Hoskins v. Dickerson

• Decision Date: 05 February 1917
• Docket Number: 3022.
• Citation: 239 F. 275
• Parties: HOSKINS v. DICKERSON.
• Court: U.S. Court of Appeals — Fifth Circuit

239 F. 275

HOSKINS v. DICKERSON.

No. 3022.

United States Court of Appeals, Fifth Circuit.

February 5, 1917

J. W George, U.S. Atty., and J. P. Alexander, Asst. U.S. Atty both of Jackson, Miss., and Maj. S. T. Ansell, Judge Advocate, War Department, of Washington, D.C., for appellant.

William H. Watkins, of Jackson, Miss., for appellee.

Before PARDEE and WALKER, Circuit Judges, and GRUBB, District Judge.

WALKER Circuit Judge.

On the 27th day of June, 1916, Otis Dickerson enlisted in the National Guard of the United States and of the state of Mississippi, and took the oath prescribed by section 70 of the National Defense Act of June 3, 1916. At that time he was under the age of 18 years, having been born on October 16 1898. He had parents living who did not consent to his enlistment. He was serving as a member of the regimental band of the First Mississippi Regiment of the United States Army, which was encamped near Jackson, Miss., when his father, the appellee, filed a petition for the writ of habeas corpus against Col. George C.. Hoskins, the commanding officer of that regiment, and E. C. Scales, the Adjutant General of the State of Mississippi. In the return to the writ issued on that petition, the enlistment of Otis Dickerson was alleged, and it was set up that he was held as a soldier under the federalization of the State Militia to answer the call of the President of the United States, and that formal charges for the offenses of fraudulent enlistment and receiving allowances and rations had been preferred against him, copies of which were made exhibits to the return, and that he would be brought to trial thereon as soon as practicable before a court-martial which had been ordered to be convened. The charges mentioned in the return were preferred after the service of the writ of habeas corpus. The appeals is from the judgment of the court, which recited 'that petitioner, J. H. Dickerson, is entitled to the immediate possession of his son, Otis Dickerson, now in the custody of respondents,' and ordered the respondents 'to immediately deliver said Otis Dickerson to petitioner.'

Section 27 of the National Defense Act of June 3, 1916, contains the following proviso:

'No person under the 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.'

This provision is a copy of section 1117 of the Revised Statutes (Comp. St. 1913, Sec. 1885), except that the word 'eighteen' is substituted for the word 'twenty-one' where the latter appeared in the section mentioned. If the provision quoted is applicable to the enlistment of Otis Dickerson, that enlistment was voidable at the instance of his father. In re Grimley, 137 U.S. 147, 11 Sup.Ct. 54, 34 L.Ed. 636; In re Morrissey, 137 U.S. 157, 11 Sup.Ct. 57, 34 L.Ed. 644; In re Miller, 114 F. 838, 52 C.C.A. 472; United States v. Reaves, 126 F. 127, 60 C.C.A. 675.

It has been insisted in argument that the provision applies only to the Regular Army, and not to an enlistment in the National Guard called into the service of the United States. Stress is laid upon the fact that the provision is found in the part of the act which deals with the Regular Army. We are not impressed by this suggestion. It is not uncommon to find in an act of Congress a provision not germane to the subject dealt with in other provisions with which it is associated. The fact that a provision is so placed cannot properly be given the effect of depriving it of the meaning which its words express. It cannot be supposed that, in an act which defined and specifically dealt with the several branches of service constituting the Army of the United States (sections 1, 3, 58, 70 of the act), use would have been made of the expression, 'enlisted or mustered into the military service of the United States,' if it had been intended that the provision containing that expression should apply to only one branch of that service. The words used are appropriate to embrace the methods by which one may enter the military service of the United States, whether as a member of the Regular Army or as a member of the National Guard while in the service of the United States. In re Burns (...