The Montgomery advertiser., 1903-03-01

this right of the father in abeyance. This case differs from ex-parte Miller, IA Fed Rep. 839 in several material aspects In Miller's case formal charges and specifications had ben preferred. The prisoner there, was in the custody of the military authorities and a court mar tial had ben ordered to try him for deser- ton and fraudulent enlistment. Here, no formal charges with specifications have been preferred. No naval court has been organized for the trial of the prisoner, who was taken from the custody of the father and detained by the chief of police, under authority of the Secre- tary of the Navy, to hold him as de- serter, The court in Millers case, evil dently attached force to the considera- ton that the parent. in that case. had taken mo steps to avoid the enlistment, before the soldiers arrest for desertion." In this case, 1t aff1rmatively appears that the minor disappeared. and was gone for a long time from home. without the parents knowing his whereabouts or why he left, and the enlistment was actually discovered only on his return to his father, when the minor was almost im- mediately arrested by the chief of police. and the father immediately sued out this writ There are authorities, the sound- ness of which is disputed by other cases, that a civil court will discharge prisoner held in civil custody, though at the in stance of military authorities where formal charges and specifications have not. ben preferred, and a court martial has not been organized to try him, In cases like this; when the civil court would not interfere in like case, If such charges and specifications had been pre- ferred. and the prisoner were held by the
 
 fore A court martial to be convened for that purpose. The Court of Appeals in Miller's case, say: The question tD be decided, Is whether the court martial has Jurisdiction to try the prisoner on the charges preferred against him.
 If seems to this court, case Is pre- scented. in which, to quote the language of the Supreme Court of Pennsylvania, | in Commonwealth V. Fox, Pa. St. Rep. 339. We must take the law as we ma | if. and regard the claim which the law | of God, of nature, of the State, ana or the Tinted States, gives the father to the services of his child" The judgment is | that the prisoner is illegally detained by | the chief of police, and should be awarded | to the custody and control of his father | Counsel for petitioner may prepare the | proper order.
 After the foregoing opinion was read, | the District Attorney, in open court maue | known that on February 12, 1903, since the | submission of the case on demurrer, the l Secretary of the Navy had preferred formal charges against the minor for | assertion and fraudulent enlistment | which had been duly served upon the minor. The parties in open court agreed that the new matter be treated as having been embodied in the return. and the pe- | mt eE. 1 As the return is made to the writ ana not to the petition. and by public of- ficer. who has no interest in the ultimate | custody. and is not presumed to nave | any knowledge of the facts which deter mine 1t, and the only duty, enjoined on him by the statute is "tb certify the true cause of the detention" 1t seems doubtful on principle. though held In some cases, whether on demurrer to the return. 1t is to be taken as an admission | of the truth of the statements or the petition. As the parties have agreed that inc facts set forth in the petition are true. the court has itreated the return. as an admission on demurrer of the averments of the petition, without in- ouirinr whether that would be the prop | or ruling in the absence of the agree n,ent. Sorti V. Massachusetts, 1S3 U. 8. 13S.
 The military or naval offense which Congress creates under the act of March S. 1853, consists, not in the evil enhst- ment but in the receiving of pay and allowances after making such enlistment Congress was not Ignorant of what ev- erybody else knew, that the drawing oi subsistence in kind, or commuted. IS the immediate and inevitable result of every enlistment, whether the recruit be
 n1.@ lFrn a minor could not ordinarily be enlisted against the wishes of a parent, unless the minor made false representations, deceiving the recruiting officer;'and that m enlistment thus effected would b' fraudulent.
 The statute under which these charges are made, makes no regulation whatever of enlistments. It does not In any man. ner affect the matter. It leaves the exist ing laws absolutely untouched. There Is no express repeal of them. By every known rule of construction. then, the act prohibiting the enlistment of minors. and the evils it had in view to suppress. must be considere dalong with the act of 1883 in determining whether any new or diff ferent status was intended to be impress ed upon the minor, as against the right of the non-assenting parent. because the minor received pay or allowances. after his enlistment.
 Taking the two acts together. as we must, it is not possible, by any legiu- mate construction. to put Congress Tn the attitude of having the purpose, In its legislation on these subjects, to forbid the enlistment of minors, and thus pre- vent their acquiring a naval status. which would forfeit the right of the non-assent- ing parent to their custody; and yet har- boring. at the very same time. the dis cnrdant purpose. If the minor added to his insubordination in enlisting. the of fense afterwards of receiving rations, to impress upon the minor, co instant, a legal naval or military status, against | the non-assenting parent. which forfeits | the parent's otherwise unimpeachable right to the custody and control of the | minor, which Congress by it's prohibition intended to save to the parent. Rodgers V. The United states, 13 U. s. s9. Un- der such a construction. father arriv- ing at the recruiting station an hour af- ter his dsobedient boy had. without his consent. enlisted and drawn rations could | not reclaim the custody of the minor, as | of right: if, in that hour the boy com | mitted any breach of discipline in the | service. upon which he had no right to | enter at all against the parents consent. To construc the law as giving a mili- tarv status, at any time, to the minor enlisting without consent, as against the father. would aunihilate the purposes and intention of the prohibition. It would l .Aa oc4s ,f Int r1ara cover