Evening journal., 1917-11-14

a does not prohibit the free exercise
thereof nor is 70 a law respecting an
Of religion in the sense
in which those words are used In the
smendment The trainers OF the Con-
stifltion intended TO prohibit the
,,nion of church and state. and 20 that
and. withheld from Congress the pow
q rio ieqislate for the official recogni-
tion or management OF a religious or
ganization as an institution connected
with or upheld by the government.
find nothing In Section NiolatiNe OF B.
the first amendment properly CON
strued. But were II otherwise, Wnlle J
the provision criticized would tall' t
the rest Of the act would not be az
fected: for those provisions are clearly
separable from the other provisions OF
the act. and 'it is a settled rule tnat
statutes that are constitutional In part
only will be upheld so far as they are
not in conflict with the Constitution,
provided the allowed and prohibited
parts are separable.
Regarding the contention OF The de-
fendant that "the boards intended 10
be created and established by the Presi-
dent possess judicial functions and are
inferior courts I'm the sense In which
those words are used In the section OF
the Constitution now considered, ana
as such could be ordained and estab-
lished. not by The President, but only
by Congress, and that therefore those
provisions constitute an unconstltution-
al attempt by Congress 90 delegate au-
thority TO the President. Judge Bradford
saws in part. "The boards undoubtedly
possess discretionary or quasi judicial
powers. but are not Inferior courts m
the constitutional sense. There
are many boards OF public officers ou-
mittedly constituting part or the
executive department OF the Govern
mcnt, clothed With discretionary anc
quasi judicial powers. The nature anC
purpose OF their functions rather thar
their discretionary character furnish
the test for determining whether the'
belong to the executive or TO the
judicial department 10 IS true tha
b. phraseology is employed in connection
81 with the local and district boards
which could appropriately be applie'
5 TO judicial as distinguished from eXccu
- tive functions, but this circumstance
cannot change the essential nature o
? the boards as part and parcel OF th
Z executive machinery Of the Govern
= ment'
"The fourth ground Of demurrer
that the act, in so far as II provide
!. hfor the assignment Of drafted persons
4 service other than military, is a vioii
= ton Of article XIII OF the amendment
a 10 the Constitution, declaring that IL
O voluntary scrvitude, except as punish
n ment for crime whereof the party sha
e have been duly convicted, shall M
d exist within the United states, or an
@ place subject TO their jurisdiction SCI
s. tlon OF the act provides, as abo'
.e stated. that certain officers and class
lr OF persons shall be exempted from o
l. selectlve draft, but that no person
exempted shall be exempted from Sc
VI vice in any capacity that the Preside
shall declare TO be noncOmbatant' 10
4 argued that this provision cOntemplai
"a involuntary servltudo In the sense OFT
,s Constitution. 10 Is not necessary
- dwell upon this contention. If 1t
n assumed that the provision IS invalid
TO would fall. but, being separable, wor
at not affect the force OF other portio
" Of the act. An assignment, actual
mt potential by the President Of q p
Oh son exempt from the draft TO serv
ch in a noncombatant capacity Is who
. unrelated to an unlawful omission
Ter submit 10 registration, for which
Use defendant has been.'
mo Judge Bradford also discussed
er, point raised 20 the effect that the q
Ds scription act vas uniaWfQl IN That
Vi power TO raise an army is vested
,et | Congress, and Congress by the act d
10y. 10 not exercise that power, but attem
.,'o ITO give the President power q. his
the cretiOn 90 raise an army and I'm a v
i'm great measure 20 determine Of whom
Inc shall consist The Judge says:
ec- Congress Is empowered by the g
as stltutlon TO raise armies but mere C
led gressional vOltion cannot accompl
the the end. 70 requires a declared legii
be tive intent followed by action TO
ILL fectuate it. Such action cannot be ta
by the members OF Congress. fer-it
OF only would be linhraclicable, but wo
ies involve an cncrOachment by the logi
the tive upon the executive branch Of
not government. 10 IS, therefore. -necess
- ] lllhb NAftullNt uAfNNlNo NlAhll iAIAN
Is or implicitly be directed or requ
oh, by Congress to give practical effec
are the legislative intent.
on Large discretionary powers in ca
ION, Ing into execution the general sch
ulu or plan defined by Congress prop
.olo were conferred upon the president
lei the chief executive and commando
anu The army with respect 10 the choic
means and other details Lcgisla
treatment OF such matters with iho
isss lbss quislte narticuIarlty and With refer
,,,.l % TO varying conditions and eXigenei'
~ lmpractlcable and committing iher
non the executive branch OF governmeI
,,ors r not to be treated as a delegation
g. legislative power There Is not
es- novel or repugnont 90 the Constih
NIT in thus disposing OF them"
arly -
VALUES BEAU At $4,000.