37 F. 327 | U.S. Circuit Court for the Northern District of Georgia | 1889
The petitioner, J. C. Chapman, enlisted in the United States army at Atlanta, Ga., in 1886, when he was a minor of the age of 20 years and 8 months. At the time he had a father living, entitled to his custody and control, who did not consent to the enlistment. It does not appear whether Chapman represented himself at the time of enlistment as a major, or as a minor without parents or guardian, but the inference is that he did one or the other, as ho says he signed all the papers presented to him; and it is difficult to believe, in the absence of evidence to that effect, that the recruiting officer would enlist an admitted minor without inquiry as to his parents or guardian. Soon after enlistment—about two months—Chapman deserted. The desertion continued until December last, when he was arrested in Atlanta. He is now about 23 years of ago, and himself sues out the writ of habeas corpus on the ground that his enlistment was illegal and void, because without the consent of his father,, and that therefore he cannot be held in custody as a deserter. The statutes of the United States governing the question of Chapman’s enlistment are found in section 1117 of the Revised Statutes, to-wit:
“So person under the age of 21 years shall be 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. ”
—And in the third article of war, found in section 1342, Rev. St.:
“ Every officer who knowingly enlists or musters into the military service any minor over the age of 16 years, without the written consent of his parents or guardians, or any minor under the age of 16 years, or any insane or intoxicated persons, or any deserter from the military or naval service of the United States, or any person who has been convicted of any infamous criminal offense, shall, upon conviction, be dismissed from the service, or suffer such other punishment as a court-martial may direct. ” 8
By these statutes it appears that the enlistment of a minor into the army of the United States, without the written consent of parents or guardians, if he have any entitled to his control, is not only prohibited, but, when knowingly done by an officer, is an offense punishable with a heavy penalty. In the many adjudicated cases where the effect of a minor’s enlistment into the army or navy without the consent of the parents or guardians has been considered, there is unanimity in holding that where the statute requires such consent the enlistment without is illegal and invalid; but there has been some diversity of opinion as to whether the minor himself, so enlisted, could claim his release, either before or after coming of age; some going to the extent that the enlistment, although illegal, was not absolutely void, but could be validated by ratification, either by the minor continuing in the service, receiving pay and rations, after he became of age, or by the consent of the parents or
“The provision should not be extended to protect a party competent to contract against the consequences of his deliberate agreement, or of his own mis! representations, unless the language plainly requires such a construction. The language is satisfied by a construction which permits the parents or guardians, who are entitled to the services and custody of the minor, to intervene and assert their rights, if their consent to his enlistment has not been obtained. Several adjudications are to the effect that under section 1117, or former laws of congress of similar purport, the contract of enlistment should be held invalid on the application of the parents or guardian of the minor. Com. v. Blake, 8 Phila. 523; Turner v. Wright, 5 Phila. 296; Henderson v. Wright, Id. 299; Seavey v. Seymour, 3 Cliff. 439. None, however, are cited by counsel, or have met the attention of the court, in which it lias been decided that the minor, if over 16 years of age, can assert the invalidity of his contract. The case of Menges v. Camac, 1 Serg. & R. 87, arising under the act of March 16, 1802, is directly in point. The statute in that case was similar in its provisions to section 1117, and the court held the minor bound by his contract; that the parent alone could assert its invalidity, and therefore refused to discharge the minor upon habeas corpus at his own application.”
In 4 Op. Atty. Gen., supra, Mr. Nelson, in responding to a communication of the secretary of the navy, says:
“An infant is not bound by the contract of enlistment after he attains his full age. He may repudiate it. The contract with regard to him is voidable, and may or may not be carried into full execution, at his election. When made, he had no will in legal contemplation. It was made, moreover, with the consent of his gqardian, who had a right to enter into it for his benefit; but such authority ceased with the expiration of his minority, and he was then fully competent to affirm or disaffirm the contract made on his behalf.”
In 5 Op. Atty. Gen., supra, Mr. Crittenden, in response to inquiries from the' secretary of war with regard to the secretary’s duty in discharging minors enlisted without the consent of the parent or guardian, says:
“That the enlistment of the soldier was without the consent of his parent or guardian is the cause stated in the statute for the discharge of the minor. The parent or guardian must make application, and furnish the proof as to*331 the age of the soldier, at the time of the enlistment. If the person,' who was a minor at the time of enlistment, lias since attained to his full age of 21 years, then ho is capable to choose and act for himself. To apply for his discharge upon evidence that his enlistment was during his minority, and upon the allegation that such enlistment was without the consent of his parent or guardian, lie proving the affirmative of infancy at the time of enlistment, and that his father was then living, or that he then had a guardian, would thereby put the burden of prooí' that the parent or guardian had consented to such enlistment upon the government. ”
In Re McNulty, supra, Judge Lowell held that the minor himself during minority might claim tho invalidity of the contract. The Case of Menges, supra, relied upon by Judge Wallace as a case in point, turned upon tho question whether the parent’s ratification, five or six days after, validated tho enlistment. In giving his opinion, Chief Justice Trrxmman, in speaking of the required consent, says: “.Before such consent given, tho minor or the parent may demand his discharge, and flic law forbids tho holding of him.” I have examined all the cases cited, and considered the reasoning of those judges holding that the enlistment binds the minor before and after attaining majority, and am unable to agree; thereto. It is a well-settled doctrine of every system of jurisprudence that whatever is done in contravention of prohibitory law is null and void. 1 think that, in accordance with this principle, the enlistment of a, minor without the written consent of his parent or guardian, if he has one entitled to his services and control, is invalid, and of no legal effect, and, on prinoiple and authority, that the invalidity may be claimed by the minor himself before or after attaining majority, or by any person entitled to his control or services. A judgment will be entered in this ease, reversing the judgment of the district court, and adjudging the writ of habeas corpus absolute, and directing tho petitioner’s discharge from custody, and the cancellation of the bonds given .for. his appearance pending the appeal. Costs to follow judgment.