37 F. 327 -

IN BE CHAPMAN. ' "

327

the treasury depal'tment ful' relief? Whateverdoubt may have existed on this subject,it has been removed by the act of 1874, (18 U.S. St. at Large, 189,; which niakes an actual intention to an essential question in SUlts to enforce forfeiture under the custom laws. Sinn v. U. S., 14 Elatehf. 550; Lewey v. U. S., 15 Blatchf. 1. The question of fact which I must pass upon is "whether the alleged acts were-done with an actual intention to defraud the United States." 1 Supp. Rev. St. p. 80, § 16; The Purism-rna Concepcion, 24 Fed. Rep. 358. This means an actual intent on the part of the owner; or of some person acting under' his authority, or being, his agent, or under whom he derives title." U. S. v. Diamonds, 30 Fed. Rep. 364. In this case the master and stevedore of the vessel had informed the claimant that all the cargo was discharged. Without the knowledge of the claimant, they concealed 208 bags of kainitin the ship. They left claimant's wharf and service, and then clandestinely furtively sent the kainit ashore. the circumstances stated, the claimants cannot be charged with the, consequences of this act, so as to forfeit their property; But the action of the collector in seizing this kainit was ,founded on probable cause. This 4Ction also brought to the' knowledge of the true owner the .fact that his property had been stOlen, and preserved it for him. ,While, the delay in filing the information ami libel prevents me from charging, thekainit with the heavy bill for storage, it should pay the items, of. labor, $2.40, and of drayage, $10.50. So, also, the filing of the information discovered the facts which exonerate the claimant. Upon 'payment of these and of the costs of court, let the stipulation heretofore' entered into by claimant be released. ' ,

In re

CHAPMAN.

(OWeuit (Jouf't, N. D. G8Q1'gia.

January 28,1889.'

MKY

Under Rev.St.U" S;§1117. providing that "no person under tbeage of'l , years, shaH be enl,iste,d ,or, mustered iuto the military s,e,rVIC,e of the 'Unite,d States without the written consent of his parent/il or guarqians. provi$dJhat such minor has such parents or guardians entitled to his custody and control," . the enlistment of a minor without the written consent 0.1 hispareDt , ian. is invaW;l, and of no legal effect. and the invalidity may be claimed by . the minor himself, or after attaining majority.' ·. '. ,
,$'

AND NAvy-ENLISTMENT-MINORS.

Appliqation for Habeas Coryus. On appeal froOl,d,istrtct c,our,t,,; ,', by J. Q. Chapman for a writ ,ofha.oeaBCoryus·. ,;qIi thQ hearing is the district court, Judge NEWMAN deUv:eredthe following opinion:' '''It appears itlthis case that the petitioner, J. C. Chapman, etilillted i,n .the twenty years "a<nd eight' trlbnths United Statesarm:fat Atllinta:, old. He is now nearly twenty-three years of age. Some'.live 'or si*"'eeks
J

828

J'EPERAL REPORTER.

his enlistment he from the army, and has since been at large. He had been arrested as a deserter, and was about to be conveyed to Fort Barancas, Fla., from which place he deserted. 'fo prevent hIS removal, this writ WaS taken out. His father did not consent to his enlistment; on the contrary, when written to about it by some officer, he objected. thotlgh he took no f'.teps at that time to prevent the enlistment. The father subsequently arranged to make some application at the war department for his son's discharge, but, while engaged in correspondence with a member of congress on t,he sUbject, his son came home. The question presented is whether or not soldier.can be diseharged on his own application, because of his enlistment before he was twenty-one years of age. Sections 1116, 1117, and 1118 of the Hevised Statutes are as follows: ·::lec. 1116. Recruits enlisting in the army must be effective and able-bodied men, and between the ages of 16 and 35 years, at the time of their enlistment. This limitation as to age shall not apply to soldiers Sec. 1117. No person under the ag.. of21 years shall be enlisted or mustered in the m,litary 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. Sec. IH!:!. No minor under the age of sixteen years, no insane or intoxicated person. no deserter from the military service of the United States, and no person who has been convictt'd of any criminal offense (a felony) shall be enlisted or mustered into the military service,' From these sections it will be seenFirst, that effective and able-bodied men between the ages of sixteen and thirty-five may enlist in the army of the United States, except that no felon, insane or intoxicated person can be enlisted; second. the enlistment of a minor under sixteen years of age would be absolutely void; third, persons betwt'en the ages of sixteen and twenty-one may be lawfully enlisted, except that, if he has parents 91' glllLl'diausentitled t.ohis control, their written consent is lJeceBsary. This case comes under the last head, and the contention by the counsel for the petitioner here is that the absence of such written consent on the part of father renders the enlistment absolntelyvoid, and that it will be su held at any time. I do not think so. I think the enlistment of men from sixteen to twenty-one is valid, where it was free and voluntary, as in this case, as to the enlisted ptirsoh. The parents or guardians would have the right. of course, dnring the minority of the enlisted person, to make the question of the validity of the enlistment. 'fhis right on their part would cease when the enlisted person became twen'ty-one years of age. I am inclined to think that the soldier could not make the question at any time, and I am clear that he Cllnnot make it after he has attained. the age of twenty-one years. The contract of enlistment between the ages named is not void, but voidable, and that only at the election of the parents or guardians. ,This question·was before Judge WALLAOE, of the circuit court Of the United States for the Southern district of New York, in the case In re Davidson, 21 Fed· .Rep.6Ut His conclusion is: ·The reasonalJIe conclusion warranted by these (the sections quoted above] would seem to be that the contract of enlistment of a minor under sixteen years of age is void; bu t that, if he is over that age, it is valid, in the abllence of fraud or duress as to him; bnt during his minority is invalid at the election of his parents or guardians.' His further reasoning and conclusions on the subject are, in my opinion, correct, and controlling here. Something was said in evidence by the pt'titioner as to having been made to him about a school in the army. and that he liid not see any 8chool.This was not urged in argument, but I allude to it simply to say that even upon this ex parte evidence it was insufficient to make a case of fmud tojustify the dis<;hal'ge. of the petitioner. My conclusion is be muat beJ;emanded. to the custody of the officer who holds hiinon beIlalf Qfthe authorities."

IN RE CHAPMAN.

829

Relator appeals. ThO'mas W. Birney, for appellant. Asat. U. S. Dist. Atty. PhiUips.
PARDEE, J. The petitioner, J. C. Chapman, enlisted in the States army at Atlanta, Ga., in 1886, when he was a minor of the age of 20 years and 8 months. At the time he had a father living, entitled It to his custody and control, who did not consent to the does not appear whether Chapman represented himself at the time of enlistment as a major, or as a minor without parents or guardian, butthe inference.is that he did one or the other, as he says he signed all the papers presented to him; and it is difficult to believe, in the absence of evidence to that effect; that the recruiting officer would enlist an admitted minor without inquiry as to his parents or guardian. Soon after ment-about two months-Chapman deserted. The desertion until December last, when he was arrested in Atlanta. Reis now Ilbout 23 years of age, and himself sues out the writ of habeas on the . ground that his enlistment was illegal and void, because without the consent ofhis father, and that therefore he cannot be heMin custody as a deserter. The stlltutes of the United States governing the question of Chapman's enlistment are found in section 1117 of the Revised Statutes, to-wit: "No person under the age of 21 years shall be enlisted or IJiustered 'into the military service of the United states wit1).Out tbewritten consent of his parents or guardians, provided that such minor has such parents or guardians entitled to his custody and control." -And in the third article of war, found in section 1342, Rev. St.: . "Every ·ollicer who knOWingly enlists or musters into the military serviCe any minor over the age of 16 years, without the written consent of his parents or guardians, or any minor under the age of 16 years, 01' any insane or intoxicated persons, or any deserter flOm the military or naval sE'rvice of the United States, or any person who has been eonvicted of any infamous crimi nal offense, shall, upon conviction, be dismissed from the service, or sufferslIcb other punishment as a court-\llal'tial ma,y direct." By these statutes it appears that the enlistment of a minor into the army of the United States, withoi.lt the written consent of parerits or guardians, if he have any entitled to his control, is not only prohibited, but, when knowingWdone by an officer, is an offense punishable with a heavy penalty. In the many adjudicated cases where the.effect ofa minor's enlistment into the army or navy without the consent of the patents or guardians has been considered, tbere is unanimity inholding that ,where the statute requires such consent the enlistment without is illegal and invalid; but there has been some diversity of opinion as to whether the minor himself, so enlisted, could claim his release, before or after coming of age; some going to the extent that the enlistment, although illegal, 1Vas not absolutely void, but could by rati.fication! either by the minor continuing in the service, receiving pay ,and ratlQns, after he became of age, or by the cOllsentof the parents·· or

guardian, given after the enlistment. See State v. Dimick, 12 N. H,194; Com. v. Gushing, 11 Mass. 67; {Ia,rrisorr; ld. 63; Com. v. Fox, 7 Pa. St. 336; Com. v. Downes, 24 2 Low. 270; Shorner's Case, 1 Car. Law Repos. 55; re Davidson, 21 Fed. Rep. 618; 4.:0p. Atty ·. Gen. 350;,5 Op. Atty. GeI,l,.313; Com,.,v. Camac, (Menges' Case,) 1 Sergo '& 8,7'; v. Seymotfr,' 3 OUff. 4.39. In the case in band 'there if)lqquesti9n of for the Ininor deserted before · majQrity, andt'he father did not consent, but actively opposed enlist, ment; and the, question rather is whether Ohapman himself can,now take advantage ofthe illegality. Th,e district judge, in deciding the case, folof the circuit conrtin the Case of Datoidson, supra, in lowed the which Judge WALLACE, circt1,it judge, the position that in contracts ofenHstment the' mi,nor over 16, yearsi!;> cm;npetent. to contract, and that the provision in section 1'117, tequiring the written consent of parents or g\lardians, was not for the benefit of the minor,' but rather for the benefit of the parentS Or .guardian 'entitled to the custody and control of · the minor, and to say: " ", "'rhe provisioll should not be extended to prote<,lt a party competent to contract against of his deliberate agreement, or of his own misrepresentations', unless the' language plainly requires sllch a construction. · The language is satisfied by a cOnstl'uction which permits the parents or guard,1ans, who are entitled to, the services' and custody of the minor, to intervene and assert their rights, if their consent to his enlistment has not bl'en obSeveral adj Rfe to lilffect that section 1117, or laws of pf similar of enlistment should · hel9 invalid on the'I\Pplication ofthe parents orgllardian of the minor. Obm. v. Blake, 8 Phila: 523; Tume1' V. ,Witgn,t, 5j,>hili\. Henderlion V. Wright, Id. 299; Seavey v. Seymour, 3 439. 'None, however, are cited by counsel, ()r have lDet thecattentionof the conrt, in.whIch it has been de· cided .thfl,t the minor, if OVer 16yellrs of age, cana$serl; the invalidity of his of v. Oamac, 1 Sergo &; R.87, ari.'1ing under the case wall simact of }farch ll>, 1802, is directly in point. The section IH7, and the court held the minor bound by ilar fn.its ,his contract: that the parent al.one could assert its invalidity, and therefore to dischllrge the mi\wr upon habeas corpUS,at his own In 4 Op. Atty. Gen., sitpra,Mr.Nelson,in responding to a communiof the secretary oql;J.e p.av)!', say,s: "An infant is not bOTlndby thl'! contract of enlistment after he attains his 'fuUage, 'He, maY,repudiate it. The contract with regard to him is voidable, mayor may not be carried into full execution, at his election. When made, he had no will in legal contemplation. It was made, moreover, with :the O(}DSent of his guardian, who had a right to enter into it for his benefit ; ,but such authority ceased with the expiration of his minority, and he was fQli,y competent: to /!.ffirm or disaffirm the contract made on his behalf. " In 5' Op. Atty. Gen.,8Upra, Mr. Crittenden, in response to inquiries 'from the secretary ,of wa;r with regard to the secretary's duty in discharging minors enlisted without the consent of the parent or guardian, ,says: ' · ;!'That· the!enllstment'dNhe soldier was withOut the consent of his parent or gUllrdian is the cause stated in the statute for the discharge of the minor. or guardiap mUil,t D?ake application, and LIllI'nish the proof as to

In

tl:)e' age of'tbe:s61dier. :attbe time ot 'the enlistment. : If ,tbep'erl!'"On; was a min or at .the tin;le ofenl,istment, has since attained td 'his' futl age' Of 21 dis,,:, years, the Tl he is capable tocboose and act for him!,!!!lf.. '.Iioapp)y charge upon evidence that ,enlJstment was during his minority> .Mld ,upon. the allegation that sllch enlistment was without consent o( ijis,parent or 'guardian, he proving,the affirmative of infa,ncy at the time ment, arid that his father was then living, or that he then had a gilardiail, the burden of proof that the parent or guardian had consented t,1? ,such enlistment upon the government." . ,

In Re McNulty, supra, Judge LoWELL held that the minor himsel£ dur-' ing minority might claim the invalidity of the contract. The Case oj Menges, supra, relied upon by JUdge WALJ,ACE as a case in point, turne<i upon the question whether the parent's ratification, five or six days after, validated the enlistment. In giving his opinion, Chief Justice TrWR': MAN, in speaking of the required consent, says: "Before such consent given, the minor or the parent may demand his discharge, and the law forbids the ,holding of him." I have l'xamined all the. cases cited,and considered the reasoning of those judges holding that tlieenlistmeht' binds the minor' before and after attaining majority, and am to' agree thereto. It is a well-settled doctrine of every system. of jUrisprudence that whatever is done in contravention of prohibitory law is null and void. I think that, in accordance with this principle, the enlistment ofa minor without the written consent of his parent or gqardian, if he has one entitled to his services anti control, is invalid,linthif 1'10 legal effect, and, on principle and authority, that the inv3lidity'may be claimed. by the minor himself before or after attainioK majority, or by any person entitled to his control or services. A judgmentwill be entered in this case; reversing the judgment of the district court, and judging the writ of habeas corpus absolutejand directing the petitioner's discharge from custody,and the cancellation of the bonds given fQr .his. appearance pending the appeal., Costs j udgnient.· ,

UNITED STATES ?J. GLEASON.

(Di8triet (Jourt. D: South

l!lvmENCE-PRooi!o01l'HANDWRITINci-WElGHT.

15, 1889.)

The value to be given to the opinion of a witness ae to the anthorship of handwriting is to be determined by the opportunity and eircumstaneesnlider which he'hall,'s.cqllired;,his knowledge. If he iean illiterate man, or one whose business seldombringsbim into cootactwith:w.ritiog, his opinio'n ie entitilld ,to-!llUl;lh less weight than if be were an educated man, accustomed to correepoI\deDce, and to seeing, people write. '

Indictment of Dennis F. Gleason for sending postal-cards through the mail. . L. F. YOU7Mn8,;U. B. Diat.,Atty. Bui8t &: Buist, for defendfUlt.

and threatenipg . ,. " , .' "',, ',',.: