251 F. 872 | 1st Cir. | 1918
Joseph H. Cushman, born June 26, 1899, enlisted March 8, 1917, in the Eleventh Company Coast Artillery, National Guard of Maine. He was in his eighteenth year, but at said date of enlistment was under the age of 18 by a little more than three months. He had a father entitled to his custody and control, whose written consent to his enlistment was never given.
Having been subsequently transferred to the Third.Company Coast Artillery Corps, National Guard of Maine, that company was mustered into the military service of the United States on July 25, 1917. When so mustered into the United States service with said company he was very nearly one month over the age of 18 3 years.
On August 24, 1917, Joseph M. Cushman, his father, filed a petition for a writ of habeas corpus to the commanding officer of said Third Company, alleging that his son’s enlistment on March 8, 1917, and subsequent mustering in as above, had been without his knowledge or consent. On the same day the writ prayed for was issued; the respondent made return thereto, producing Joseph H. Cushman in court as ordered; the cause was heard by the District Judge; and an order made discharging him and committing him to the petitioner’s custody —he being, as the order recited, “under the age of 18 years at the date of enlistment and no consent of parents to said enlistment being shown.” From this order the respondent appeals.
The petitioner relies on section 27 of the National Defense Act, passed June 3, 1916 (39 Stat. 166, 185, c. 134), wherein, among other things, it is provided:
*873 “That no person under üic age of eighteen 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.”
Section 27 purports by its title, “Enlistments in the Regular Army,” to regulate only enlistments in that branch of the military service of the United States. Ail the sections of the act from 2 to 55, inclusive, relate to the Regular Army and the various corps included therein. If the above provisions quoted from section 27 have any application to enlistments in the National Guard, it can only be because of the provision in section 69 that the qualifications for enlistment in the National Guard shall be the same as those prescribed for admission to the Regular Army. No express provisions are found in the act forbidding enlistments in the National Guard of minors under 18 without the written consent of parents or guardians.
We hold, therefore, that the District Court erred in discharging Joseph H. Cushman by its order of August 27, 1917, and that it should have discharged the writ and remanded him to the custody of the respondent.
The decree of the District Court is reversed, and the case is remanded to that court for further proceedings in accordance with this opinion. The appellant recovers his costs of appeal.