4. Where, however, a status actually forbids in prohibitory terms. enlistment under a certain age, then possibly a contract of enlistment might be null and void, although that is doubtful. The sections of the Selective Service Act here under consideration give no room for such question. Neither does the question submitted present an instance where a minor has enlisted without the written consent of his parents or guardians. Such statutes are designed not merely to protect the immature minor from improvident action, but also to preserve the parent's or guardian's right to his custody and service. And yet the parent or guardian may waive this right by silence or acquiescence in the minor continuing in the service and drawing pay from the Gov

ernment.

5. Recurring now to the contention of the Adjutant General of Arkansas that the registrant is entitled to a discharge pursuant to the provisions of section 61 of the Selective Draft Regulations, it is evident that this claim is based upon the assumption that the rules and regulations prescribed for the guidance of local and district boards are effective after such boards have fully performed the functions for which they were created-namely, the induction of men into the military service. It is provided in said section 61 for the cancellation of registration by persons not subject to registration. The section is: "Whenever a claim shall be made to a local board that through error or fraud, a person is registered who is not subject to registration the board shall require the person to submit his claim in writing, together with such proof as he may care to offer. The local board shall forward the claim and the proof with its finding of fact and recommendation to the adjutant general of the state, who shall examine the proof, and, if he is of the opinion that the person was not subject to registration, shall direct the local board to cancel the registration and amend its records accordingly."

Obviously the purpose of this section was to confer upon the adjutant generals of the several states intermediate appellate jurisdiction to pass upon the registration of those persons who, through mistake or fraud, had been registered and certified as eligible for military service. The regulation was doubtless intended to reduce the number of appeals which might be taken to the President or to grant relief in those cases in which the decision of the district board was final and no appeal would lie to the President. It will be observed that the section is applicable only to that class of cases where the registration rests upon fraud or error of such a character as to be akin to deceit or misrepresentation. It does not attempt to confer upon the adjutant general an unlimited power of review, but merely limits his revisory authority to a class of cases where it is assumed that the findings of the local board will be either clearly right or palpably wrong. It will be noted that the section relates only to questions of which the local board has jurisdiction, and that it does. not apply to industrial or agricultural claims of which the district board has sole and original jurisdiction.

To hold that this section has any application to a registrant who has been held for military service is to give the local boards power to dissolve the military status after it has been created according to

law. In other words, it would impute to the President the intention. of conferring upon such boards a judicial power which the courts have uniformly declared that they do not qua courts possess. To hold after a man has sworn to his own eligibility, and has been inducted into the military service of the United States, that a local board and the adjutant general of a state, each and all of them presumably laymen, were intended to have conferred upon them by section 61, judicial power superior to that which is exercised by the constitutionally created courts of the country is to offer a premium for desertion, to destroy all military discipline, and to make the Selective Service Act a farce.

6. I am, therefore, of the opinion that the application for discharge by a registrant after his induction into the military service upon the ground that he was under twenty-one at the time of his registration is without merit, and that such registrant, having been certified as being within the draft age, cannot be discharged from the military status thus imposed upon him. I am further of the opinion that section 61 of the Selective Service Regulations has no application to such a case, for the reason, among others, that the duties of the local board which this regulation is intended to prescribe are functus officio in so far as any such registrant is concerned after he has by the certificate of such board been inducted into the military service of the United States.

15.

[Signed] S. T. Ansell, Acting Judge Advocate General.

DISCHARGE OF SOLDIER CONVICTED OF FELONY

War Department, J. A. G. O., January 22, 1918.—To the Adjutant General.

1. The opinion of this office is desired upon the request and recommendation of the Commanding General, Northeastern Department, January 10, 1918, that the War Department "waive the violation of section 1118, Revised Statutes" in the enlistment in the military service of Private -, C. A. C., 8th Company, Portland, who previous to said enlistment had been convicted in the Circuit Court of Scott County, Missouri, of the offense of manslaughter-a felonyand sentenced to two years' confinement in the State penitentiary. It is stated in the papers that is a good soldier and his retention in the service is recommended by his company and fort commanders. Concerning this case, the Commanding General, Northeastern Department, says:

"At the time sentence was imposed, the defendant was paroled for the term of three years unless the parole should be sooner revoked. In August, 1917, nearly two years after his parole had expired, the court purported to revoke his parole, and made application for his surrender, all of which appears by certified copies from the clerk of the Circuit Court, Scott County, in possession of these headquarters. As of course an order revoking the parole two years after the

parole expired is on its face void, regardless of Private

state

ment that he performed all the conditions of parole, surrender of this soldier has been refused."

2. Section 1118, Revised Statutes (Comp. St. 1916, § 1886), provides as follows:

"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 convicted of a felony shall be enlisted or mustered into the military service."

Thus, it would appear that enlistment of was illegal in the sense of its being in contravention of a positive statute, the inhibitions of which the War Department is obviously without authority to waive. Enlistment in the Army is a contract, but it is one of those contracts which changes the status of the enlisted man; and it has been held by the Supreme Court of the United States, that in the. absence of insanity, idiocy and infancy or other causes which disable the party from changing his status, the disqualifications for enlistment enumerated in section 1118 are: "matters which do not inhere in the substance of the contract," and do not prevent a change of status, nor render the new relations assumed absolutely void. In re Grimley, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636. with reference to the disqualifications for enlistment in the Army set out in section 1118, this office has held:

66* * If one who is physically and mentally capable of rendering the service of a private soldier is employed as a soldier and renders that service, he is a soldier, even though there may be a law forbidding his enlistment in positive terms, unless that law declares him wholly incapable of making a contract of enlistment so that all such contracts entered into with him would be void absolutely. The law that merely provides that he shall not be enlisted would be violated by enlisting him, but that could not alter the fact that he had been enlisted and had become a soldier. * * * ""

The rule, therefore, would seem to be well settled that enlistment in the Army in violation of the provisions of section 1118, Revised Statutes the applicant being otherwise competent to enter into the enlistment contract--is not void but voidable only at the option of the United States. Thus, it appears all that is necessary to hold ** * * in the military service as a soldier is for the Government to elect not to avoid the contract because of the illegal enlistment, which may be done by refusing to discharge him from the service. until the expiration of his enlistment.

3. As pointed out by the Commanding General, Northeastern Department, the action of the court in revoking the parole, two years after the parole had expired, is clearly without legal effect, and * should be held to service under his enlistment.

* *

[Signed] S. T. Ansell, Acting Judge Advocate General.

16.

ENLISTMENT OF Minor undeR 18 WITHOUT PARENTS' CONSENT Enlistment I A 9 f.

Memorandum for the Judge Advocate General.

January 25, 1918.

1. (a) Should any distinction be made between the Army and Marine Corps in the treatment of minors, and,

(b) Under what circumstances should the Department refuse to grant an application for the discharge of a minor under eighteen years of age, who has enlisted without the written consent of his parent or guardian?

2. There is no statute which in terms applies to enlistments in the Marine Corps. Enlistments in the Marine Corps of the United States are not governed by statutes relating to enlistments in the Navy, but are governed by the statutory provisions relating to Army enlistments by virtue of paragraph 4151 of the Regulations prescribed by the Secretary of the Navy, which reads:

"The regulations for the recruiting service of the Army shall be applied to the recruiting service of the Marine Corps as far as practicable."

In McCalla v. Facer, 144 Fed. 61, 75 C. C. A. 219, it was held that the foregoing regulation served to make applicable to men eniisting in the Marine Corps the law governing enlistments in the Army.

3. Upon the question of the discharge of a minor from the military service who has enlisted without the written consent of his parent or guardian, the conclusions deducible from the decisions are:

(a) A minor over sixteen years of age is without power to avoid his enlistment. In re Morrissey, 137 Ü. S. 157, 11 Sup. Ct. 57, 34 L. Ed. 644; In re Grimley, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636; In re Wall (C. C.) 8 Fed. 85.

(b) To avoid the enlistment by parent or guardian application must be seasonably made. Ex parte Dostal (D. C.) 243 Fed. 664; Ex parte Rush (D. C.) 246 Fed. 172; Ex parte Dunakin (D. C.) 202 Fed. 209; Ex parte Hubbard (C. C.) 182 Fed. 76.

(c) If the application for his discharge is not made until the minor had attained the age of eighteen years, his enlistment is validated by his service after attaining such age. Ex parte Dostal, supra; Ex parte Hubbard, supra.

(d) If the minor is being held for an offense committed against military law, the jurisdiction of the military authorities in the premises cannot be ousted by the civil court. Ex parte Dostal, supra; Dillingham v. Booker, 163 Fed. 696, 90 C. C. A. 280, 18 L. R. A. (N. S.) 956, 16 Ann. Cas. 127; Ex parte Foley (D. C.) 243 Fed. 470; In re Miller, 114 Fed. 838, 52 C. C. A. 472; Ex parte Dunakin, supra.

17. GOVERNMENT LIABILITY FOR DAMAGE BY MILITARY OPERA

Claims XII.

153 (Misc. Div.)

TIONS

8th Ind.

War Department, J. A. G. O., February 5, 1918-To the Adjutant

General.

1. This is a letter by Mr. F. I. Allen, of Westfield, Massachusetts, for damages due to the occupation of his land as a camp ground by troops, including the removal of trees therefrom and the construction of roads and latrines on the property, during August, September and October, 1917. The amount of said claim is $60, which amount the claimant agrees to accept in full for all claims and demands against the United States for damages caused to his property. A board of officers convened for the purpose of investigating the said claim reported under date of October 3, 1917, as the conclusion of its findings, that the land used was necessary for the encampment of troops, that the trees cut were removed by order of the camp commander, and that the amount of the claim was reasonable and just.

2. It appears that this property was occupied without any formal. lease and that there was no agreement as to any payment for its use or for the timber that might be cut on the property. The Department. Commander, Northeastern Department, recommends that the amount of the claim, $60, be paid to the claimant from the appropriation "Claims for Damage to and Loss of Private Property" for which provision is made in the current appropriation for the support of the Army.

3. The officer in charge of the cantonment division, Quartermaster General's office, to whom the papers were referred, returns them approved for the expenditure of the amount named from the appropriation "Roads, Walks, Wharves and Drainage, 1918," and states that the amount involved will be charged to the general deficiency authorized by the Assistant Secretary of War, December 14, 1917.

4. The Department Commander, Northeastern Department, to whom the claim is returned, requests instructions as to whether in view of the existing emergency, any modification has been made of the specific prohibition against payment of damages of this class, contained in paragraph 153, Compilation of Orders (Cir. 22, A. G. O. 1910), except as prescribed therein and he invites attention to the specific provision in the said circular that in the absence of an appropriation for the purpose the Department is without authority to pay or settle such claims.

5. I do not know of any modification of the prohibition contained in this circular which appears to be based on the well settled rule that the administrative officers of the Government are without authority to settle claims for unliquidated damage. I am of the opinion, therefore, that the appropriation for "Roads, Walks, Wharves and Drainage, 1918," is not available for payment of the said damages.