2222. Liability to military service. That all able-bodied male citizens of the United States, and persons of foreign birth who shall have declared their intention to become citizens of the United States under and in pursuance of the laws thereof, between the ages of eighteen and forty-five years, are hereby declared to constitute the national forces, and, with such exceptions and under such conditions as may be prescribed by law, shall be liable to perform military duty in the service of the United States. Sec. 1, act of Apr. 22, 1898 (30 Stat. 361). After the beginning of the World War, by the act of May 18, 1917 (40 Stat. 76), the President was authorized to raise the Regular Army to its maximum strength, and to draft into the military service of the United States any and all members of the National Guard and the National Guard Reserves, and to raise by draft an additional force of 500,000 enlisted men. By the same act he was authorized in his discretion to raise an additional force of 500,000 men and recruit training units for each component of the Army. The act of July 9, 1918 (40 Stat. 894), authorized the President during each fiscal year to raise by draft the maximum number of men which might be trained and used during such year until the conclusion of the war. See also 2239, post. As to composition of Army of the United States, see 2113, ante. As to composition of the organized peace establishment, see 2114, ante. As to composition of the militia of the United States, see 2504, post. 146345°-21-VOL 2- -14 1133 Notes of Decisions. Powers of Congress.-The organization of the Army of the United States is specifically conferred by the Constitution upon Congress. Ex parte Rielly (N. Y. 1867), 2 Abb. Prac. (N. S.) 334. Powers of States.-The laws and regulations for the efficiency of the United States Army being vested by the Constitution in the General Government, the States can not, either through their legislative or judicial departments, regulate or circumscribe the powers of the United States in reference thereto. In re Fair (C. C. 1900), 100 Fed. 149. Persons subject to service.-Every citizen of sufficient age and capacity is under obligation to render military service to the country, when required, and is subject to draft for such service. Lanahan v. Birge (1862), 30 Conn. 438. There is nothing in this act to suggest an age limit in the Volunteer Army differing from that in the Regular Army, and it does not affect R. S. 1117 (superseded by 2169, ante). In re Burns (C. C. 1898), 87 Fed. 796. 2223. Selective draft preferred over voluntary enlistment for the World War.— That the enlisted men required to raise and maintain the organizations of the Regular Army and to complete and maintain the organization embodying the members of the National Guard drafted into the service of the United States, at the maximum legal strength as by this Act provided, shall be raised by voluntary enlistment, or if and whenever the President decides that they can not effectually be so raised or maintained, then by selective draft; and all other forces hereby authorized, except as provided in the seventh paragraph of section one, shall be raised and maintained by selective draft exclusively; but this provision shall not prevent the transfer to any force of training cadres from other forces. * * Sec. 2, act of May 18, 1917 (40 Stat. 77). Notes of Decisions. Validity. The grant to Congress of power to raise and support armies, considered in conjunction with the grants of power to declare war, to make rules for the government and regulation of the land and naval forces, and to make laws necessary and proper for executing granted powers (as provided by art. 1, sec. 8, of the Constitution), includes the power to compel military service, exercised by the selective service act. Selective Draft Law Cases (1918), 245 U. S. 366. The constitutionality of the selective service act may be upheld against the following objections: (1) That by some of its administrative features it delegates Federal power to State officials; (2) that it vests both legislative and judicial power in administrative officers; (3) that, by exempting ministers of religion and theological students under certain conditions and by relieving from strictly military service members of certain religious sects whose tenets deny the moral right to engage in war, it is repugnant to the First Amendment, as establishing or interfering with religion; and (4) that it creates involuntary servitude in violation of the Thirteenth Amendment. Id. Accord: Jones v. Perkins (D. C. 1917), 243 Fed. 997; aff. (1918), 245 U. S. 390: Franke r. Murray (C. C. A. 1918), 248 Fed. 865; U. S. v. Olson (D. C. 1917), 253 Fed. 233; Rhodes v. Tatum (Tex. Civ. App. 1918), 206 S. W. 114. This act does not violate the Fifth Amendment, as depriving one of his property without due process of law, as respects his office or employment, for, in a just sense, there is no such property right. U. S. v. Olson (D. C. 1917), 253 Fed. 233. This act is not ex post facto as respects aliens, for while Congress could not affect an alien's right to come into the country by change thereafter in the requirements for admission, nevertheless in all other respects his status after entry is the same as that of a citizen. U. S. v. Bell (D. C. 1918), 248 Fed. 992. See also notes to 2785, post. Draft for foreign service.-The army into which an enlisted man enters is not limited to services such as those for which it is asserted the militia only may be used. Selective Draft Law Cases (1918), 245 U. S. 366. The common law right to remain within the realm" can not prevail against an explicit provision of an act of Congress acting within its constitutional powers. Jones v. Perkins (D. C. 1917), 243 Fed. 997; aff. (1918), 245 U. S. 390. Status of persons of draft age. This act does not give persons within the draft ages any military status solely by virtue of their being within such ages, but they retain their ordinary status as civilians and citizens until it is changed by their selection for service. Ex parte McDonald (D. C. 1918), 253 Fed. 99; Ex parte Henry (D. C. 1918), 253 Fed. 208. 2224. First draft authorized during the World War. That in view of the existing emergency, which demands the raising of troops in addition to those now available, the President be, and he is hereby, authorized- * * Third. To raise by draft as herein provided, organize and equip an additional force of five hundred thousand enlisted men, or such part or parts thereof as he may at any time deem necessary, $ * * Sec. 1, act of May 18, 1917 (40 Stat. 76). Notes of Decisions. Construction. The provision in terms declaring the President authorized" to raise troops held not to delegate the power vested in Congress to raise an army, but merely to commit to him execution of the scheme, of Congress. Angelus v. Sullivan (C. C. A. 1917), 246 Fed. 54. 2225. Second draft authorized during the World War.-Fourth. The President is further authorized, in his discretion and at such time as he may determine, to raise and begin the training of an additional force of five hundred thousand men organized, officered, and equipped, as provided for the force first mentioned in the preceding paragraph of this section. Sec 1, act of May 18, 1917 (40 Stat. 77). 2226. Annual drafts authorized during the World War. That the authority conferred upon the President by the Act approved May eighteenth, nineteen hundred and seventeen, entitled "An Act to authorize the President to increase temporarily the Military Establishment of the United States," is hereby extended so as to authorize him during each fiscal year to raise by draft as provided in said Act and Acts amendatory thereof the maximum number of men which may be organized, equipped, trained, and used during such year for the prosecution of the present war until the same shall have been brought to a successful conclusion. Chap. XXI, act of July 9, 1918 (40 Stat. 894). 2227. Quotas drafted from localities in proportion to the population.- * Quotas for the several States, Territories, and the District of Columbia, 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 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. Sec. 2, act of May 18, 1917 (40 Stat. 78). * ** * * 2228. Each locality required to furnish its full quota of drafted men.Provided, That 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. Sec. 4, act of May 18, 1917 (40 Stat. 79). That if under any regulations heretofore or hereafter prescribed by the President persons registered and liable for military service under the terms of the Act of Congress approved May eighteenth, nineteen hundred and seventeen, entitled "An Act to authorize the President to increase temporarily the Military Establishment of the United States," are placed in classes for the purpose of determining their relative liability for military service, no provision of said Act shall prevent the President from calling for immediate military service under regulations heretofore or hereafter prescribed by the President all or part of the persons in any class or classes except those exempt from draft under the provisions of said Act, in proportion to the total number of persons placed in such class or classes in the various subdivisions of the States, Territories, and the District of Columbia designated by the President under the terms of said Act; or from calling into immediate military service persons classed as skilled experts in industry or agriculture, however classified or wherever residing. Joint Res. 29, May 16, 1918 (40 Stat. 554). That in the determination of quotas for the several States, Territories, and the District of Columbia, or subdivision thereof, to be raised for military service under the terms 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, the provisions of the joint resolution approved May sixteenth, nineteen hundred and eighteen, providing for the calling into military service of certain classes of persons registered and liable for military service under the said Act, shall apply to any or all forces heretofore or hereafter raised under the provisions of said Act for any State, Territory, District, or subdivision thereof, from and after the time when such State, Territory, District, or subdivision thereof has completed or completes its quota of forces called and furnished under the President's proclamation dated July twelfth, nineteen hundred and seventeen. Chap. XI, act of July 9, 1918 (40 Stat. 883-884). 2229. Period of service for drafted men.-That 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. 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. Sec. 4, act of June 15, 1917 (40 Stat. 217). For act providing that certain statutes whose operation is contingent upon the existence of a state of war shall be construed as if the World War had ended on Mar. 3, 1921, see 2835, post. 2230. Local draft boards. 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. 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. 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." Sec. 4, act of May 18, 1917 (40 Stat. 79). Notes of Decisions Validity. This section is not a law respecting an establishment of religion, or prohibiting the free exercise thereof, inhibited by the First Amendment. Selective Draft Law Cases (1918), 245 U. S. 366; U. S. v. Stephens (D. C. 1917), 245 Fed. 956; affirmed (1918), 247 U. S. 504. Status of boards.-The boards which this section authorizes the President to create are not courts, the creation of which, by the Constitution, is vested in Congress. U. S. v. Stephens (D. C. 1917), 245 Fed. 956; affirmed (1918), 247 U. S. 504. A member of a local draft board is an "officer of the United States," or a person acting on behalf of the United States in an official function, within the meaning of sec. 39, Criminal Code, making it an offense to give or offer a bribe to any such officer or person. U. S. v. Bordonaro (D. C. 1918), 253 Fed. 477. Special tribunals, such as local and district boards, created by the selective service act, are quasi judicial bodies of inferior and limited jurisdiction, and have authority to hear and determine only such matters as the law directs. Ex parte Beck (D. C. 1917), 245 Fed. 967. Members of local draft boards have no authority to waive any of the provisions of the selective service act or the regulations made thereunder. U. S. v. Finley (D. C. 1917), 245 Fed. 871. In view of the regulations thereunder, this section, declaring that local boards shall have charge to determine all questions including or discharging individuals, does not confer on such boards the power to determine whether an individual subject to the act falled to register. Ex parte Fuston (D. C. 1918), 253 Fed. 90. Proceedings on an alien's claim for exemption under the selective service act are analogous to proceedings before boards of immigration, and the applicants have an unquestionable right to a fair hearing. Ex parte Hutflis (D. C. 1917), 245 Fed. 798. As the local board is a public body, exercising quasi judicial functions in passing on the right of exemption, a court of equity has no jurisdiction to interfere with such a board's exercise of its functions. Bonifaci v. Thompson (D. C. 1917), 252 Fed. 878. A relator duly certified into the military service by local and district boards can not obtain his release because he has convinced the adjutant general of his State that the examination by the medical officers of the local board was insufficient. The determination of the exemption board is final save for appeal to the President. U. S. v. Commanding Officer (D. C. 1918), 248 Fed. 1005. The summons to a drafted person claiming exemption, to appear before the exemption board under sec. 101 of the Selective Service Regulations, is notice to him to present all the evidence he has in support of his claim. U. S. ex rel. Kotzen v. Local Exemption Board (D. C. 1918), 252 Fed. 245. Under the Selective Service Regulations, local boards have the widest possible latitude in informing themselves of the truth or falsity of statements made by registrants, and such boards are not in any way restricted to what would be competent legal evidence in a judicial proceeding. Brown v. Spelman (D. C. 1918), 254 Fed. 215. A drafted man ordered to report for service but remaining in hiding until after the draft boards were abolished may be tried by court-martial for desertion without a preliminary investigation before the draft board, as such investigation under a presidential order was a mere procedural step, the abolition of which does the drafted man no harm. U. S. ex. rel. Young v. Lehman (D. C. 1920), 265 Fed. 852. |