Ex parte Dostal

• Decision Date: 15 August 1917
• Docket Number: 9562.
• Citation: 243 F. 664
• Parties: Ex parte DOSTAL.
• Court: U.S. District Court — Northern District of Ohio

243 F. 664

Ex parte DOSTAL.

No. 9562.

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

August 15, 1917

[Copyrighted Material Omitted]

James A. Miles and Franklin Rubrecht, both of Columbus, Ohio, for petitioner.

Hubert J. Turney, and E. S. Wertz, U.S. Atty., both of Cleveland Ohio, for respondents.

WESTENHAVER District Judge.

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 Hackenberg and made a return showing the cause of his detention. Evidence was introduced on behalf of the petitioner and of the respondents.

John Hackenberg, 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 Infantry, National Guard of the State of Ohio. At the time of his enlistment he made an application declaring himself to be 21 years of age and a citizen of the United States. He was thereupon accepted as an enlisted man and agreed to serve for a term of 3 years, unless sooner discharged. He also made and subscribed an oath of enlistment. By this oath he declares that he will bear true faith and allegiance to the United States of America and the state of Ohio, that he will serve them honestly and faithfully against all their enemies whomsoever, and that he will obey the orders of the President of the United States, the Governor of the state of Ohio, and the orders of the officers appointed over him, according to the rules and articles of war, and the regulations for the government of the Ohio National Guard.

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 May 18, 1917. He reported for duty at the 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 him 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 age; 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 time 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 without means or ability to support herself and that she is being supported in a large part by him and by a son-in-law.

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.

This application is made on his behalf by Rudolph Dostal, his brother-in-law. It is proper practice to make an application by one on behalf of another; but an application in this form entitles the petitioner to such relief only as might be given if the application were made by the person thus detained in his own name. An application may be made by a parent or guardian having a superior right to the custody and control of a person illegally detained, when such person might not himself obtain relief. In similar cases, a parent or guardian has been permitted to obtain the discharge of a minor from military control, when the minor himself might not obtain such relief. Any objection to granting relief in the present case, because the application was made by or on behalf of the person confined, rather than by the parent or guardian entitled to his custody and control, is a matter of form only. If it were necessary, in order that full relief should be granted, according to the rights of the parent or guardian, an amendment could be made, making the mother a party plaintiff. I shall therefore disregard the question of form, and dispose of this case on its merits, as if all proper parties were present asking relief.

It is settled law that, if a military tribunal has jurisdiction to try a person charged with an offense against military law, the civil courts cannot interfere by writ of habeas corpus. In the case of In re Grimley, 137 U.S. 147, at page 150, 11 Sup.Ct. 54 (34 L.Ed. 636), Mr. Justice Brewer, delivering the opinion, said:

'It cannot be doubted that the 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.' Authorities to the same effect are numerous. See the following: In re Tarble, 13 Wall. 397, 20 L.Ed. 597; Ex parte Dunakin (D.C.) 202 F. 290; Ex parte Hubbard (C.C.) 182 F. 76; Dillingham v. Booker, 163 F. 696, 90 C.C.A. 280, 18 L.R.A.(N.S.) 956, 16 Ann.Cas. 127; U.S. v. Williford, 220 F. 291, 136 C.C.A. 273.

The primary and controlling question then is: Was or is John Hackenberg an enlisted man, occupying and enjoying that status, with all its burdens and obligations? If he is, then he may be detained by the military authorities, and tried by a court-martial for any offense committed by him against military law. It is not denied, but, on the other hand, conceded, that a misrepresentation respecting his age and citizenship, whereby he procured and enjoyed the pay and emoluments of a soldier, is an offense against military law, subject to be dealt with according to the fifty-fourth Article of War.

I am of opinion that this question must be answered in the affirmative. His application to be enlisted, and the acceptance thereof, his taking the prescribed oath as a member of the Ohio National Guard, his taking later the federal enlistment oath as prescribed by section 70 of the National Defense Act, his receipt of pay and clothing over a long period, from the state and nation, makes him a soldier, subject to the jurisdiction of a military tribunal for any offense committed against military law. The fact that he was under 21 when he enlisted, or that the written consent of his parent or guardian was not given to such enlistment, or that he was an alien, who had not made a declaration of his intention to become a citizen, or that he had then or now a mother dependent upon him for support does not, in my opinion, make his contract of enlistment void, or prevent the status of a soldier, with its duties and obligations, attaching to him. My reasons for these conclusions, and some observation as to each contention made by the petitioner, will be briefly stated.

(1) It is settled law that a minor, who enlists without the written consent of a parent or guardian, when such consent is required, becomes a soldier. His enlistment is not void, nor is it voidable in any event by him. He may be released from the service by a timely application of the...