United States ex rel. Laikund v. Williford

• Decision Date: 12 January 1915
• Docket Number: 169.
• Citation: 220 F. 291
• Parties: UNITED STATES ex rel. LAIKUND v. WILLIFORD.
• Court: U.S. Court of Appeals — Second Circuit

220 F. 291

UNITED STATES ex rel. LAIKUND v. WILLIFORD.

No. 169.

United States Court of Appeals, Second Circuit.

January 12, 1915

G. C Young, of New York City, for appellant.

Earl B Barnes, Asst. U.S. Atty., of New York City, for appellee.

Before LACOMBE, WARD, and ROGERS, Circuit Judges.

WARD Circuit Judge.

March 7, 1914, Nathan Love enlisted in the United States army stating that he was 21 years and 5 months of age, whereas in fact he was 2 years younger, and thereupon received the clothing and allowance that are regularly issued to enlisted soldiers. August 29th he made written application for his discharge, supported by the affidavits of his mother and grandmother, to the effect that he was when enlisted and still was an infant, that his mother had never given consent to his enlistment, and that his services were necessary to the support of his grandmother, who had brought him up, was not able to support herself, and was without support; her daughter having married again. This application was denied on the ground that the regulations of the War Department restricted the privilege of purchasing a discharge to soldiers who have served at least one year prior to the application.

October 5th a writ of habeas corpus at the relation of Love's mother was served upon the military authorities, and upon the same day, but after the service of the writ, Love was arrested and confined upon the charge of having fraudulently enlisted in violation of the sixty-second article of war. Judge Mayer dismissed the writ and remanded Love, feeling bound by the decision of Judge Holt in Ex parte Lewkowitz, 163 F. 646. We think he was clearly right in following this decision. There have been many irreconcilable cases in the lower courts in habeas corpus proceedings taken to obtain the discharge of minors who have enlisted in the United States army or navy. Sections 1116 and 1117, Rev. St. U.S. (Comp. St. 1913, Secs. 1884, 1885), read as follows:

'Sec. 1116. Recruits, enlisting in the army, must be effective and able-bodied men, and between the ages of sixteen and thirty-five years, at the time of their enlistment. This limitation as to age shall not apply to soldiers reenlisting.

'Sec. 1117. 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.'

Some courts have held that such enlistments were wholly void, and that the minors never became soldiers or sailors, or subject to punishment for military offenses. Other courts have held that they were voidable at the option of the minor, and still others that they were only voidable upon the application of the parent or guardian. The Supreme Court, however, set most of these questions at rest in the case of In re Morrissey, 137 U.S. 157, 11 Sup.Ct. 57, 34 L.Ed. 644, holding that the enlistment was a good contract so far as the minor is concerned, which changed his status from that of a civilian to that of a soldier or sailor. A parent or guardian, however, who had not consented in writing to such enlistment, could reclaim custody of the minor.

The only question, therefore, is whether the fact of Love's arrest and confinement, after the writ was served, on the charge of his original fraudulent enlistment, is a good answer to the writ. Some c...