signed for indemnity to the United States. The decision of the supreme court, therefore, in that ease, seems to me decisive of every legal question involved in the present ease, an:d the writ must therefore be quashed.
(Oif'cu# (Jourt, D. Ma88achu8ett8.
March 12, 1889.)
ANDNAVy-MrLITARY TRIBUNALS-JURISDICTION-REVIEW ON HABEAS CORPUS.
On habea8 CO'l'pU8, the United States circuit court has jurisdiction,to'determine ,w,hether the military tribunal which tried the petitioner had jurisdiCtion; and the general finding_of the military court that the petitioner was in the military service of the United States when he committed the crime of desertion, for which he was tried, is no har to an inquiry into the military court's jurisdiction.
By Rev. St.U. S. § 1116, men must be between the ages of 16 a'nd 35 In orderto be proper subjects of military service. Petitioner was morethail 40 at the. timtl of enlistment. He did not enter into any service. or discharge any duties as a soldier. but left the recruiting office. or was. permitted t'O depart, a.nd was not in the actual control of the military officers till his arrest for desertion, Held, that the enlistment was void. as the petitioner was'not a proper subject of military service. and that the military tribunal had no jurisdiction. ..
Appeal from District Court. . '. . Petition of John Grimley for habeas corpus. Fl'om an order of the district judge discharging the prisoner, respondent appeals. Hm1:ry W. Putnam, for petitioner. Thcmws a. Talbot, Asst. U. S. Dist. Atty. COLT, J. The case In re John Grimley arises oil writ.of habeas corpus, and comes hereon an appeal from the district court. The first an,d mostiinportant issue in the case raises the question of the jurisdiction of the military tribunal who tried the petitioner. Section 1116 of the Revised Statutes requires that men must be between the ages of 16 and 35 in order to be proper subjects of military service. It turns dut in this case as a matter of fact that this petitioner Was InOre than old at the time of his alleged enlistment. · It is not daimedthat he en:tered iilto any service, or discharged any duties,asil. soldier. Whatever took place in the recruiting office at the time of his alleged eidistment, Grimley left the office, or was permitted to depart, and was not thereafter inthe actual control Of the military officers till his arrest ohthe charge 'Of desertion. This is not the case of a person who, after some form of enlistment, has entered upon actual service in the army, and has deL parted therefrom; The jurisdiction of the military tribunal in this case depends upon the validit.v of the enlistment alorie. Now, leannat but think that under these circumstances the fact that Grimley was over 40
IN .RE GR:MLEY.
years of age at the time or the alleged enlistment renders the (n'istment void. The military tribunal could not acquire jurisdiction over the petitioner for the purpose of punishing him for desertion, because he was not a proper subject for, and had not entered upon, actual military service. It is admitted by the counsel for the defendant that the civil courts have power to inquire into the jurisdiction of military tribunals, and that is a proposition dispute. The position taken by the respondent here is that, the military tribunal having found that the petitioner was in the military service of the United States, it is not open to this court to review that finding. It does not appear from the record that the military court entered specifically into the question of the age of the petitioner at the time of his enlistment. The court do not fiud as a fact ihat he was within the ages called for by the statute, but the district attorney says thlj-t thi.s may be inferred from the fact that he. was found by the military tribunal to be in the military service of the United States. It is further argued that this finding cannot be attackeg in a collateraL proceeding like the one before us, but that it can only be reviewed by the military tribunal itself, or by an appellate court, and that this pourt .does not occupy the position of an appellate court. In considering the. now raised, it must be borne in mind that we are dealing with a .question of jurisdiction. We are not denying the right of a military tribrinaJto punish a deserter, or to exercise the rightS and powers given to ,such tribunals under the sta.tute. It is not a question of mere irregularity ill the form 01' mode of' proceeding, which might properly be corby the court which committed such error, or by an appellate tribunal; but it is a question which j:!;oes to the very foundation of the pro.ceedings before themilitarytl'ibunal, for, if that tribunal did not have jurisdiction, then its acts are absolutely null and void, and they may be :attacked in any collateral suit. For example, the non-appointment in a .civil suit of a guardian ad litem for an infant would be irregular, but the irregularity .must be corrected by the court itself, or by an appellate .court.. Thejud,gment or decree in the case would not. be void, and could not be attacked in a collateral suit. On the other hand, if the minor had not been served with process, so as to bring him within the. jurisdiction of the. court, the whole proceeding would be absolutely void, and .could be attacked in any collateral action. Where the court has ·no jurisdiction over the person or subject-matter, its judgm611t is void everywhere. Where thejudgmerit is only voidable from irregularity,it is nec.essar9' to go to the court itselfwhere the action is pending, or to the appellate court, to have the error corrected. The general finding of the mili" that the petitioner was in the military service of the United 'states can be no bar to an inquiry into a jurisdictional fact. Otherwise the findings of military tribunals in respect to all jurisdictional questions would be a bar to any proceedings on the part of the civil court. It seemS to me that such a doctrine strikes at the foundation of. the right ,of the civil courts to inquire into the jurisdiction of military tribunals. 1t is saying, in effect, that all a military tribunal has to do to prevent