Ex parte Reaves

• Decision Date: 16 February 1903
• Citation: 121 F. 848
• Parties: Ex parte REAVES.
• Court: U.S. District Court — Middle District of Alabama

121 F. 848

Ex parte REAVES.

United States Circuit Court, M.D. Alabama.

February 16, 1903

Gordon Macdonald, for petitioner.

W. S Reese, U.S. Atty.

Petition for habeas corpus by P. A. Reaves to regain the custody of his minor son, who was held by the chief of police of the city of Montgomery, Ala., on the charge of being a deserter from the navy. The minor, who resided in the city of Montgomery, Ala., with his father, left home and went to Meridian, Miss., where he enlisted in the navy. He was then and still is under the age of 18 years, but procured his enlistment by falsely representing to the recruiting officer that he was over 18 years of age. After deserting his ship, he returned home, and was in the custody of his father, who had put him to work, and he was so employed when arrested by the chief of police. The other facts are fully stated in the opinion.

JONES District Judge.

The statutes (U.S. Comp. St. 1901, pp. 1007, 1008) regarding enlistments in the navy concern three classes of minors First, those who cannot be enlisted at all; second, those who 'shall not be enlisted' without the consent of the parent or guardian; third, those who may, perhaps, enlist of their own violation, regardless of the consent of parent or guardian.

Where minors 'who shall not be enlisted' in the army or navy, without the consent of parent or guardian, nevertheless enlist without consent, the inferior courts of the United States and the highest courts of the states, before it was settled they could not interfere on habeas corpus, have accorded variant legal consequences to such enlistments: First, the enlistment is absolutely void, and the minor as well as the parent may so treat it; second, it is void as to the parent or guardian only, and good as to the minor; third, the enlistment is voidable only, and not void, as to the parent or guardian; fourth, notwithstanding the parent's disaffirmance, a military or naval status is impressed upon the minor until the enlistment is annulled by military or civil authority, and leaving the service before discharge, with intention not to return, though with the approval of the parent, constitutes the offense of desertion, for which the minor may be detained from the parent, and punished, though otherwise entitled to discharge.

For nearly a century this conflict of opinion among judges of eminence and courts of the highest authority has vexed our jurisprudence. The Supreme Court has decided that the enlistment of a minor, when the statute permits him to serve with the consent of the parent, is good as to the minor, although enlisted without the parent's consent, and that the parent alone can assail the enlistment. It has not determined whether the enlistment is void, or merely voidable, as against the nonassenting parent; and, if voidable merely, whether, when avoided, it is to be treated as void from its inception.

The maintenance of the authority of the parental relation is of infinite concern to society. Government did not create the relation, for it existed in a state of nature. The law merely recognizes the relation, and regulates its reciprocal rights and duties. The general government has no jurisdiction to interfere with the domestic relation as such. Congress may, however, in the exercise of its power to declare war, raise armies, provide and maintain a navy, displace or subordinate the rights flowing from the parental relation to whatever extent it deems necessary. When Congress legislates under these powers, the parent's existing right, and the state laws protecting and defining it, are displaced or suspended no further than the intention is manifested in the statute. Commonwealth v. Downes, 24 Pick. 230. If, after giving such statutes a fair and reasonable construction in the light of their purpose, doubt arises as to the effect of prohibitions upon enlistments, made in furtherance of the parental right, that doubt must be resolved in favor of the parent. Silver v. Ladd, 7 Wall. 219, 19 L.Ed. 138; Ex parte Plowman, 53 Ala. 440; Bechtel v. U.S., 101 U.S. 597, 25 L.Ed. 1019; Commonwealth v. Harrison, 11 Mass. 70.

Looking to the law of the state of which the petitioner and his minor child are citizens, we see that the rights of the parent are greatly venerated and valued. The law secures to the parent the right to keep the minor at home, to have the comfort of his society, the aid of his labor, and the duty and pleasure of training him. The will of the parent is made the law for the child, and for all who deal with him. The minor has no power, directly or indirectly, to undermine the right of parental control and custody.

Turning from the state laws to the statutes of the United States, which must control the decision here, we find no intention to displace the rights secured to the parent, under the state law, to the custody and control of any minor under 18 years of age. Congress has followed the policy of the state by declaring that such minors 'shall not be enlisted' without the consent of the parent or guardian, and, to make the prohibition more effective, subjects the recruiting officer, the government's representative, to such penalty as a court-martial may inflict for a knowing violation of the law in this regard.

Why does the law authorize enlistments in certain cases, unless it be to create a military or naval status thereby? Why does it forbid enlistments in certain cases, unless it intended no military or naval status should be created thereby? Philpott v. St. George's Hospital, 6 H.L.Cas. 338; 27 L.J.Ch. 72. Congress well knew, if a military status were impressed upon the minor, it would interrupt the parental relation and the rights flowing therefrom. The command is emphatic that certain minors 'shall not be enlisted' without the parent's consent. Can it be doubted that the command was given to prevent the minor's acquiring any military status whatever against his parent when he enlisted without the parent's consent? 'A thing which is in the intention of the makers of the statute is as much in the statute as if it were in the letter. ' Eyston v. Studd, 2 Plowden, 465; Holmes v. Carley, 31 N.Y. 290; United States v. Kirby, 7 Wall. 482, 19 L.Ed. 278. Congress deemed such enlistments pernicious and hostile to the public weal, and peremptorily forbade them. The law having impressed that character upon the transaction, it can have no other character in the courts. As said in the United States v. The Trans-Missouri Freight Association, 166 U.S. 290, 17 Sup.Ct. 540, 41 L.Ed. 1007: 'When the lawmaking power speaks upon a particular subject over which it has constitutional power to legislate, public policy in such a case is what the statute enacts. ' Upon reason and authority, the enlistment here involved is contrary to public policy, and absolutely void as to the father. In re Chapman (C.C.) 37 F. 330, 2 L.R.A. 332; Bank of U.S. v. Owens, 2 Pet. 527, 7 L.Ed. 508; Kennett v. Chambers, 14 How. 38, 14 L.Ed. 316; Miller v. Ammon, 145 U.S. 421, 12 Sup.Ct. 884, 36 L.Ed. 759; Birkett v. Chatterton, 13 R.I. 299, 43 Am.Rep. 30. The same consequences do not result in favor of the minor, because the statute discloses a contrary intent so far as he is concerned. It does not forbid his service as such, or regard it as vicious or improper in itself. The prohibition is imposed solely for the protection of the parent's rights. The minor, in the eye of the statute is not harmed by violation of that right. The minor, therefore, may not invoke the violation of the prohibition; while the parent, for whose benefit the prohibition is imposed, may treat the transaction as absolutely void as to him, and wholly ineffective between him and the government. Brooklyn Life Insurance Company v. Bledsoe, 52 Ala. 551; Spring Company v. Knowlton, 103 U.S. 59, 26 L.Ed. 347.

It is a maxim of the law that no power can be exercised indirectly which cannot be lawfully exercised directly, and whether or not the exercise of the power is lawful must be tested and determined 'by its ordinary and natural effect' upon the right against which the exercise of the power is directed. Henderson v. Mayor, 92 U.S. 259, 23 L.Ed. 543; Joseph v. Randolph, 71 Ala. 499, 46 Am.Rep. 347. If the minor by doing a wrongful act as against the father, and the government by doing a further wrong to the father, in attempting to enforce an enlistment made in violation of his wishes, can impress upon the minor, in behalf of the government, as against the father, a status which suspends for any period of time the parent's right to the custody and control of his minor child, it results inevitably that the joint wrong of the minor and the government forfeits, in favor of the government, the wrongdoer, as against the innocent and nonassenting father, rights the statute intended to preserve and safeguard for the father. If this is not doing by indirection what cannot be done directly, it is impossible to present an illustration which would violate the maxim. Magdalen College Case, Coke's Reports, vol. 11, page 66; Wells v. People, 71 Ill. 532.

In the absence of draft or conscription, there can be no military or naval status unless it is voluntarily assumed. There must be legal consent, express or implied. The minor, against the wishes of his parent, is forbidden to consent. The minor cannot volunteer, in the eye of the law, against the father's wishes. The father's will is the only will the minor can have. When this minor entered the navy against the father's will, his service, as against the father, in the legal sense, was just as involuntary and unlawful as if the minor had been kidnapped-- taken into the service against his own will. Assuredly, it will not be contended that a minor who has been kidnapped into the navy, in time of...