248 F. 832 | E.D. Mich. | 1917
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.
“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.