Ex parte McMillan

• Decision Date: 06 February 1917
• Docket Number: 1 Div. 225
• Citation: 15 Ala.App. 571,74 So. 396
• Parties: Ex parte McMILLAN et al.
• Court: Alabama Court of Appeals

74 So. 396

15 Ala.App. 571

Ex parte McMILLAN et al.

1 Div. 225

Court of Appeals of Alabama

February 6, 1917

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Petition by W.F. McMillan and others for a writ of habeas corpus. From a decree of the chancery court dismissing the petition, the petitioners appeal. Writ denied, and appeal dismissed.

Granade & Granade, of Chatom, for appellants.

W.L Martin, Atty. Gen., and Lawrence E. Brown, Asst. Atty. Gen for appellee.

PELHAM P.J.

This is an appeal from a decree of the chancery court of Mobile dismissing the petition of appellants for habeas corpus to secure a release of the petitioners from the custody of the captain of Company M, First Regiment, of the Alabama National Guard, on the ground that the petitioners were not regularly and properly mustered into the service of the state as members of the Alabama National Guard.

The court judicially knows that on or about the 18th day of June, 1916, the President of the United States called for the mobilization of the National Guard of the United States on the Mexican border. The court also judicially knows that under a resolution of the federal Congress passed July 1, 1916, the President was authorized to, and did, draft into the military service of the United States, under the provisions of what is known as the National Defense Act (approved June 3, 1916), the organized militia of the state of Alabama; and that under the provisions of said act of Congress, from the said date of being drafted, the members of the National Guard of Alabama stand, and are, discharged from militia service for the state, and are subject to the laws and regulations of the Army of the United States, as far as applicable to the volunteer army. The court further judicially knows that, in conformity to the above-mentioned provisions, Company M of the First Regiment of the Alabama National Guard was, several months ago, transferred, as a part of the volunteer forces of the United States, to the Mexican border for service, and as such its members are now outside of the jurisdiction of the state courts on the border as members of the volunteer army of the United States performing duties as such, and subject only to the commands of the officers of the United States government, and federal authorities.

The rules and regulations of the United States Army are the law of the land (Root v. Stevenson, 24 Ind. 115); and whatever authority the state courts have under state laws to grant writs of habeas corpus, it does not apply to discharge from custody of persons held by authority...