Opinion
John W. Preston, U.S. Atty., and Casper A. Ornbaun, Asst. U.S. Atty., both of San Francisco, Cal.
George C. W. Egan, of San Francisco, Cal., for petitioner.
DOOLING, District Judge.
Petitioner is a subject of Great Britain within the draft age, who has not declared his intention to become a citizen of the United States, and duly registered under the Selective Service Act (Act May 18, 1917, c. 15, 40 Stat. 76). In his questionnaire he waived all claim to exemption and was placed by the local board in class 1A. Having been called to service, he now seeks by means of a writ of habeas corpus to be discharged therefrom because he is such alien. The Selective Service Act, however, provides:
'That 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 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 the act provided.'
It may be noted that the word used here is not 'exempt,' but 'exempted'; so that it is apparent that something more is required to become exempted than the mere fact of being entitled to exemption. The power to exempt or excuse is, by the act, lodged in the local and district boards, and their method of procedure is, by the terms of the act itself, to be according to rules and regulations made by the President. Under the rules and regulations so made (rule XXVII):
'If neither the registrant nor any person in respect of him has claimed deferred classification, he shall forthwith be classified in class 1, unless he is an alien enemy.'
The regulations further provide (note to above rule):
'No alien (not an alien enemy) who has not declared his intention to become a citizen of the United States shall be placed in any class other than class V unless such nondeclarant has stated, in answer to question No. 2 of series No. VII of his questionnaire, that he does not claim exemption on the ground of his alienage.'
Construing the act and these regulations, the courts have uniformly held that all persons, save enemy aliens, within the draft age, are subject to the draft, unless exempted or excused therefrom by the local
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or district board, and that the action of these boards, where there has been a fair hearing, is final, and not subject to review by the courts, either on habeas corpus or certiorari. The petitioner having waived his claim for exemption before the only tribunal empowered to act upon it, and such tribunal having accorded him a fair hearing, and classified him strictly in accordance with the terms of the act and the regulations made by the President by virtue of the authority conferred upon him, this court is not only without power, but also without inclination to interfere.
The demurrer to the petition will therefore be sustained, and the petition denied.