The claims of petitioners are resisted by the Government of the United States on the ground that the Conscription Law provides in express terms for their subjection to compulsory military service, and that, being later in date than the treaty with Spain, it controls, and that, in consequence, they should be remanded for trial. With this contention, upon a careful reading of the law, I am constrained to concur.

[1] Article 6 of the federal Constitution provides that:

This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land.

It has long been the rule of decision in the United States, however, that in so far as the judicial department of the Government is concerned a treaty occupies no position of superiority over an act of Congress. They are on a parity in so far as the provisions of the Constitution are concerned, and, like other expressions of the legislative will, when inconsistent or irreconcilable, the latest in point of time must control. Cherokee Tobacco Cases, 11 Wall. 616, 621, 20 L. Ed. 227; Head Money Cases, 112 U. S. 580, 598, 5 Sup. Ct. 247, 28 L. Ed. 798. In the event, then, of a conflict between an earlier treaty and a later act of Congress, the Courts are bound to accord to the act of Congress compelling authority, and remit one who claims rights or privileges under the treaty, which are denied to him by the act of Congress, to the political department of the Government. Tobacco Cases, supra. In other words, in such an exigency, if the country with whom the treaty has been ratified is dissatisfied with the action of the legislative department of our Government, it may present its complaint to the executive head thereof, and take such other measures as it may deem necessary for the protection of its interests. The courts thereof, however, which are bound to act in conformity with the constitutional mandates of Congress, can afford no redress. Whitney v. Robertson, 124 U. S. 194, 8 Sup. Ct. 456, 31 L. Ed. 386.

[2] The Conscription or Selective Draft Law, being the act "to authorize the President to increase temporarily the military establishment of the United States," approved May 18, 1917, "in view of the existing emergency, which demands the raising of troops in addition to those now available," and authorizing the organizing

and equipping of more than a million men under arms by selective draft, provided in Section 2 thereof that:

Such draft as herein provided shall be based upon liability to military service of all male citizens, or male persons not alien enemies, who have declared their intention to become citizens, between the ages of 21 and 30 years, both inclusive.

In Section 4 certain federal, state, and other officers, ministers of religion, theological students, and members of the military and naval service of the United States are declared exempt; and it is also stated that nothing in the act contained shall be construed to require or compel the service of any member of a well-recognized religious sect, whose religious convictions are against war, etc. Provision is also made for partial exemption of other named classes. Section 5 provided that:

All male persons between the ages of 21 and 30, both inclusive, shall be subject to registration in accordance with regulations to be prescribed by the President; and upon proclamation by the President or other public notice given by him or his direction stating the time and place of such registration it shall be the duty of all persons of the designated ages, except officers and enlisted men in the regular army, the navy, and the National Guard and Naval Militia, while in the service of the United States, to present themselves for and submit to registration under the provisions of this act: . . . Provided further, 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 the registration, and all persons so registered shall be and remain subject to draft into the forces hereby authorized, unless exempt or excused therefrom as in this act provided. (Italics supplied.)

Section 14, the concluding section of the act, is to the effect that: All laws and parts of laws in conflict with the provisions of this act are hereby suspended during the period of this emergency.

No provision is made anywhere in the act for positive exemptions from service other than those referred to; and no mention at all is made of any exemption because of treaties with any foreign nation. The language of the act requiring all male persons between the stated ages to register and providing that all persons so registered shall be and remain subject to draft "unless exempted or excused therefrom as in this act provided," makes it impossible for me to conclude that

it was intended by the act to exempt citizens of Spain or of other countries possessing similar treaty rights.

The particular claim is made by the petitioners that the language of Section 2, to the effect that the draft "shall be based upon liability to military service," is conclusive of an intent upon the part of Congress in the passage of this act to exclude from the operation of the act those who were not liable to military service because of some treaty provisions. It is perhaps difficult to appreciate just exactly what Congress had in mind in the use of the phrase "liability to military service"; there being no general law to which my attention has been called definitely establishing and fixing "liability to military service" under the laws of the United States. It has been the attitude of our State Department, from the time of Mr. Madison, when he was Secretary thereof, that resident aliens not naturalized are not liable to perform military service. Moore, International Law Digest, vol. 4, pages 51 to 65. Of course, the execution of a mere "declaration of intention" does not constitute naturalization. Moore's Digest, vol. 3, p. 336. The Congress, in the Draft Law of 1863 (Act March 3, 1863, c. 75, 12 Stat. 731), however enacted:

That all able-bodied male citizens of the United States, and persons of foreign birth who shall have declared their intention to become citizens under and pursuant to the laws thereof, between the ages of 20 and 45 years, except as hereinafter excepted, are hereby declared to constitute the national forces and shall be liable to perform military duty in the United States when ordered out by the President for that purpose.

By Act April 22, 1898 (30 Stat. 361, c. 187, § 1 [Comp. St. 1916, § 1714]) it was provided:

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 18 and 45 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.

By the terms of the act passed January 21, 1903, which was subsequent to the negotiation of the treaty with Spain, though prior to its ratification or promulgation, it was provided that the militia should consist of "every able-bodied male citizen," and every "ablebodied male of foreign birth who has declared his intention to become

a citizen," between the ages of 18 and 45. 32 Stat. 775, c. 196. It may have been that the phrase "liability to military service" was borrowed from the previous acts. It would seem as if the present Draft Act were in completest harmony with other military service statutes in that behalf. Be that as it may, however, the act does provide in express terms that the draft shall be based upon liability to military service of all male citizens and all male persons not alien enemies who have declared their intention to become citizens, and, as above recited, contains the further provision that of all persons registered none shall be exempt from service, unless exempt or excused "as in the act provided." The language seems indicative of such a "positive repugnancy" (Chew Heong v. United States, 112 U. S. 536, 549, 5 Sup. Ct. 255, 28 L. Ed. 770) to the terms of the treaty with Spain as to leave no room for the conclusion that they can be read together, and that Congress was intending that citizens of Spain, as well as of other countries, who had declared their intention of becoming citizens of the United States under the naturalization laws, should be subject to the demands of the emergency. The conclusion here announced is confirmed in a degree by the concluding section of the act, suspending all laws in conflict with it during the period of the emergency.

It follows that the court, conceiving it to be its duty to follow the intent of Congress, must needs remand the petitioners to such relief as may be accorded to them by the political department of the Government. The order to show cause is discharged, and the writs petitioned for are denied.

SWAYNE AND HOYT, INC. V. EVERETT

United States Circuit Court of Appeals, Ninth District

January 6, 1919.

Ross, Circuit Judge. This case comes here from the United States Court for China. It is a writ of error sued out by the defendant to an action there brought by the present defendant in error to recover damages for the refusal of the plaintiff in error, a common carrier, to receive, without lawful excuse, certain cargo offered it by the plaintiff to the action for shipment from Shanghai by the steamer

Yucatan, which had been advertised to be on the berth at Shanghai for freight to San Francisco.

The facts are practically undisputed, and are, briefly, these:

Swayne & Hoyt was a California corporation having its principal place of business at San Francisco, and was therefore an American citizen, and was a common carrier of freight between the Orient and that city among other places. It had as its agent at Shanghai a British corporation styled Jardine, Matheson & Company, Limited, and had under charter the said steamship for a voyage from San Francisco to China and Japan and return to San Francisco and other Pacific coast ports of the United States.

Prior to the arrival of the Yucatan at Shanghai the plaintiff in the case applied to the agent of the defendant thereto for space in the ship in which to ship certain goods, in response to which application, after one denial of it, the agent agreed to provide the requested space upon condition that the application be approved by the British Consul at Shanghai. That conditional acceptance was refused. The cargo offered for shipment by the plaintiff was being handled by him for German subjects, by reason of which fact he was blacklisted by the British Government, and all British subjects, including the agent of the defendant corporation, inhibited from dealing with the plaintiff respecting this particular shipment as well as all other such shipments. The defendant through its British agent having refused to accept the cargo offered by Everett, the action was brought, resulting in the judgment of the court below in his favor for $2,720.20, with costs.

But two questions of law are involved, first, whether the court below had jurisdiction of the subject-matter of the action, and, if so, then secondly, its merits.

By Section 1 of the Act of June 30, 1906, creating the court below (34 Stat. Lg. 814), that court is given "Exclusive jurisdiction in all cases and judicial proceedings whereof jurisdiction may now be exercised by United States consuls and ministers by law and by virtue of treaties between the United States and China, except in so far as the said jurisdiction is qualified by Section Two of this Act." The qualification specified in Section 2 of the Act has no bearing upon the present case, and, therefore, no further mention of it need be made.

At the time of the passage of the Act of June 30, 1906, there were in force the provisions of Sections 4083, 4084, and 4085 of the Revised