United States v. Kinkead

• Decision Date: 01 April 1918
• Docket Number: 2367.
• Citation: 250 F. 692
• Parties: UNITED STATES ex rel. PASCHER v. KINKEAD et al., Local Board.
• Court: U.S. Court of Appeals — Third Circuit

250 F. 692

UNITED STATES ex rel. PASCHER v. KINKEAD et al., Local Board.

No. 2367.

United States Court of Appeals, Third Circuit.

April 1, 1918

William S. Bennet, of New York City, for appellant.

Andrew J. Steelman, of Jersey City, N.J., and the Assistant U.S Atty., of Newark, N.J., for appellees.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

McPHERSON Circuit Judge.

The relator, Max Pascher (or Pecker), was selected for active military service, but claims to be exempt on the ground that he was born, and is now, an alien enemy. The District Court heard the case on petition and return, and the original papers referred to in these pleadings (with some others) have been laid before us. An outline of the relevant facts will make clear the points for decision:

On June 5, 1917, the relator registered, stating that he was 29 years old, had been born in Austria in June, 1888, and was a naturalized citizen. On August 14th he was approved as physically fit, and on the 16th he filed a claim and supporting affidavits asking for exemption as the son of dependent parents; but on the 22d the claim was denied by the local board, and two days later he was certified to the district board. Early in September he appealed from the denial of his claim to be discharged on the ground stated but the district board affirmed the decision. On October 11th he applied to the local board for a new hearing of his claim to be exempt, but he put it now on the ground that he was an alien enemy, asserting that he was born on May 15, 1887 instead of in June, 1888, and was therefore of age when his father was naturalized on June 29, 1908. The local board took up his case again, considered the new ground, reviewed the additional evidence submitted, and rejected the claim on or about November 23d. On December 18th the local board sent him a questionaries, and on December 27th he filed his answers, renewing his contention and asking to be classified in No. 5 E as an alien enemy. On February 1, 1918, the board denied the request, saying: 'Registration card also shows he is a citizen. Has also voted here'-- and classified him in No. 1 A. The fact of voting appeared from one of the relator's answers, in which he said he had voted in New York City 'thinking myself a citizen.' The return to the habeas corpus states that:

The board's refusal to classify him as an alien enemy was reached after due and careful consideration had been given to ' * * * all the papers and records in the possession of the said local board in any way concerning or appertaining to the said relator, and particularly careful consideration was given to the registration card theretofore filed by the said relator, a copy of which is hereto annexed and marked 'Exhibit A,' and to the claim for exemption and affidavits thereto and therewith, copy of which is Exhibit C annexed hereto, and to the answers made under oath by the said relator upon form No. 1001, which is hereto annexed and marked 'Exhibit G,' as well as a copy of what purports to be the proceedings in naturalization of one Mendel Joel Pecker, and what purported to be affidavits of Mendel J. Pecker, Taube...