Department of Labor is final as to the exclusion, said: 'If for the purpose of argument we assume that the fifth amendment applies to him and that to deny entrance to a citizen is to deprive him of liberty, we nevertheless are of the opinion that with regard to him due process of law does not require a judicial trial.' That the decision of the question whether a person of Chinese descent was born in the United States and therefore entitled to enter the country, or whether he was born in China and under the exclusion act not entitled to eater, may be intrusted to an executive oflicer, whose decision is final, and that it is due process of law, is established law. We see no reason why the same doctrine is not equally applicable to the case in hand. And we therefore hold that the complainant is not deprived of clue process of law by being compelled to submit to the final decision of the local and district boards the question whether he is a subject of Austria-Hungary and whether he has not declared his intention to become a citizen of the United States.

[ocr errors][ocr errors][ocr errors][ocr errors]

“If the complainant is, as he alleges, a subject of Austria-Hungary and has never declared his intention to become a citizen of the United States, as he also alleges, it is perfectly clear that he is not subject to the draft. Whether his allegations in this respect are true must, however, be determined in the manner prescribed by the act.

“ It appears from the allegations of the complaint that the complainant filed an affidavit claiming exemption by reason of the fact that he was an alien and that the local board denied his application and that he appealed to district boaril, which affirmed the local board. It thus appears that the complainant was heard, and it is nowhere alleged that he was denied a full hearing or that the board rejected or refused to consider any evidence that he was entitled to present. In the absence of such a showing we have no doubt that the decision of the board is final and can not be interfered with by the courts.

We do not, however, agree with the statement of the district judge heretofore quoted that there can be not interference of the courts in the action of these boards. We think a decision of the boards is final only where the board has 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 le heard should be denied, there can be 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 be 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 a statute which declares that the judgment of the inferior tribunal shall be final.


“ There can be no doubt, therefore, that under the conscription act, where a board has denied a full and fair hearing to an individual claiming exemption from military service, he might, if restrained of his liberty, sue out a writ of habeas corpus and obtain his liberty.

“But whatever remedy the complainant may have or not have there can be no doubt that he is not entitled to the relief he asks in his bill of complaint.

" While disagreeing, therefore, with the opinion expressed by the district judge that the courts can not interfere with the action of the boards and


President, and any member of any such local board or district board may be removed and another appointed in his place by the President, whenever he considers that the interest of the nation demands it. ld.

1653. Regulations to be prescribed for organization, procedure, etc., of local and district boards of exemption.—The President shall make rules and regulations governing the organization and procedure of such local boards and district boards, and providing for and governing appeals from such local boards to such district boards, and reviews of the decisions of any local board by the district board hav

holding as we do that the civil courts can afford relief from orders made by such boards in any case where it is shown that their proceedings have been without or in excess of their jurisdiction or have been so manifestly unfair as to prevent a fair investigation, or that there lias been a manifest abuse of the discretion with which they are invested under the act, we nevertheless approve the conclusion he reached that the bill should be dismissed.” (Angelus v. Sullivan (U. S. C. C. A., 2nd Circ., Oct., 1917), 45 Wash. L. Rep. 691; War Dept. Bull. 67, Nov. 30, 1917.)

In the case of Franke v. Murray decide] February 14, 1918, by the United States Circuit Court of Appeals for the Eighth Circuit, the appellant, a citizen of the United States of craft age, had duly registered under the selective-draft act (40 Stat. 76), and had claimed exemption on the ground that he was a member of a religious sect whose creed forbade its members to participate in war. Such claim was, however, rejected by the local board, and he was duly notified to report for transportation to a military encampmeut of the United States. He refused to appear in response to the notice given him, whereupon, by the direction of the board he was arrested and turned over to the respondent, the commandant of Jefferson Barracks, as a deserter from the Army of the United States, to be tried by court-martial. The appellant sued out a writ of habeas corpus, and to a return stating the foregoing facts, he filed a reply, denying that he deserted the military service of the United States, as he was never in such service, never having taken the oath as a soldier. The hearing was had OR the pleadings, wherenpon the writ was discharged and the appellant remanded to the custody of the respondent. From this judgment the appellant appealed. The court, Hook and Smith, circuit judges, and Trieber, district juge, affirmed the judgment below. The opinion, delivered by Trieber, J., discussed the following points: (1) The constitutionality of the selective-draft act and the regulations thereunder was upleld by the Supreme Court in Arver v. United States, 245 U. S. 366. (2) Section 2 of the selective-draft act provides that a selected man is from the date of draft or acceptance subject to the laws and regulations governing the Regular Army, which of course includes the Articles of War. The second article of war (R. S. sec. 1342) enumerates as "persons subject to military law” (among others), “ all other persons lawfully called, drafted, or ordered into, or to duty, or for training in, the said service [military service of the United States) from the dates they are required by the ternis of the call, draft, or order to obey the same.” Hence it is not necessary that a person drafted into the service of the United States should take the oath of office as a soldier in order to become subject to military law. (3) Appellant's claim that if he cominitted any offense, he can only be prosecuted in a civil court, and that therefore a court-martial is without jurisdiction is likewise untenable. Section 6 of the selective-draft act, making it a misteineanor to violate any of the provisions of the act or the regulations made thereunder, expressly excepts those subject to military law. (4) Appellant's claim that he is a member of a religious sect whose creed forbids its members to participate in war can not be raised in a collateral proceeding like this. That was a question to be determined under the act of Congress, first by the local board and upon appeal by the district board, and the adjudication of such boards, where the appellant has had a fair opportunity to be heard and to present his evidence, is not subject to review by the courts. (Dig. Opin. J. A. G., February, 1918.)

• Under Section 111, Selective Service Regulations, there is no appeal to the district board on this question.

ing jurisdiction, and determining and prescribing the several areas in which the respective local boards and district boards shall have jurisdiction, and all other rules and regulations necessary to carry out the terms and provisions of this section, and shall provide for the issuance of certificates of exemption, or partial or limited exemptions, and for a system to exclude and discharge individuals from selective draft. Id.

1654. Persons subject to registration, duty to register; failure or refusal to register, punishment.-All male persons between the ages of twenty-one and thirty, both inclusive, shall be subject to registration in accordance with regulations to be prescribed by the President; and upon proclamation by the President or other public notice given by him or by his direction stating the time and place of such registration it shall be the duty of all persons of the designated ages, except officers and enlisted men of the Regular Army, the Navy, and the National Guard and Naval Militia while in the service of the United States, to present themselves for and submit to registration under the provisions of this Act; and every such person shall be deemed to have notice of the requirements of this Act upon the publication of said proclamation or other notice as aforesaid given by the President or by his direction; and any person who shall willfully fail or refuse to present himself for registration or to submit thereto as herein provided, shall be guilty of a misdemeanor and shall, upon conviction in the district court of the United States having jurisdiction thereof, be punished by imprisonment for not more than one year, and shall thereupon be duly registered. Sec. 5, id.

1655. Same-Precedence given in criminal prosecutions to cases of failure to register.-In the call of the docket precedence shall be given, in courts trying the same, to the trial of criminal proceedings under this Act. Id.

1656. Same-Age limit for registration; remain subject to draft unless exempted.-Persons shall be subject to registration as herein provided who shall have attained their twenty-first birthday and who shall not have attained their thirty-first birthday on or before the day set for the registration, and all persons so registered shall be and remain subject to draft into the forces hereby authorized, unless exempted or excused therefrom as in this Act provided. Id.

"A person who willfully refuses to present himself for registration or to submit thereto, as provided in the selective-Irast act, should be immediately registered and thereafter prosecuted for liis misdemeanor. It would defeat the purpose of the act were the involuntary registration postponed until after service of the sentence imposed for the commission of the inisdemeanor, (War Dept. Bull. 72, Dec. 24, 1917.)

* Where a registrant is certified by the district board for military service as being within the draft age, he can not be discharged from the military status thus imposed upon him either upon his own application or upon application of his parent or guardian upon the ground that he is not in fact of draft age. In the absence of fraud the decision of the board so certifying is final. (War Dept. Bull. 75, Dec. 31, 1917.)

« PreviousContinue »