pressed a desire to enlist. He underwent a physical examination. He took the oath of allegiance before the recruiting officer, signed the clothing rolls, and was placed in charge of the sergeant. The latter took him to the clothing-room, and selected for his uniform a cap, trousers, blanket, shirt, and pair of stockings, and laid them before him. He put none of these articles on except the cap, and that in a few minutes he took off. He then asked permission to go away and see his friends, and the sergeant told him to go, and be back on Monday. He went away in his citizen's clothes, returned to his mother's house and told her what he had done. She was very much grieved, and after some conversation with him went to the recruiting office, and finding three men there, told them her errand, and was advised substantially that Grimley need not come back, and might go to work. Who these men were is not disclosed. On the strength of that he did not return, but went off and engaged in service as a coachman. He was arrested as a deserter on May 16, 1888, brought before a court-martial, and found guilty, as heretofore stated. The oath of allegiance which he took was as follows: "The United States of America. State of Massachusetts, city or town of Boston-ss.: I, John Grimley, born in Armagh, in the state of Ireland, aged twenty-eight years and months,

and by occupation a groom, do hereby acknowledge to have voluntarily enlisted, this eighteenth day of February, 1888, as a soldier in the army of the United States of America, for the period of five years, unless sooner discharged by proper authority; and do also agree to accept from the United States such bounty, pay, rations, and clothing as are or may be established by law. And I do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America, and that I will serve them honestly and faithfully against all their enemies whomsoever; and that I will obey the orders of the president of the United States, and the orders of the officers appointed over me, according to the rules and articles of war. JOHN GRIMLEY. [Seal.] Subscribed and duly sworn to before me this 18th day of February, A. D. 1888. JAMES MILLER, Captain 2d Infantry, Recruiting Officer." The question presented is whether the peti- | tioner had, in fact, enlisted and become a soldier. It will be noticed that in this oath of allegiance is an acknowledgment that he had enlisted, and that it was not an agreement to enlist. In this respect this case differs from that of Tyler v. Pomeroy, 8 Allen, 480, in which the plaintiff, with others, had signed a paper by which, in terms, they agreed to serve for a period of three years "from the date of our being mustered into the United States' service. In that case Mr. Justice GRAY, then a member of the supreme court of Massachusetts, in an opinion reviewing all the authorities in England and in this country, drew a distinction between an agreement to enlist, which, if broken, simply gives a right of action for damages, and an enlistment, which changes the status of the party, transfers him from civil to

99

military life, and renders him amenable to military jurisdiction. Section 1342 of the Revised Statutes provides that the army of the United States shall be governed by certain rules and articles thereafter stated. Article 2 provides: "These rules and articles shall be read to every enlisted man at the time of, or within six days after, his enlistment, and he shall thereupon take an oath or affirmation," etc. Obviously, the oath is the final act in the matter of enlistment. Article 47, respecting desertion, reads: "Any officer or soldier who, having received pay, or having been duly enlisted in the service of the United States, deserts the same," etc. By this, either receipt of pay or enlistment determines the status; and after enlistment the party becomes amenable to military jurisdiction, although no actual service may have been rendered and no pay received.

It is insisted that the articles of war were not read to him; but that is not a prerequisite. "Within six days after" is the statute. The reading of the 128 articles, many of which do not concern the duty of a soldier, is not essential to his enlistment. Paragraph No. 766 of the army regulations of 1881 is as follows: "The forms of declaration, and of consent in the case of a minor, having been signed and witnessed, the recruit will then be duly examined by the recruiting officer and surgeon, if one be present, and, if accepted, the 47th and 103d articles of war will be read to him, after which he will be allowed time to consider the subject until his mind appears to be fully made up before the oath is administered to him. That this was complied with is probable, from the testimony. The petitioner testifies that something was read to him out of a book, though he is unable to say what it was; and Captain Miller, the recruiting officer, testifies that he is under the impression, though not positive, that he read the forty-seventh article to him. He also says that he had quite a conversation with him, inquiring as to his past life and why he had decided to enlist. No solicitations were used, no advantage taken of him. The enlistment was a deliberate act. No specified amount of time for the purpose of consideration is prescribed by the regulation. The oath is not to be administered until his mind is fully made up, and that is all that is required. There is nothing in the circumstances surrounding the enlistment to vitiate the transaction. We conclude, therefore, upon the whole case, that the age of the petitioner was no bar to his enlistment of which he can take advantage; that the taking*of the oath of allegiance is the pivotal fact which changes the status from that of civilian to that of soldier; that the enlistment was a deliberate act on the part of the petitioner; and that the circumstances surrounding it were not such as would enable him, of his own volition, to ignore it, or justify a court in setting it aside. The judgment of the circuit court will be reversed, and the case remanded. with instructions to reverse the decree of the district court and take such further proceedings as shall be in conformity with the opinion of this court.

-(137 U. S. 157)

MORRISSEY V. PERRY.

(November 17, 1890.) ARMY-ENLISTMENT OF MINORS.

1. Rev. St. U. S. § 1117, which provides that "no person under the age of 21 years shall be enlisted or mustered into the military service of the United States without the written consent of his parents or guardians," gives the parent or guardian the right to invoke the aid of the courts to secure the restoration of the minor to his or her control, but it gives no privilege to the minor; and a minor over 16 years of age, (which is declared by Rev. St. U. S. § 1116, the period when minors may enter the military service,) who represented himself to be over 21 years when he enlisted, and whose parents are not insisting on their rights of control, is not entitled to his discharge from the service.

2. The fact that the minor deserted and concealed himself for over five years, and until after he had arrived at majority, does not relieve him from his obligation as a soldier, or his liability to military control.

Appeal from the circuit court of the United States for the eastern district of Missouri.

Henry W. Putnam, for appellant. Sol. Gen. Taft, for appellee.

BREWER, J. *This case, appealed from the circuit court for the eastern district of Missouri, presents, like that of U. S. v. Grimley, ante, 54, (just decided,) a question arising on habeas corpus as to the right of the petitioner, an enlisted soldier, to be discharged from military custody. An effort was made to bring this case here by writ of error; but that was abandoned, and an appeal rightfully substituted. In re Neagle, 135 U. S. 42, 10 Sup. Ct. Rep. 658. The facts differ from those in that case, in this: The petitioner was 17 years of age, and had a mother living who did not consent to his enlistment. Upon his enlistment he drew from the United States his uniform and equipments, and continued in actual service from the 23d day of August to the 13th day of September, 1883, when he deserted. He remained in concealment until February, 1889, at which time he had become of age, and then appeared at a recruiting office and demanded his discharge from the army on the ground that he was a minor when enlisted. In his oath of allegiance he swore that he was 21 years and 5 months* old. It will be seen that the petitioner was within the ages prescribed by section 1116 of the Revised Statutes, to-wit, 16 and 35 years. Section 1117 provides that "no person under the age of twenty-one years shall be enlisted or mustered into the military 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." But this provision is for the benefit of the parent or guardian. It means simply that the government will not disturb the control of parent or guardian over his or her child without consent. It gives the right to such parent or guardian to invoke the aid of the court, and secure the restoration of a minor to his or her control; but it gives no privilege to the minor. The age at which an infant shall be competent to do any acts or perform any duties, military or civil, depends

U. S. v. Wassum

V.

wholly upon the legislature. Bainbridge, 1 Mason, 71; Feeney, 121 Mass. 93, 95. Congress has declared that minors over the age of 16 are capable of entering the military service, and undertaking and performing its duties. An enlistment is not a contract only, but effects a change of status. Grimley's Case, supra. It is not, therefore, like an ordinary contract, voidable by the infant. At common law an enlistment was not voidable either by the infant or by his parents or guardians. King v. Inhabitants, etc., 2 Dowl. & R. 628, 634, 1 Barn. & C. 345, 350; King v. Inhabitants, etc., 1 Man. & R. 25, 31, 7 Barn. & C. 226, 231; Com. v. Gamble, 11 Serg. & R.93; U. S. v. Blakeney, 3 Grat. 405, 411-413. In this case the parent never insisted upon her right of custody and control; and the fact that he had a mother living at the time is, therefore, immaterial. The contract of enlistment was good so far as the petitioner is concerned. He was not only de facto, but de jure, a soldier-amenable to military jurisdiction. His mother not interfering, he was bounde to remain in the service. His desertion and concealment for five years did not re-* lieve him from his obligations as a soldier, or his liability to military control. The order of the circuit court remanding him to the custody of the appellee was correct, and must be affirmed.

(137 U. S. 160)

UNITED STATES V. TRINIDAD COAL & COKING CO.

(November 17, 1890.)

COAL LANDS-FRAUDULENT PURCHASE BY PRIVATE CORPORATION-CANCELLATION OF PATENT.

1. A private corporation is an "association of persons," within the meaning of Rev. St. U. S. 2347, which gives "an association of persons" the right to enter and purchase not to exceed 320 acres of the vacant coal lands of the United States, and such private corporation is also subject to the restrictions imposed by section 2350, which provides that "no association of persons, any member of which" shall have entered and purchased vacant coal lands under the preceding sections, either as an individual or as a member of any other association, shall enter or hold any other lands under the provisions thereof.

2. Patents for over 900 acres of coal lands obtained by members and employes of a private corporation pursuant to a scheme whereby the title was conveyed to the corporation, which paid all the expenses attending the entries and purchases from the government, will be canceled at the suit of the United States, especially where it appears that other members of the corporation had previously taken the benefit of the statute, and that the lands originally entered and purchased by them were then held and owned by the corporation, and were in excess of 320 acres.

3. The rule that he who seeks equity must do equity does not apply to a case where the government asks for the cancellation of patents to coal lands obtained by defendant in violation of a public statute; and the government need not offer to reimburse defendant the amount expended by it in procuring the legal title to the land as a condition of obtaining the relief sought. Reversing 37 Fed. Rep. 180.

Appeal from the circuit court of the United States for the district of Colorado.

This is a suit in equity by the United States against the Trinidad Coal & Coking Company, a corporation created under the laws of Colorado and engaged in the

161

business of mining coal. The defendant holds the legal title to six tracts of coal land within the Pueblo land district, in the county of "Las Animas, in that state, containing, in the aggregate, 954 34-100 acres, under conveyances executed to it by various individuals to be presently named, and to whom, respectively, patents were issued.

The relief sought by the government is a decree setting aside these patents, and declaring them void and of no effect, as against the United States. The defendant demurred to the bill upon the ground that it did not make a case for relief in a court of equity, nor allege that any of the entries were fraudulent or in contravention of law. The demurrer was sustained and the bill dismissed, the opinion of the court being reported in 37 Fed. Rep. 180. The sole question is whether the United State is entitled, upon the showing made by the bill, to the relief it asks.

Taking the allegations of the bill to be true, the case made by the government is as follows:

On or about the 4th of June, 1883, T. J. Peter and Robert Savage were officers and stockholders, and William H. Leffingwell, Milford N. Wells, Alexander Craigmyle, Charles F. Schuman, and Thomas Winsheimer were employes, of the defendant corporation. Peter, Savage, and certain other officers and members of that corporation, whose names are unknown to the government, together with Leffingwell, Wells, Craigmyle, Schuman, and Winsheimer, formed a scheme to procure patents for these lands "for the benefit and on behalf of said defendant corporation, and for the purpose of enabling said corporation to fraudulently obtain titles" from the United States for its "coal lands in excess of 320 acres, contrary to the statutes of the United States in such cases made and provided." In furtherance of that scheme, the persons just named, and those associated with them, or some one of them, or some one acting for them and in their behalf, on or about the day above named, wrote and prepared, or caused to be written and prepared, certain affidavits, one of which was in substance and to the effect that" no portion of the tract of land described as the north-east quarter of section six, township thirty-four south, of range sixty-three west of the sixth principal meridian, and containing one hundred and fifty-two and 53-100ths acres, was in the possession of any other party; that said Robert Savage was twenty-one years of age, a citizen of the United States, and had never held nor purchased, as an individual, or as a member of any association, lands under the laws of the United States relating to the sale of coal lands of the United States; that he, the said Savage, was well acquainted with the character of said land, and with every legal subdivision thereof, and had frequently passed over the same; that his knowledge of said land was such as to enable him to testify understandingly in regard thereto; that said land contained large deposits of coal, and was chiefly valuable therefor; that there was not, to his knowledge, within the limits thereof, any vein or lode of quartz or other

rock in place bearing gold, silver, or copper; and that there was not, within the limits of said land, to his knowledge, any valuable deposits of gold, silver, or copper." This affidavit was subscribed and sworn to by Savage on the 4th of June, 1883, before the register of the land-office, at Pueblo. The other affidavit, subscribed and sworn to before the same officer by Leffing well and Wells, set forth in substance the same facts as being within their knowledge.

The couspirators, or some one or more of them, or some one acting for them, on or about the same date, filed these affidavits in the land-office at Pueblo, and made application, in the name and on behalf of Savage, to enter and purchase, under the Statutes of the United States, this tract of 152 53-100 acres, as vacant coal land; and, at the same time, there was paid to the receiver of public moneys at that office the sum of $3,050.60, as the purchase price of the tract, at $20 per acre. Thereupon, the register issued, in duplicate, a certificate to the effect that Savage had on that day purchased this land from that officer at the price stated; that the payment of the price had been made in full, as required by law; and that, on the presentation of the certificate to the commissioner of the general land-office, he would be entitled to receive a patent for the land. Upon the payment of this money, and the issuing of the certificate, the receiver delivered to Savage, or to the conspirators, or to some one of them, or to some one for them, in duplicate, a receipt which, in effect, acknowledged that he had paid the above sum as and for the price of the land, at $20 per acre. This being done, the register and receiver forwarded the papers, affidavits, applications, and one of the certificates and receipts to the general landoffice, at Washington, delivering the other duplicate certificate to the conspirators, or to some one of them, or to some one acting for them, "such delivery purporting to be for and on behalf of the said Robert Savage.

Similar applications and affidavits were prepared and filed, at the instance of the same persons, in behalf of Leffingwell, Wells, Craigmyle, Schuman, and Winsheimer, respectively, in reference to the remaining tracts, and they severally procured patents to be issued, as follows: To Savage for 152 53-100 acres; to Leffing well, Craigmyle. Schuman, and Winsheimer, each, for 160 acres; and to Wells for 161 81100 acres. The government, relying upon such affidavits and certificates, believing that the lands were legally entered by each individual for his own use and benefit, and in ignorance of the conspiracy and its objects, issued patents for the several tracts, purporting, thereby to convey all its rights, title, interest, and estate therein to the parties, respectively, in whose names the entries were made. The patents were subsequently delivered to the patentees, or to some one representing them and acting in their name.

It, also, appears from the bill that Savage, Leffingwell, Wells, Craigmyle, Schuman, and Winsheimer did not enter the lands for their own use and benefit, nor for

the use and benefit of any of them, but for the direct use and benefit of the Trinidad Coal & Coking Company; that its officers procured the entrymen to go in a body to the city of Pueblo to file the above papers, as stated; that the papers and affidavits were drawn and prepared by its officers; that the expenses of the conspirators in going to that city to make the entries were paid by its officers, acting for it and in its behalf; that the entire purchase money for all the tracts and all land-office fees, costs, and expenses were paid by the company; that immediately after the filing of the affidavits in the land-office, and the pretended entries, Savage, Leffing well, Wells, Craigmyle, Schuman, and Winsheimer, and each of them, executed and delivered to the company warranty deeds conveying to it each of said tracts; that the company immediately entered into possession, and has possessed and claimed the lands until the present time; that no one of the patentees has ever claimed or asserted any right or interest in them, or in any of them, by virtue of the above fraudulent and illegal entries; that the entries were in reality and effect a purchase of the lands by the company; and that the entries and purchases by the persons named were only a device to evade the laws of the United States and to procure for the defendant a greater amount of coal lands than it could legally purchase and hold.

The bill further alleges that these entries of coal lands were illegal for the additional reason that, prior to the 4th of June, 1883, Peter, being an officer and stockholder of the company, had, on the 5th day of August, 1881, entered and purchased under the laws of the United States 160 acres of vacant coal land, and other officers and stockholders of the company, namely, Charles P. Teat, Joseph L. Prentiss, Orlando B. Wheeler, and others, whose names are unknown to the government, had purchased tracts of coal land of the United States, all of which entered and purchased by T. J. Peter and by such other officers and stockholders of the company were, on the 4th day of June, 1883, held and owned by the defendant, and were in the aggregate in excess of 320 acres of coal land; that neither the company nor any member or officer of it, for its own benefit or in its behalf, could then legally enter or purchase additional coal lands from the government; and that when said tracts were conveyed to it by the several patentees it had full notice of the alleged fraudulent scheme, as well as of the fact that the lands were being entered and purchased for its benefit exclusively.

Asst. Atty. Gen. Maury, for the United States. A. T. Button, A. B. Browne, Geo. ER. Peck, and Chas. E. Gast, for appellee.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The patents in question were based upon entries made under sections 2347, 2348, 2350, and 2352 of the Revised Statutes, which embody, substantially, provisions in an act of congress approved March 3, 1873, entitled: "An act to provide for the sale of the lands of the United States containing coal." 17 St. pp.

607, 608, c. 279. These sections are as follows:

"Sec. 2347. Every person above the age of twenty-one years, who is a citizen of the United States, or who has declared his intention to become such, or any association of persons severally qualified as above, shall, upon application to the register of the proper land-office, have the right to enter, by legal subdivisions, any quantity of vacant coal lands of the United States not otherwise appropriated or reserved by competent authority, not exceeding one hundred and sixty acres to such individual person, or three hundred and twenty acres to such association, upon payment to the receiver of not less than ten dollars per acre for such lands, where the same shall be situated more than fifteen miles from any completed railroad, and not less than twenty dollars per acre for such lands as shall be within fifteen miles of such road.

"Sec. 2348. Any person or association of persons severally qualified, as above provided, who have opened and improved, or shall hereafter open and improve, any coal mine or mines upon the public lands, and shall be in actual possession of the same, shall be entitled to a preference right of entry, under the preceding section, of the mines so opened and improved: provided, that when any association of not less than four persons, severally qualified as above provided, shall have expended not less than five thousand dollars in working and improving any such mine or mines, such association may enter not exceeding six hundred and forty acres, including such mining improvements."

"Sec. 2350. The three preceding sections shall be held to authorize only one entry by the same person or association of persons; and no association of persons any member of which shall have taken the benefit of such sections, either as an individual or as a member of any other association, shall enter or hold any other lands under the provisions thereof; and no member of any association which shall have taken the benefit of such sections shall enter or hold any other lands under their provisions; and all persons claiming under section twenty-three hundred and forty-eight shall be required to prove their respective rights, and pay for the lands filed upon within one year from the time prescribed for filing their respective claims; and upon failure to file the proper notice, or to pay for the land within the required period, the same shall be subject to entry by any other qualified applicant."

"Sec. 2352. Nothing in the five preceding sections shall be construed to destroy or impair any rights which may have attached prior to the third day of March, eighteen hundred and seventy-three, or to authorize the sale of lands valuable for mines of gold, silver, or copper.

The restrictions imposed upon the entry and purchase of the vacant coal lands of the United States have been so clearly expressed that no doubt can exist as to the intention of congress in enacting the above sections. The statute authorizes an association of persons to enter not exceeding 320 acres, and provides that only one entry