243 F. 664 | N.D. Ohio | 1917
This is an application by Rudolph Dostal, on behalf of one John Hackenberg, for a writ of habeas corpus. Upon the presentation of the petition an alternative writ was issued, and the defendants, in response thereto, produced in court the body of John Plackenberg and made a return showing the cause of his detention. Evidence was introduced on behalf of the petitioner and of the respondents.
John Plackenberg, the person alleged to be restrained illegally of his liberty, is a native of Austria. He came to this country about June 25, 1914. He enlisted on June 7, 1915, in Company B, Eighth In
On June 19, 1916, the company and regiment to which he belonged responded to the mobilization order of the President of the United States for service on the Mexican border. On July 2, 1916, he took the federal enlistment oath prescribed by section 70 of the National Defense Act of June 3, 1916. He was mustered out of the federal service on March 2, 1917. From the time of his enlistment and until he was mustered out he performed all the military duties required of him, and has drawn and accepted pay and clothing. On July 10, 1917, the company and regiment to which he belongs was called into the' federal service, pursuant to paragraph 2, section 1, Act M.ay 18, 1917. Fl’e reported for duty at die place of rendezvous with his company, and answered “present” to the roll call, and was checked as “present” by the federal mustering officer. On July 30th following, for some reason not developed in the evidence, he was placed under arrest, and has since been in confinement. On August 3, 1917, formal charges were preferred against liim for violating the laws of the United States and the Articles of War, particularly violation of the fifty-fourth Article of War relating to fraudulent enlistments.
Respondents’ answer shows that he is restrained of his liberty by reason of these charges, and that he will be brought to- trial upon them before a court-martial as soon as practicable and without any undue delay.
The evidence shows that he is not, in fact, a citizen of the United States; that he has not made a legal declaration of his intention to become a citizen; that he was born January 22, 1897, and was therefore 18 years and 5 months of age when he first enlisted, and is now under 21 years of ag'e; that no written consent of a parent or guardian was obtained or given before he enlisted; and that, because of his statement touching his age and citizenship in his application for enlistment, no such consent was asked or required. Further, that he had no parent or guardian at the rime of his enlistment in the United States, that his mother was then living in Austria, and that she on August 25, 1916, arrived in the United States, bringing with her a younger daughter.
She testifies that, she did not know of his enlistment until after her arrival in the United States, at which time he was absent on the Mexican border in service with his company, and that she learned of his enlistment immediately after her arrival. She testifies that she is
Upon these facts the petitioner, Rudolph Dostal, contends that John Hackenberg’s confinement and detention are illegal upon the following grounds:
(1) That he is under 21 years of age, and that neither at the time of his enlistment, nor since, has his parent or guardian consented in writing to his enlistment.
(2) That he is an alien subject of the emperor of Austria, and has not made a legal declaration of his intention to become a citizen of the United States.
(3) That he has refused to enlist or to be mustered into the service as a soldier in the United States army, under the President’s mobilization or draft order of July 10, 1917, and that upon the facts stated he cannot be compelled so to enlist or to be mustered into the service.
(4) That he has a widowed mother living with him in Akron, Summit county, Ohio, of whom he is the only and sole support.
“It cannot be doubted that tbe civil courts may in any case inquire into the jurisdiction of a court-martial, and if it appears that the party condemned is not amenable to its jurisdiction, it may discharge him from the sentence. And, on the other hand, it is equally clear that by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial, and that no mere errors in their proceedings are open to consideration. The single inquiry, the test, is jurisdiction. That being established, the habeas corpus must be denied and the petitioner remanded. That wanting, it must be sustained and the petitioner discharged. If Grimley was an enlisted soldier, he was amenable to the jurisdiction of the court-martial.”
“Whore a minor enlisted without the consent of his parent, or guardian, and his mother, who was Ms surviving parent, on learning of his enlistment shortly thereafter, did nothing to repudiate the same or to secure his release, and testified that she would have beer reconciled to it, had he remained in the army and not deserted, but that after his desertion she wanted to keep him out of the army, her acts constituted an implied consent to his enlistment."
See, also, the following: State v. Dimick, 12 N. H. 194, 37 Am. Dec. 197; In re Morrissey, 137 U. S. 157 (bottom of paragraph at page 159), 11 Sup. Ct. 57, 34 L. Ed. 644: Ex parte Hubbard (C. C.) 182 Fed. 76 (middle of paragraph at page 81).
In the present case both John Hackeuberg and his mother, after the passage of the National Defense Act reducing to 18 years the age above which one may enlist without the consent of the parent or guardian, have acquiesced in his continuing in the service, thus permitting him to draw the pay and emoluments of a soldier This acquiescence, in my opinion, is the equivalent of a prior written consent, arid might of itself be sufficient to bar the mother from the relief here asked.
An alien, who has not made a legal declaration of his intention to become a citizen, is not obliged to enlist. He is not, under the provisions of Act May 18, 1917, subject to the selective draft. He cannot be compelled or coerced, in the present state of the law, to enlist or perform military service. He may, however, voluntarily offer himself for service as a soldier, and, if accepted, he thereby acquires the statu1: of an enlisted man, subject to all its duties ana obligations. The government may not accept him; but, if accepted, he c.anuot himself plead his want of qualification, nor escape service.
This question was fully considered in U. S. v. Cottingham, 1 Rob. (Va.) 615, 40 Am. Dec. 710. In that case an alien had enlisted, rep resenting himself to be a citizen of the United States, under an act of Congress which prescribes as a qualification for enlistment that all recruits should be citizens of the United States. In the opinion it is said:
•‘An alien has no right, founded upon any principle either of municipal or international law, to claim exemption from {lie consequences of his own voluntary engagement, whether for military or any other service. No one supposes*672 that he labors under a disability in this respect; for though, by such a stipulation, he may by possibility involve himself in difficulties in regard to his allegiance to his native sovereign, that is' a matter for his own consideration, and cannot affect the validity of his new obligation. If any authority were necessary for so self-evident a proposition, it would be found, not only in the practice of employing foreign mercenaries, which has prevailed amongst civilized nations in all ages, but in the doctrine as laid down by the most approved writers: Vattel, b. 1, c. 19, § 213; 1 Bl. Com. 370.”
It is settled law that eligibility requirements are for the protection of the government, and not for the soldier. If the government waives ’an eligibility requirement, or if, after enlistment, it does not avail itself thereof to discharge the soldier, the latter cannot urge his want of qualification to obtain his discharge, or to escape punishment for an offense against military law. The law in this respect is best stated by Mr. Justice Brewer in Re Grimley, supra, from which we quote as follows:
“Grimley has made an untrue statement in regard to his qualifications. The government makes no objection because of the untruth. The qualification is one for the benefit of the government, one of the contracting parties. Who can take advantage of Grimley’s lack of qualification? Obviously only the party for whose benefit it was inserted. Such is the ordinary law of contract. Suppose A., an individual, were to offer to enter into contract with persons of Anglo-Saxon descent, and B., representing that he is of such descent, accepts the offer and enters into contract; can he come thereafter, A. making no objection, repudiate the contract on the ground that he is not of Anglo-Saxon descent? A. has prescribed the terms. He contracts with B. upon the strengtn of his representation that he comes within these terms. Can B. thereafter plead his disability in avoidance of the contract? On the other hand, suppose for any reason it could be- contended that the proviso as to age was for the benefit of the party enlisting; is Grimley in any better position? The matter of age is merely incidental, and not.of the substance of the contract; and can a party, by false representations as to such incidental matter, obtain a contract, and thereafter disown and repudiate its obligations on the simple ground tlia't the fact in reference to this incidental matter was contrary to his representations? * * . * He cannot of his own volition throw off the garments he has once put bn, nor can he, the state not objecting, renounce his relations and destroy his status, on the plea that, if he had disclosed truthfully the facts, the other party, the state, would not have entered into the new relations with him, or permitted him to change his status. * * * A naturalized citizen would not be permitted, as a defense to a charge of treason, to say that he had acquired his citizenship through perjury, that he had not been a resident of the United States for five years, or within the state or territory where he was naturalized one year, or that he was not a man of good moral character; or that he was not attached to the Constitution. No more can an enlisted soldier avoid a charge of desertion, and escape the consequences of such act, by proof that he was over< age at the time of enlistment, or that he was not able-bodied, or that he had been convicted of a felony, or that before [the time of] his enlistment he had been a deserter from the military service of the United States. These are matters which do not inhere in the substance of the contract, do not prevent a change of status, do not render the new relations assumed absolutely void.”
United States statutes do not make void the enlistment contract of an alien. His actual situation after enlisting is less favorable than that of a minor, intoxicated person, or one over the age limit, who the law says shall not be enlisted. In all these cases the uniform holding is that the enlistment is none the less valid, although the enlisted man may perhaps be punished for his fraudulent enlistment. Section 1888,
Section 58 of the National Defense Act provides that the National Guard shall consist of the regularly enlisted militia between the ages of 18 and 45 years, organized, armed, and equipped as provided by that act. Section 70 provides that enlisted men in the National Guard of the several states, then serving under enlistment contracts which contain an obligation to defend the Constitution of the United States and to obey the orders of the President of the United States, shall be recognized as members of that National Guard. This section further provides that, when the enlistment contract does not contain this obligation, the militiaman shall not be recognized as a member of the National Guard until he shall have signed an enlistment contract and taken and subscribed the oath therein provided. This oath is one to support and defend the Constitution of the United States and obey the orders of the President.
John Hackenberg’s original enlistment contract, dated June 7, 1915, contains the obligation prescribed by section 70. In other words, he had taken the required oath. The adoption, therefore, of the National Defense Act, without anything more, made him a member óf the Na
Section 111 further provides that, whenever Congress authorizes the use of the armed land forces of the United States for any purpose, the President may draft into the military service of the United States any or all members of the National Guard; also that all persons so drafted shall, from the date of their draft, stand discharged from the militia, and shall from said date be subject to the laws and regulations for the government of the army of the United States. Authority from Congress and a draft order from the President is all the the formality required to make him a soldier of the United States army. He becomes such from the date of the draft order. He is subject to be dealt with as a soldier in the United States army from the date when called into service, which in this case was July 10, 1917.
Furthermore, the act of May 18, 1917, entitled “An act authorizing the President to. increase temporarily the military establishment of the United States,” called the Selective Draft Daw, confers this authority on the President. He is thereby authorized, in view of existing emergencies, to draft into the military service of the United States, in accordance with the provisions of section 111, of the National Defense Act, all members of the National Guard. His draft order, made pursuant to the authority of these two acts, constitutes John Hackenberg a soldier in the United States army; no further act on his part is required to malee him subject to military trial or punishment. He stands from July 10, 1917, on the same basis as one called and accepted under the'selective draft provisions of the same act, except that by his previous enlistment he has deprived himself of the exemption privileges accorded to persons called for the first time under that act. His failure to respond to the call would have made him liable to punishment as a deserter.
These conclusions follow from the plain language of the law. We are not, however, without pertinent authority. In Houston v. Moore, 5 Wheat. 1, 5 L. Ed. 19, the Supreme Court had under consideration a law drafting the militia of the state of Pennsylvania into the United States army, and the power and authority of Congress and the President under the Constitution was fully reviewed. All of the judges agreed that this power was practically unlimited; that the President, authorized by Congress, might call forth the militia, either by a requisition on the Governor of the state or by direct command to the officers and members of the militia; and that the officers and members of the militia might be made.members of the United States army, subject to the orders of the government, and liable to be dealt with pursuant to the Articles of War, from the date of the draft order, or such other time, or under such other conditions as Congress and the President saw fit to impose.
Under Act July 17, 1862, c. 204, 12 Stat. 601, the militia of the several states were drafted into the military forces of the United States, and it was provided that any person failing to report at the place of rendezvous should be deemed a deserter, and might be arrested and sent to the nearest military post for trial by a court-martial. A militiaman failed to respond, and was charged as a deserter. Upon an application to District Judge Cadwallader for a writ of habeas corpus, it was held, on authority of Houston v. Moore, supra, that a member of the militia became a drafted soldier of the United States army from the date of the draft order, and was subject to be dealt with by a court-martial for an offense against the military laws of the United States. In re McCall, 15 Fed. Cas. 1225, No. 8,669.
For the foregoing reasons, I am of opinion that neither John Hackenberg nor his mother is entitled to the relief prayed for. The petition will therefore be dismissed.