his authority and an assumption of power on the part of the judiciary which does not exist."

The case of In re Boyle, 6 Idaho, 609, 57 Pac. 706, 45 L. R. A. 832, 96 Am. St. Rep. 286, cited in the opinion in the Moyer Case, is also in point. There the President of the United States at the request of the governor of the State sent a military force into the State. Application for habeas corpus having been made, the court held that it would not review the action of the governor, and said:

66* * * It is not the province of the court to hinder, delay, or place obstruction in the path of duty prescribed by law for the executive, but rather to render him all the aid and assistance in their power to bring about the consummation most devoutly prayed for." It may well be said of the power conferred upon the President to remove alien enemies, as was said of the power conferred upon him to call forth the militia to suppress insurrections:

"Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts. Martin v. Mott, 12 Wheat. 19, 31, 6 L. Ed. 537.”

The Court is of the opinion that such is the true construction of section 4067, Revised Statutes United States and that the President, or the officers through whom he acted, is the exclusive judge of whether Graber was such an alien enemy as for the safety of the United States should be restrained as provided by law.

"It is no answer, that such power may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the Constitution itself. In a free government the danger must be remote, since, in addition to the high qualities which the executive must be presumed to possess, of public virtue, the honest devotion to the public interests, the frequency of elections, and the watchfulness of the representatives of the nation, carry with them all the checks which can be useful to guard against usurpation or wanton tyranny." Martin v. Mott, supra.

The principles governing the determination of this case are analogous to the principles applied when habeas corpus is sought to review decisions of the Secretary of Labor and other immigration officials, under the Immigration Act, that certain alien immigrants at the time of entering the United States were likely to become a public charge. It has generally been held that the decisions of the Secretary, after the administrative hearing provided for by the act, are final and that the courts are without power to review or modify them on application for habeas corpus. Ex parte Pugliese (D. C.) 209 Fed. 720. And the same is true of the decisions of the boards created under the Conscription Act in passing upon claims for exemption. Indeed the recent case of Angelus v. Sullivan, 246 Fed. 54, 158 C. C. A. 280, is somewhat similar to this case. Angelus instituted a suit in the United States District Court for the Southern District of New York, for the purpose of securing a review of the action taken by the local and district boards created under the Conscription Act, approved May 18, 1917, 40 Stat. 76. He alleged that he was a subject

of Austro-Hungary, and an alien who had not declared his intention to become a citizen of the United States; and that as such he was not subject to conscription. He also averred that he had filed an affidavit claiming exemption on this ground; that the local board denied. his claim for exemption, and that upon appeal the district board affirmed the ruling of the local board and Angelus was ordered to report for military service. The court held that the decision of the board denying Angelus's claim of exemption, on the ground that he was a subject of Austria-Hungary, was final and could not be interfered with by the courts.

It is interesting to note in the present circumstances that the principles stated above are also followed in the English and Canadian courts. In the annotated note following the report of the case of Porter v. Freudenberg (English Court of Appeals) 1 K. B. 857, 1915, 5 B. R. C. 600, are cited the cases of Rex v. Vine Street Police Station (1915) 113 L. T., N. S., 971, and In re Gusetu, 1915, 29 Can. Crim. Cas. 427, holding that the rule that a court will not entertain an application for habeas corpus from a prisoner of war applies to a civilian subject of an enemy state, who has been interned as a measure of public safety.

In this case, the President, under the authority conferred upon him by law and in the manner prescribed by section 4067, Revised Statutes, has acted through the proper officials and their determination that Graber is an alien enemy who should be restrained or interned is final and conclusive and is not the subject of review by the

courts.

The application for the writ is denied..

8. FRANKE v. MURRAY.

(Circuit Court of Appeals of the United States, Eighth Circuit, 1918. 248 Fed. S65, 160 C. C. A. 623.)

The appellant, a citizen of the United States, between the age of 21 and 31, filed a petition for a writ of habeas corpus, alleging that he is unlawfully imprisoned and deprived of his liberty by the respondent, commandant of Jefferson Barracks, in the county of St. Louis, State of Missouri. He stated in his petition that he was duly enrolled and registered under the act of Congress of May 18, 1917, known as the "Selective Draft Act (40 Stat. 76)"; that subsequently he was informed by notice from the local board that he had been drafted for service in the military establishment of the United States under said act of Congress; that in response to said notice he attended upon said board, and claimed exemption under the terms of said act, on the ground that he was a member of a well-recognized religious sect and organization, whose principles and creed forbid its members participating in war in any form, and that his religious convictions were against war or participation therein, which claim was by the board rejected; that having been found physically qualified for service, he was duly notified to report for transportation to a military encampment of the United States, for the purpose of being

assigned to duty as a member of said military establishment of the United States; that he refused to appear in response to the notice given him, whereupon he was arrested and taken into custody by direction of the board, and turned over to the respondent as a deserter from the Army of the United States, to be tried by a courtmartial; that his detention is without due process of law and in violation of the Constitution.

Upon presentation of the petition, a writ of habeas corpus was granted by the district court. The respondent produced the appellant and made a return to the writ, denying that the petitioner was a member of any religious sect or organization, whose creed and principles forbade its members to participate in war in any form. The response also set up all the steps which were taken by the board and which were in strict conformity with the act of Congress, and the mobilization regulations of the President of the United States.

To this return the petitioner filed what may be termed a reply, denying that he deserted the military service of the United States, and that he was a deserter, as he never was in the military service of the United States, never having taken the oath as a soldier.

The hearing was had on the pleadings, no evidence being introduced by either party, whereupon the writ was discharged, and the appellant remanded to the custody of the respondent. From this judgment this appeal is being prosecuted.

Before Hook and SMITH, Circuit Judges, and TRIEBER, District Judge.

TRIEBER, District Judge, after stating the facts as above, delivered the opinion of the court.

The grounds upon which it is sought to reverse the judgment of the court below are:

1. That in order to be a deserter one must be in the actual military service, and that until he has been sworn in as a soldier he has not lost his status as a civilian.

2. If he has committed any offense, or violated any of the laws of the United States, he subjected himself to civil prosecution only, under the provisions of section 6 of the conscription act.

3. That Congress had no power to authorize the President to make any rules and regulations which should have the effect of law, that being a delegation of legislation which is not permissible under the Constitution.

As to the last claim it is sufficient to say, that it was adversely disposed of by the Supreme Court in Arver v. United States, 245 U. S. 366, 38 Sup. Ct. 159, L. R. A. 1918C, 361, Ann. Cas. 1918B, 856, opinion filed Jan. 7, 1918.

To sustain the first proposition, counsel rely on Houston v. Moore, 5 Wheat. 1, 5 L. Ed. 19, and In re Grimley, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636. Neither of these cases is applicable to the issues in this case or the acts of Congress under which appellant is held. In Houston v. Moore the question before the court was whether a statute of the State of Pennsylvania, which provided that a militiaman of that State was subject to trial by a court-martial of the State for failing to respond when called, was constitutional. The contention was that Congress alone had that power, and a statute of

a State is therefore unconstitutional. This was denied by the highest court of the State of Pennsylvania, and upon writ of error to the Supreme Court of the United States that judgment was affirmed, the court holding that in the absence of action by Congress the State possessed that power.

In re Grimley the only question involved was that of a voluntary enlistment, hence does not apply to a selective draft act, such as is the act of Congress of May 18, 1917. McCall's Case, Fed. Cas. No. 8669. Section 2 of the selective draft act provides: "All persons drafted into the service of the United States * * * shall from the date of said draft or acceptance be subject to the laws and regulations governing the Regular Army." This, of course, includes the Articles of War, as members of the Regular Army are subject to trial by court-martial. Article 2 of the Articles of War (section 1342, Rev. Stat., as amended by Act of Aug. 29, 1916, c. 418, 39 St. 650, U. S. Comp. St. 1916, § 2308a), provides:

"Persons subject to military law: The following persons are subject to these articles and shall be understood as included in the term 'any person subject to military law,' or 'persons subject to military law,' whenever used in these articles: Provided, That nothing contained in this act, except as specifically provided in article 2, subparagraph (c), shall be construed to apply to any person under the United States naval jurisdiction, unless otherwise specifically provided by law.

"(a) All officers and soldiers belonging to the Regular Army of the United States; all volunteers, from the dates of their muster or acceptance into the military service of the United States; and all other persons lawfully called, drafted or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft or order to obey the same."

There is, therefore, no room for doubt that under the selective draft act, and the Articles of War, the appellant having been drafted into the service of the United States, he became from the date of said draft, and certainly after acceptance and notice, subject to the laws and regulations governing the Regular Army, including the Articles of War. The laws governing voluntary enlistments can not be applied to involuntary enlistments by draft or conscription.

It is also claimed that the time when he became a soldier within the meaning of the law is regulated by article 109 of the Articles. of War, but that article only refers to voluntary enlistments. It reads: "At the time of his enlistment every soldier shall take the following oath or affirmation," and then follows the form of the oath. But as the petitioner did not enlist, but was drafted under the selective draft act, this article does not apply.

The claim that, if the petitioner committed any offense he can only be prosecuted in a civil court, and that therefore a court-martial is without jurisdiction, is equally untenable. The contention of counse is, that as section 6 of the selective draft act makes it a misdemeanor to violate any of the provisions of the act or the regulations made thereunder, the appellant can only be tried in a civil court. But that section expressly excepts those subject to military laws. It therefore applies only to those "not subject to military

laws," and as we hold that the petitioner is, under the selective draft act, subject to military law, the contention must fail.

The claim of appellant that he is a member of a well-recognized religious sect or organization, whose creed and principles forbid the members participating in war in any form, 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. That provisions of this nature constitute due process of law, under the constitutional guarantee, has been frequently and uniformly held. That it applies to the act in question has been decided by the United States Circuit Court of Appeals for the Second Circuit in Angelus v. Sullivan, 246 Fed. 54, 158 C. C. A. 280; and by District Courts in United States ex rel. v. Heyburn, 245 Fed. 360, In re Hutflis, 245 Fed. 798, and United States ex rel. v. Finley, 245 Fed. 871. It is only when the action of such a board was without jurisdiction, or if having jurisdiction, it failed to give the party complaining a fair opportunity to be heard and present his evidence, that the action of such a tribunal is subject to review by the courts. Chin Yow v. United States, 208 U. S. 8, 28 Sup. Ct. 201, 52 L. Ed. 369; Gegiow v. Uhl, 239 U. S. 3, 36 Sup. Ct. 2, 60 L. Ed. 114. But no such claim is made by appellant. On the contrary he admits in his petition that he had a fair opportunity to be heard and present his evidence.

It is further claimed that article 2 of the Articles of War was repealed by implication by section 6 of the selective draft act. But there is no merit in this claim. Repeals by implication are never favored, and only when the two acts are totally inconsistent and irreconcilable will the older act be held to be repealed by the later. No repugnancy has been pointed out by counsel and none can be found. Frost v. Wenie, 157 U. S. 46, 15 Sup. Ct. 532, 39 L. Ed. 614: United States v. Greathouse, 166 U. S. 601, 17 Sup. Ct. 701, 41 L. Ed. 1130; Washington v. Miller, 235 U. S. 422, 428, 35 Sup. Ct. 119, 59 L. Ed. 295; Chase v. United States, 238 Fed. 887, 152 C. C. A. 21. In Washington v. Miller, the court said: "Such repeals. are not favored, and usually occur only where there is such an irreconcilable conflict between an earlier and a later statute that effect reasonably can not be given to both."

The judgment of the district court was right and is affirmed.

9. UNITED STATES ex rel. BARTALINI v. MITCHELL. (District Court of the United States, Eastern District of New York, 1918. 248 Fed. 997.)

CHATFIELD, District Judge. A writ of habeas corpus has been issued under the authority of Angelus v. Sullivan, 246 Fed. 54, 158 C. C. A. 280, upon which Bartalini has been produced, return filed, and argument had upon the record. None of the facts have been traversed.

Bartalini is a Russian alien, who took out his first papers but allowed seven years to elapse, and thus lost the right to become at once a citizen of the United States. The record shows that he noti