In re Burns
| Decision Date | 24 May 1898 |
| Citation | 87 F. 796 |
| Parties | In re BURNS. |
| Court | U.S. District Court — District of Massachusetts |
Petition for Writ of Habeas Corpus.
Sewall C. Brackett, for petitioner.
Boyd B Jones, U.S. Atty.
This is a petition for a writ of habeas corpus, on which petition an order of notice has been issued. The facts are agreed as follows: Malachi G. Burns is the son of Malachi Burns, the petitioner. Malachi G.was born June 2, 1879, and on May 4 1898, enlisted and was mustered into the Massachusetts volunteer militia, Company C, 1st regiment, as a private. On May 9 1898, he was mustered into the service of the United States volunteer army. On the above dates he was a citizen of Massachusetts. The petitioner and his wife did not consent to the enlistment or mustering in of Malachi G. The respondent was colonel of the 1st regiment Massachusetts volunteer militia, and is now colonel of the regiment in the volunteer army of the United States into which Malachi G. was mustered. The petition is based upon Rev. St. Sec. 1117, which is as follows:
'No person under the age of twenty-one 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.'
The district attorney contends that this section is applicable only to an enlistment or mustering into the regular army of the United States, of which regular army it is admitted that Malachi G. is not a member. Section 1117, which is a re-enactment of the act of congress of May 15, 1872 (17 Stat. 117), must, however, be read in connection with the third article of war (Rev. St. Sec. 1342, art. 3) the material part of which is as follows:
'Every officer who knowingly enlists or musters into the military service any minor over the age of sixteen years without the written consent of his parents or guardians, or any minor under the age of sixteen years, * * * shall, upon conviction, be dismissed from the service, or suffer such other punishment as a court-martial may direct.'
This third article of war is based, not only upon the statute of 1872, above cited, but also upon Act July 4, 1864, Sec. 5, and Act March 3, 1865, Sec. 18 (13 Stat. 380, 490), the material parts of which are as follows:
The titles, terms, and occasions of the acts of 1864 and 1865 prove conclusively that their provisions just quoted apply to an enlistment or to a mustering of certain classes of minors into the volunteer army of the United States, as then composed, as well as to the enlistment of...
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Hoskins v. Dickerson
...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 (C.C.) 87 F. 796. conclusion is that the provision quoted applies to the enlistment of Otis Dickerson. As Otis Dickerson was over 16 years of age when ......
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Maclean v. Brodigan
... ... judgment, met by the fact that the term "military" ... is not limited in its application to the land forces, but ... applies equally to the naval branch of the nation's ... offensive and defensive machinery ... The ... Circuit Court of the United States, in Re Burns (C ... C.) 87 F. 796, regarded the term "military ... service," as used in the third Article of War, as ... applying as well to the volunteer army as to the regular army ... of the United States. A statute prohibiting the enlistment or ... mustering into the military service of any person ... ...
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Acker v. Bell
...time above all others when it would be most embarrassing to the government,' is fully answered by District Judge Lowell in the case of In re Burns, supra, as follows: it be said that this construction of the statutes which permits the parents or guardians of a minor to prevent his enlistmen......
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United States v. Burns
...Atty. Sewall C. Brackett, for appellee. Before PUTNAM, Circuit Judge, and WEBB and BROWN, District Judges. Appeal dismissed by consent. See 87 F. 796 ...