271 F. 493 | N.D. Ohio | 1921
This is an application for writ of habeas corpus by Thomas Alfred Beaver, on behalf of his minor son, Albert Edward Beaver. Upon presentation of the petition, the respondent appeared, waived the issue and service of an alternative writ, and has made answer. The facts are agreed.
Albert Edward Beaver, the minor, is an alien subject of the king of Great Britain, residing at the time of his alleged enlistment with his father in the United States. He was born in England April 21, 1904 He enlisted in the United States army November 4, 1920, under the fictitious name of .Roy Smith. He represented himself to be 19 years and 6 months of age, and that he had been born in the city of New York. He was duly accepted as a soldier, took the enlistment oath, and drew pay, rations, clothing, and allowances. He deserted December 27, 1920, and is.now held by the respondent at the request of the United States military authorities to answer a charge of desertion. He is also liable to prosecution under the fifty-fourth Article of War (Comp. St. § 2308a) on the charge of fraudulent enlistment.
The ground most strenuously urged is that, inasmuch as the minor was under 18 years of age, his enlistment is not only unauthorized, but forbidden by law, and hence he is not, and never became, a soldier subject to military law as a member of the military establishment of the United States. The minimum enlistment age is said to be 18 years. This contention requires an examination of the United States statutes on the subject.
R. S. § 1116 (U. S. Comp. Stat. § 1884), provides:
“Recruits enlisling in the army must be effective, able-bodied men, and between the ages of 16 and 35 at the time of their enlistment.”
R. S. § 1118 (U. S. Comp. Stat. § 1886), provides:
“No minor under the age of 16 years * * * shall be enlisted or mustered into the military service.”
R. S. § 1117, provides:
“No person under the ago of 21 years shall he enlisted or mustered into tne military service of the United Slates without the written consent of his parents or guardians; provided that such minor has such parents or guardians entitled to his custody and control.”
Most of the cases, including In re Morrissey, supra, were decided tinder these sections. Eater the Act of March 2, 1899, to increase the efficiency of the army, contained in section 4 (Comp. St. § 1889) the following proviso:
*496 “Tüe limits of age for original enlistments in tlie army shall 'be 18 and 35 years.”
This proviso, it is asserted, repealed by implication the minimum age limit of 16 years previously embodied in sections 1116 and 1118. Such is the view of the editor of U. S. Comp. Stat. 1916. See notes to sections 1884 and 1886. It is also the view of the article entitled “Army and Navy,” 5 Corp. Jur. p. 298. The exact question has not, however, been considered or decided in any of the reported cases.
“No person under the age of 18 years shall he enlisted or mustered into the military service of the United States without the written consent of his parents or guardians, provided that such minor has such parents or guardians entitled to his custody and control.”
Obviously, this supersedes R. S- § 1117, and it is asserted that it repeals by implication the minimum age limitation prescribed by section 4, Act March 2, 1899, and perhaps restores the minimum age limit of 16 years as originally provided in R. S. §§ 1116 and 1118. The War Department officials charged with the administration of the law have interpreted it as having this effect. See Mss. opinion, H. A. White, Judge Advocate, Chief Administrative Law Division, dated January 12, 1921.
The question thus presented cannot be said to have been finally-settled by decision, but the tendency thereof is to support the War Department’s view. In Ex parte Rush (D. C.) 246 Fed. 172, a case-arising since the adoption of the National Defense Act, the minor was over 17 years of age when he enlisted, and under 18 when he deserted. Clayton, District Judge, in denying a writ of habeas corpus, seems to have entertained the opinion that, as a. result of section 27, a minor over 16, but under 18, years of age may enlist in the-United States army and become subject to military law. This conclusion is, however, stated and assumed, rather than deduced as the result, of an examination of the several pertinent sections above cited.
In Hoskins v. Pell (5 C. C. A.) 239 Fed. 279, 152 C. C. A. 267, L. R. A. 1917D, 1053,-all the pertinent sections were quoted and apparently fully considered. The minor was not only under 18, but under 16, years of age at the time of his enlistment, and had merely taken the-enlistment oath and returned home, without drawing pay, rations, or clothing. The writ was granted, because the minor was under 16-years of age, but the view is expressed that a minor over 16, even if under 18, acquires the status of a soldier by enlisting for military-service, and is subject to be dealt with pursuant to military law.
In Ex parte Foley (D. C.) 243 Fed. 470, a case also arising since-the adoption of section 27 of the National Defense Act, Judge Evans held that a minor under 18 years of age, who had enlisted without the consent of his parents, could not be discharged on their application-after he had committed an offense punishable by military law.
In Hoskins v. Dickerson (5 C. C. A.) 239 Fed. 275, 152 C. C. A., 263, Ann. Cas. 1917C, 776, L. R. A. 1917D, 1056, a case arising since
Moreover, in the event the 18-year minimum is repealed, and the 16-year minimum is not restored, then the common law applicable to the enlistment of minors under 18 years of age will be in force. By the common law it seems that a minor of the age of discretion might enlist, regardless of any other age limit. See 5 Corp. Jur. 300; In re Morrissey, 137 U. S. 157, 159, third paragraph, 11 Sup. Ct. 57, 34 L. Ed. 644; U. S. v. Blakeney, 3 Grat. (Va.) 405; Commonwealth v. Gamble, 11 Serg. & R. (Pa.) 92. This being so, the instant case is governed by that long line of authorities holding that a minor over 16 years of age, who has enlisted without the previous consent of his parents or lawful guardian, cannot, on his own application, be released in any event, and cannot be released on their application after he has committed an offense punishable by military law and is being held to answer the same.
If, however, the minimum enlistment age is 18 years, we should be confronted with the much-mooted question as to whether the enlistment of a minor below that age is so far void that he cannot be detained and tried by the military authorities for an offense against military law, committed while occupying the de facto status of a soldier. In support of the view that he cannot be so detained and tried, it is urged that a minor is not sui juris, and that his contract of enlistment is void, and hence does not operate to change his civilian to a military status, and make him a member of the military establishment of the United States for the purpose even of a trial for an offense committed while occupying that de facto status. This argument assumes that a minor’s enlistment contract is void, and not merely voidable, while the latter seems to be the true rule. See In re Morrissey, supra, 137 U. S. 159, third paragraph, 11 Sup. Ct. 57, 34 L. Ed. 644, and cases cited.
The application for writ of habeas corpus will be denied.