tained and the order of the district superintendent was set aside in so far as it related to dissolution and annexation of District No. 6, town of Roseboom. 12 St. Dept. Rept. 425.

Prior to the determination of the appeal and on or about the 7th day of September, 1916, the said district superintendent issued an order transferring certain property, to wit, the farms of Martin Steenburgh and Alvin Winnie, from said District No. 6, town of Roseboom, which had then become a part of the consolidated district known as District No. 5, town of Cherry Valley, to District No. 3, town of Roseboom, thereby changing the boundary lines of said district. As a result of such order the boundaries of District No. 3, town of Roseboom, were fixed as including such property.

The petitioners herein are residents and taxpayers of District No. 6, town of Roseboom, and they ask that the farms above mentioned be again included within the territorial limits of District No. 6, thereby leaving such district as it existed prior to the order of the district superintendent transferring such farms to District No. 3, town of Roseboom. The owners of such farms were served with copies of the petition and they have not answered the allegations contained therein, nor have they appeared to object to the desired alteration of the boundaries of the district.

It is provided in section 123 of the Education Law that the boundaries of a school district may be altered by a district superintendent with the written consent of the trustees of all the districts to be affected thereby. If the trustees do not consent to the alteration, it is provided in sections 124 and 125 of the Education Law that the district superintendent may file with the town clerk an order making the alteration, and thereupon the trustees of any district affected thereby may ask for a hearing of objections to the order before the district superintendent and supervisor and town clerk of the town.

This proceeding must be deemed to be one for the alteration of the boundaries of a district within the sections above referred to, and such alteration can only be made upon complying with

the provisions thereof. It will be necessary for the petitioners, therefore, to apply to the district superintendent for an order altering the boundaries of Districts Nos. 3 and 6, so that the boundaries of District No. 6 may be reëstablished as they existed prior to the transfer of the farms in question. If the trustee of either one or the other of the districts does not consent, it will be necessary to follow the procedure prescribed in sections 124 and 125 of the Education Law. If the district superintendent or the officers before whom a hearing is had as to such alteration refuse to transfer the property, an appeal may be taken from such refusal to the Commissioner of Education and a determination will then be made as to the propriety of the alteration. The appeal is dismissed.

ATTORNEY-GENERAL

In the Matter of Construing the CLASSIFICATIONS OF THE SELECTIVE SERVICE as to Persons Morally Unfit to be Soldiers

(Opinion dated January 31, 1918)

A person convicted of felony cannot waive deferred classification but must be placed in class V.

The provisions of the selective service regulations with respect to persons found guilty of crime but not sentenced to State prison must be construed in such manner as to protect the personnel of the army from contamination, and to keep out of the army felons and traitors. A registrant who has been convicted of felony, treason or an infamous crime cannot waive his disability. A privilege may be waived but not a disability. Such a registrant must be placed in class V. A person will be regarded as having been "convicted" of felony if adjudicated guilty of a crime punishable by a term in State prison, whether sentenced to State prison, penitentiary, reformatory, or whether merely fined or given a "suspended sentence."

Brig. Gen. Charles H. Sherill, the Adjutant General, submitted an inquiry, together with a request for an opinion thereon, as follows:

"What is the meaning of subdivision (h) of rule XII of the Selective Service Regulations, section 79, with respect to persons found guilty of crime but not sentenced to State prison?"

LEWIS, Attorney-General. The regulation referred to provides exemption of "A person shown to have been convicted of any crime which, under the law of the jurisdiction of its commission, is treason, felony or an infamous crime."

The purpose of this provision is to protect the personnel of the army from contamination, and to keep out of the army felons and traitors. The suggestion that a registrant who has been convicted of felony, treason, or an infamous crime may waive deferred classification and be classified in class I is obviously absurd. A man may waive a privilege but not a disability. Deferred classifi

cation in general is a privilege, but classification under subdivisions (g) and (h) of rule XII is a matter depending upon a state of facts and not at all subject to the will of the registrant. A stranger who might seek to gain admittance to the club-house of an exclusive club, and who was stopped by the doorman as not being a member, would be considered a humorist if he offered to waive his disability. Subdivision (h) of rule XII was made a part of the Selective Service Regulations for the same reason that clubs have rules restricting the admission of strangers to their club-houses.

The question is raised as to what constitutes conviction of a crime which, under the law of New York, is treason, felony or an infamous crime. Treason is defined in section 2380 of the Penal Law and consists of levying war against the people of the State, combining to usurp the government of the State, or adhering to the enemies of the State in certain defined ways. A felony, according to section 2 of the Penal Law, is a crime which is or may be punishable by death or imprisonment in a State prison. The term "infamous crime" is not defined in our statute but the courts have defined it as "an offense implying such a dereliction of moral principle as carries with it a conviction of a total disregard of an oath." People v. Parr, 42 Hun, 313.

The fact that one convicted of a crime punishable by imprisonment in a State prison is actually punished by imprisonment in a penitentiary or in a State reformatory does not render him any the less a felon disqualified under subdivision (h) of rule XII.

The question has been raised as to the status of one who has been found guilty of a felony and upon whom sentence has been suspended. In People v. Fabian, 192 N. Y. 443, the case was considered of a man who had been found guilty of a felony and upon whom sentence had been suspended who registered and voted at an election. The Election Law provided that: "No person who has been convicted of a felony shall have the right to register for or vote at any election unless he shall have been pardoned and restored to the rights of citizenship."

The Court of Appeals held that for the purpose of construing

the Election Law a man would not be considered to have been convicted of a crime unless judgment had been pronounced against him, and that since sentence had been suspended in the case of the defendant and no judgment pronounced against him, he could not be deemed to have been convicted. But in the more recent case of Matter of Lewis v. Carter, 220 N. Y. 8, the Court of Appeals practically limited the Fabian case to its facts, saying, inter alia: "The word 'convicted' or 'conviction' is of equivocal meaning. It may mean the adjudication of guilt whether by plea, finding or verdict. It may mean the adjudication and the judgment or sentence."

The court went on to hold that, within the meaning of the Penal Law fixing sentences of second offenders, a person who had once been adjudicated guilty of a felony and who was again adjudicated guilty of a felony should be treated as a person who had "been convicted" of a felony for the second time, even though sentence might have been suspended upon him after his first trial. I am inclined to think that for the purpose of construction of subdivision (h) of rule XII of the Selective Service Regulations we should follow the decision of Matter of Lewis v. Carter rather than that of the Fabian case, for the following reasons: In the Fabian case the question was whether a man had lost the right of franchise as one of the incidents of conviction of felony. Having been convicted of felony he was subject to punishment and the loss of his franchise was part of the punishment. The trial judge suspended sentence as far as concerned any punishment by imprisonment or fine, and it might be reasonably argued that this suspension should apply equally well to that part of the punishment consisting of loss of franchise. In the case of Lewis v. Carter the court was considering the interpretation of a statute fixing the sentences to be imposed upon certain kinds of criminals and was making the distinction between first and second offenders. It unequivocally held that a man who had been adjudicated guilty of a felony once and was later adjudicated guilty of another felony was a second offender, even though sentence had been suspended in the first instance; the theory being, apparently, that a man who