Ex parte Beaver

• Decision Date: 12 April 1921
• Docket Number: 10944.
• Citation: 271 F. 493
• Parties: Ex parte BEAVER.
• Court: U.S. District Court — Northern District of Ohio

271 F. 493

Ex parte BEAVER.

No. 10944.

United States District Court, N.D. Ohio, Eastern Division.

April 12, 1921

Turney & Sipe, of Cleveland, Ohio, for petitioner.

E. S Wertz, U.S. Atty., and D. J. Needham, Asst. U.S. Atty., both of Cleveland, Ohio, for respondent.

WESTENHAVER District Judge.

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. Sec. 2308a) on the charge of fraudulent enlistment.

Much of the law is well settled. A minor of the authorized enlistment age cannot, after having enlisted, obtain his release from military service by writ of habeas corpus. If he is within the age requiring the consent of parents or guardian, and enlists without such consent, the parents or guardian may, by a timely application, obtain his release. If, however, in the meantime and before they shall apply for the minor's release, he has committed an offense triable by court-martial and punishable by military law, their right to his custody and service is subordinate to the right of the military authorities to hold him to answer for such an offense. This much is conceded. See In re Morrissey, 137 U.S. 157 11 Sup.Ct. 57, 34 L.Ed. 644; Ex parte Dostal (D.C.) 243 F. 665, in which the authorities are collected and reviewed.

It is urged, however, that the alienage of the minor renders this law and these authorities inapplicable. This contention is based upon section 2, Act of August 1, 1894 (section 1888, U.S. Comp. Stat.; 28 Stat. 216), which provides that in time of peace no person who is not a citizen of the United States shall be enlisted. A like prohibition is made against persons whose previous service has not been faithful and honest, and who cannot speak, read, or write the English language, or who are over 35 years of age. It is conceded that, unless the enlistment in this case was one made in time of peace, this section is without application. It is now authoritatively settled by two recent decisions of the United States Supreme Court that the United States is not at peace, but at war, and that the laws applicable in time of war to the United States army and court-martial proceedings are now applicable. See Kahn v. Anderson, 254 U.S. . . ., 41 Sup.Ct. 224, 65 L.Ed. . . ., and Givens v. Zerbst, 254 U.S. . . ., 41 Sup.Ct. 227, 65 L.Ed. . . ., both decided January 31, 1921. Moreover, even in time of peace, an alien duly enlisted cannot obtain his discharge by writ of habeas corpus from military service and escape liability for offenses against military law by invoking the provisions of the section above cited. Being sui juris, it is settled that the United States only may plead his disability to avoid his enlistment contract, and that he may not. See Ex parte Grimley, 137 U.S. 147, 11 Sup.Ct. 54, 34 L.Ed. 636; Ex parte Dostal (D.C.) 243 F. 665, in which the authorities are collected and reviewed.

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. Sec. 1116 (U.S. Comp. Stat. Sec. 1884), provides:

'Recruits enlisting 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. Sec. 1118 (U.S. Comp. Stat. Sec. 1886), provides:

'No minor under the age of 16 years * * * shall be enlisted or mustered into the military service.'

R.S. Sec. 1117, provides:

'No 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.'

Most of the cases, including In re Morrissey, supra, were decided under these sections. Later the Act of March 2, 1899, to increase the efficiency of the army, contained in section 4 (Comp. St. Sec. 1889) the following proviso: 'The limits of age for original enlistments in the 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.

The National Defense Act of June 3, 1916, Sec. 27 (Comp. St. Sec. 1885a), provides:

'No person under the age of 18 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.'

Obviously, this supersedes R.S. Sec. 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. Secs. 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 F. 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 F. 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...