IN RE HEARN.
I'll. re HEARN.
(Di8f!riet Oourt, No D. Ohio. E. D.
Februarv Term, 1887.)
MINORS-ENLISTMENT IN UNITED STATES ARMY-CONSENT OF PARENTS.
Rev. St. U. S. §§ 1116, 1117, authorizes the enlistment in the army of the United States of men above the age of 16 years, and provides that no person under the of 21 years shall be mustered into military service without the written consent ('If his parents or guardians. Held, that a contract of enlistment entered into by a minor, over 16 years of age, without the consent or knowledge of his parents, could not be avoided ,by the minor himself. but could only be avoided by the parents, who might claim the right to his custody before majority.
Habea8 Corpus. Jay L.,Athey, for complainant. Get/t. Ed. S. Meyer, for respondent.
WELKER, J. The said l\L Seward Hearn was hom on the twentyfourth day a! September, 18,62,and became 21 years old on the twentyfQurth day of September, 1883. Onthe first day of August, :1882, he enlisted in the service of the United States asa private soldier, then being over 19 years of age. He remained in the service until the summer of 1883, when he left the service without discharge, then lacking a few months of being 21 years of age. He is now in custody of the military officers for deflertion from the army. At the time he enlisted he had a father and mother living, whQ were entitled to his services during minority, and who did not consent to his enlistment, either in writing or oth" erwise, and had no knowledge of said enlistment until after he had left the recruiting station for service. No efforts were made by the parents to procure his release on the ground of minority during such minority, his father stating at the hearing he thought it best for him, after he learned of the enlistment, to allow him to remain in the army. The relator is now over 24 years of age, and makes this application for discharge for himself. Statutes of the United States provides that Section 1116 of the "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 en listing." Section 1117 provides that "no person under the age oftwen ty-one years shall be t>nlisted or mustered into the military service of thl: United States without the written consent of his parents or guardians' provided, that such minor has such parents or guardians entitled 't9 'hiB custody and control." Section 1118 provides that" no minor under thl: age of sixteen years * * * shall be enlisted or mustered into the military service." The relator claims that under the provisions of the statute his enlistment, without the consent of his parents, was voidable by him, and having left the service before he arrivt>d at the age of 21, he therehy elected to avoid the enlistment, and cannot now be held to service. This claim
raises the question as to the construction of these provisions of the statutes. Usually, a contract made by a minor may be avoided at his election, provided it is done before ratifying it after he arrived at age. This, even at coniman law" he could not do When the contract was for his benefit. ·. are to be construed It is clear that congress provid¢d by. these sections that a minor under 16 years of age cannot be enlisted, done, it would be absolutely void,and he could not be held to service; but His also clear that if he be 16 years old he can legally' enlist. . Congr.ess, having so authOl'ized, makes such enlistment legal,andthereby confers capacity on such minor to make the contract of enlistment. If the relator was by the law made competent to enter into this contract when over 16 years of age, he cannot for himself avoid it. Section 1117, requiring the written consent of parents or guardians, when under 21 years of age, was for the benefit of such. parents, who might assert their right to his custody befote majority, and does not affect the capacity of the minor to bind himself. It can hardly be maintained that congress intended to authorize a minor 16 years of age to enlist in the military servioe, and, after having so enlisted, to desert the service at any time before arriving of age, at his will and pleasure. Under section 1117, he could only be taken from the service on the application of the parents or guardian entitled to his custody, to either the secretary war or through the instrumentality of the courts. In this construction of the statute lam borne out by several decisions of the courts. InreDavison, 21 Fed. Rep. 618;' U. S; v. Gibbon, 24 Fed. Rep. 135; The only case to the contrary cited ,is U. S. v. Hanchett, 18 Fed. Rep. 26:, where the judge did discharge the relator under his own appliilll,tionbefore he bfJCame 21 years of age. " The prayer of the petition is therefore denied, and he is remanded to the custody of the
REIcHERT and others. GLOVER and others.
(Gu'cuit Goure.D. Galifornia. September 5. 1887.)
CONSPIR:4.0,"""" AGAINST UN!TBDS"'ATBS - WRATCONBTITUTBS....,. FRAUDULENT CLAI:M;S. j.. '., . .
Section5'loS. St." so far as it declares that every person who enters into any agreement,dombinatioil. or ·conspiracy to defraud the government of the United States. or anv department or officer thereof, by obtaining. or aiding to obtain, the l'asment or allowance of ans false or fraudnlentclaim, shall be punished WIthout requiring' any .act in of the conspiracy, is modified by section 5440, Rev. St.· as amended by the act of March 17, 1878. which declares that if two or more persons conspire either to commit any ·ofthe United States. orto defraud tJ;te l!nited States in any mannfJl'i·or,/ora'nY purpose, and oile or more ofsnch partIes do any act to effect the