The opinion of the court was delivered by: FORMAN
James G. McCollam was born to Hugh McCollam and Sarah McCollam on January 4, 1922. On July 10, 1940, he enlisted as a private in the Headquarters Battery, Second Battalion, 244th Coast Artillery, of the New York National Guard. On September 16, 1940, together with the other members of his outfit, he was indjcted into the Army of the United States, pursuant to Joint Resolution No. 96 of the 76th Congress, approved August 27, 1940, 50 U.S.C.A.Appendix, § 401 et seq., and the Presidential Order of August 31, 1940. At the time of his enlistment and induction he had just finished his first year in college, was eighteen years of age and resided with his parents who had not been informed of his enlistment at the time he joined the National Guard, but learned of it shortly before his induction into the Army. A few days thereafter his mother appeared at the Armory of her son's regiment and sought out his battery and battalion commanders. She presented his birth certificate in corroboration that her son was only eighteen years old and told them that she had never consented to his enlistment, and on behalf of his father and herself, she requested that he should be released from service. She was told that her son was nevessary to fill the complement of the regiment and that he could not be released, but assurance was given her that he would be released at the end of one year.
The petitioning father also visited the same officers and was likewise informed by them that his son could not be released.
In the following month the mother once more appealed to the battalion commander for the release of her son by way of a letter, dated October 21, 1940, which was forwarded to him at Camp Pendleton, Virginia Beach, Virginia, where her son's battery had been sent for training. No reply was made to this written appeal.
Finally, in September of 1941, when a year had expired, the parents retained counsel, who in their behalf conferred with a representative of the War Department at Washington to whom were submitted evidence of the birthday of the soldier and affidavits concerning the circumstances of the request for his release. Counsel was informed that the documents he presented would be forwarded to the commanding officers of the soldier with directions to report as to the confirmation or denial of the facts recited in the affidavits. Subsequent inquiry directed to the commanding officers elicited the response that these papers had never been forwarded and no disposition of the matter was obtained by counsel.
Learning that the soldier was transferred to Fort Dix, from where he was to embark on foreign duty, application was made to this court by his father, Hugh McCollam, for a writ of habeas corpus to inquire into the legality of his induction into the Army. An order to show cause was issued why a writ should not be granted and the respondent moved to dismiss the petition and discharge the order to show cause on the ground that there was no statutory reason for his discharge from the Army, either in law or under the facts set forth in the petition. The motion of the respondent was denied and the writ of habeas corpus issued.
The respondent made a return to the writ, produced the body of the relator and filed a demurrer. A hearing was held, and the facts substantially as set forth above were either proved or conceded by the respondent. The petitioner directed attention to the following statute:
"Upon the presentation of satisfactory evidence as to his age and upon application for discharge by his parent or guardian presented to the Secretary of War within six months after the date of his enlistment, any man enlisted after July 1, 1925, in the Army under twenty-one years of age who has enlisted without the written consent of his parent or guardian, if any, shall be discharged with the form of discharge certificate and the travel and other allowances to which his service after enlistment shall entitle him." Title 10 U.S.C.A. § 653, Feb. 12, 1925, ch. 225, title I, 43 Stat. 896.
He also referred to the Army Regulations promulgated under the said statute in which the procedure to make the statute operative is outlined. (See Army Regulations No. 615-360, paragraphs 31 to 39, inclusive.)
The respondent argued that the statute upon which the petitioner based his application was no longer in effect, that it was simply a proviso to the Appropriation Act of 1926 and it expired at the end of that fiscal year. He further submitted that said section was inconsistent with the Selective Training and Service Act of 1940 and 1941. 50 U.S.C.A.Appendix, § 301 et seq., for in those Acts Congress expressly authorized the enlistment of men under the age of twenty-one, and under the 1941 Act actually authorized conscription of men of the age of twenty. He also urged that since the relator was inducted into the Army from the National Guard, he does not come within the purview of enlisted soldier contemplated under the statute. He argues that the question here is moot, because the writ of haveas corpus was not granted until February 6, 1942, and on December 20, 1941, Congress authorized the conscription of male persons who had attained the twentieth anniversary of their birth and therefore Title 10 U.S.C.A. § 653 if effective at all must have been impliedly repealed by the Selective Service Act of 1941. Finally, the respondent contends that the facts are insufficient to sustain the writ because the requests by the parents for release of their son did not formally comply with paragraph 37 of Army Regulations No. 615-360, Section IV, which is as follows:
"37. Evidence required. -- a. In support of an application for discharge under this section, the following evidence of age is required:
"(1) A duly authenticated copy of a municipal or other official record of the birth of the enlisted man, or
"(2) If no official record of the birth of the enlisted man can be obtained the affidavit of the parent or guardian should state specifically why an official record cannot be obtained. This affidavit must be accompanied by --
"(a) A baptismal certificate or the affidavit of the physician or midwife in attendence at the ...