Summertime v. Local Board, Division No. 10 , 248 F. 832 ( 1917 )

TUTTLE, District Judge.

This is a petition filed by the petitioner, James Summertime, an alien who has not declared his intention to become a citizen of the United States, alleging that such alien has been unlawfully conscripted under the so-called Conscription Act, and is being illegally detained by the military authorities at Camp Custer, in this division and district, and praying for writs of habeas corpus and certiorari directed to the authorities concerned in his detention. The petition alleges that the said alien registered in accordance with the terms of said act; that he at no time received notice to appear for examination under the act, and was not informed that it was necessary for him to so appear; that the local board already mentioned claims to have mailed notices to him; that on October 12, 1917, he appeared before said local board and filed a claim for exemption, and affidavit in support of such claim; that-said board mailed such claim and affidavit to the district board, with a letter stating that he had been certified for service, and on notice from the Adjutant General had appeared for transportation to the military training camp at Camp Custer, where he had been sent on September 22, 1917, and that he had just then presented a claim for exemption on the ground that he was an alien who, through ignorance, did not present exemption claims at the proper time; that in response to such letter the district board notified the local board that there was nothing to indicate that the local board had made any mistake, and that in its opinion the case should not be reopened. The petition alleges that, about October 25, 1917, petitioner filed with said local board a petition asking for a reopening of his cáse on the grounds that he was an alien who had never declared his intention to become a citizen of the United States; that he was not called before said board for examination; and that under a treaty between the United States and Italy, of which he is a subject, dated February 26, 1871 (17 Slat. 848), he is exempted from compulsory military service in the United States; that this petition was forwarded to the district board, which board unlawfully and illegally refused to reopen his case.

[1] Without entering into a complete discussion of the question as to the extent of the jurisdiction of this court to review decisions of the local and district boards under the Conscription Act, or attempting a full statement of the nature of the general question involved, or the various phases of it which may require consideration under varying states of fact, into which I do not deem it necessary to go- in the present case, I think it sufficient at this time to point out that petitioner does not allege that he has been deprived of a fair hearing by the local or district board, or that the notice which he claims not to have received was not in fact mailed to him at the address given on his registration card, as required by section 25 of the rules and regulations governing the draft, or that his name was not posted in the offices of the local board in a place accessible to the public view, as required by such section, or that his name was not given to the press with a request for publication, as also required by such section. Nor does the petition allege that, a^ the time he first appeared before the local board- and filed his claim for exemption, the time for filing such claim had not expired. It does not appear that he even attempted to explain to the local board, at the time his case first came before it, or, on appeal, to- the district board, why he had not filed this claim within the time and in the manner prescribed by the aforesaid rules and regulations. In other words, it does not appear that he has complied with the requirements of the act and the regulations thereunder, or that he has ever presented to the local board and district board the reasons here assigned for such failure. Not having resorted to the procedure provided by this statute before praying for relief from this court, the relief asked must, under the circumstances disclosed in this petition, be denied. United States v. Sing Tuck, 194 U. S. 161, 24 Sup. Ct. 621, 48 L. Ed. 917.

[2] The mere fact that this alien was exbmpt from military service by a treaty entered into before the enactment of the present statute does not necessarily entitle him to exemption. It is well settled that a treaty, like any other law of the United States, may constitutionally be repealed or suspended by Congress, which, of course, must assume the responsibility for such action. Cherokee Tobacco Cases, 11 Wall. 616, 20 L. Ed. 227; Head Money Cases, 112 U. S. 580, 5 Sup. Ct. 247, 28 L. Ed. 798.

[3-5] Section 14 of the Conscription Act provides that:

“All laws and parts of laws in conflict with tbe provisions of this act are hereby suspended during the period of this emergency.”

Under section 5 of the act, petitioner was required to register, and such section also provided that:

“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.”

Furthermore, the Conscription Act did not deprive petitioner of any right of exemption to which he was previously entitled, but, on the contrary, expressly provided for such exemption, to be claimed in the manner prescribed by such act.

Without going fully into a statement of my reasons, I deem it sufficient on this point to state that I have no doubt that petitioner was not excluded from the operation of this act merely because he was a non-declarant alien, but that the local board had jurisdiction to pass on the question whether he was entitled to the exemption provided in the act. As already stated, it is not alleged that petitioner has been deprived of a fair hearing, or that the board has grossly abused its discretion or has failed to comply in any respect with the provisions of the statute or rules and regulations, or that petitioner has fully exhausted all the, remedies given by law.

In the abserice of any such allegations the petition is hereby denied, without prejudice to the right of petitioner to file an amended petition at any time within 10 days from this date. An order will be entered in accordance with the terms of this opinion.