Elijah Hammond versus Aaron D. Dunbar, 24 Pick. 172

Morton J. delivered the opinion of the Court. The petitioner has set forth numerous errors in the proceedings of the magistrate, which we shall examine in the order in which he has assigned them. 1. It appears from competent evidence, that for many years a company of militia had been enrolled in Charlton ; that officers had been duly commissioned to command and discipline it, and that it had practically performed all the duties required of ordinary militia companies. This, we think, in a prosecution against one of its members for neglect of duty, is sufficient to show the legal establishment and organization of the company. The United States, by

an act passed nearly fifty years ago, recited in the

preamble to our statute of 1809, c. 108, authorized and required the legislatures of the several States, within one year thereafter, to arrange the whole militia into divisions, brigades, regiments, battalions and companies. The legislature of this State delegated the power to the commander-in-chief, with the advice of council. We cannot pretend to be ignorant, that the authority was duly executed, and that under the organization thus established, with alterations made from time to time, the militia has, from that time to the present, been governed and disciplined.

Every portion, of the Commonwealth must be presumed to come within the limits, and every individual liable to do military duty, to be borne on the roll of some company. In the circumstances of this company, as disclosed, with no proof to the contrary, it may be safely assumed that it came into existence by virtue of a legal order, from a competent source. It would be unnecessary and unreasonable to require the clerk to go further back in his proof. 2.

The petitioner having been enrolled and having done duty, in this company, for several years, cannot now, with any semblance of reason, complain of a want of notice of his en /olment. Haynes v. Jenks, 2 Pick. 172. By the statute of [he United States, of March 2d, 1803, § 2, any notice or warning for any training or muster, “ shall be deemed legal notice of enrolment.” 3. We think the evidence of the deficiency of the petitioner in equipments, is competent and sufficient. In the St. 1809, c. 108, § 8, the powers and duties of the clerk of a company are pointed out and defined.

Among other things he is required “ to keep a fair and exact roll of the company, together with the state of the arms and equipments belonging to each man,” to “ examine the equipments of the men when ordered,” and “ to note all delinquencies.” On the trial the clerk’s roll was produced. It contained a list of the members of the company, in one column, and a separate column, for each of the equipments required by law, so that against each name might, by a suitable mark, be designated the presence or absence of each

article of the equipments. This enrolment, with a mark under each

article produced at the inspection and a blank under those not produced, was given in evidence. It was a convenient and accurate mode of keeping an account of the equipments of the soldiers. This account or enrolment might be kept in the orderly book, or in any other book, or on any other paper, as the clerk should think best. Certain matters are required to be recorded in the orderly book, but this is not one of them. See § 8. 4. The warrant of the commanding officer, for warning the company, is sufficient.

It should convey an authority, from the proper source, to some non-commissioned officer or private, to warn either the whole or a certain part of the company. The warrant should, with reasonable certainty, indicate the persons to be warned. This may be done by naming them, (which is much the best way,) or by describing them in some other manner. If the order be to notify all persons liable to do military duty in the company, it would be sufficient, because by recurring to the roll, the persons to be notified could be ascertained.

So an order to warn all liable to duty, residing within certain territorial limits, though less convenient, would be good, because by recurring to the roll and ascertaining the residence of those enrolled, the warning officer would be certainly informed whom to warn. Id cerium est, quod cerium reddi potest. But in no case would a warrant be good which left a discretion as to the persons to be warned. 5. The testimony of the warning officer, that he left a notice at the petitioner’s residence, without any aid from his return on the warrant, is sufficient evidence of the warning.

To show that some other member of the company was not properly notified, or was not notified at all, has no legitimate tendency to show that the petitioner was not duly notified or to counteract the evidence that he was. If his notice was defective, instead of producing an imperfect notice to some one else he would have produced his own. If the petitioner was illegally notified, he had the power to show it; and his omission to do so is strong corroboration of the evidence against him ; which however needed no corroboration. 6.

The only difficulty we have met with in the case, arises from the complainant’s appointment as sergeant. And this is only important as it forms the basis of his appointment as clerk. The clerk must be one of the sergeants ; and unless he was legally appointed a sergeant, he could not be a legal clerk. The fourth

section of the militia law, provides, that “ the non-commissioned officers of companies ” shall “ be appointed by the captains of the respective companies, who shall forthwith make return thereof to the commanding officers of their respective regiments or battalions and they shall grant them warrants accordingly.” The sergeant’s warrant bears date September 10th, 1832; and there had been no captain, eo nomine, of this company for a long time before that day. Capt. Converse, though elected on the third, was not commissioned and qualified till after the 10th of the month.

And until commissioned and sworn, he had no authority to act as captain. To suppose that the colonel granted the warrant upon an appointment made before the discharge of the former captain, would be to presume against the fidelity of that officer and against probability. The appointment was undoubtedly made by the ensign, who, at the time, was the commanding officer of the company. Unless therefore such an officer has the power to make such an appointment, this must be void- The 13th

section of the above statute provides, “ that whenever the office of” u captain shall be vacant, the officer next in grade and in commission in the ” “ company shall exercise the command and perform the duties thereof until the vacancy shall be supplied.” This expressly transfers to the next in command, not some or a part, but all of the duties of captain. One of these duties is the appointment of sergeants. This duty would seem to be devolved upon the next in command as much as any other.

And we should have entertained no doubt upon this point, had not a different mode of expression been adopted in other similar cases, where the authority is expressly given to the officer upon whom the command has devolved. Thus, in the 8th section, the clerk is to be appointed, to be qualified, and a certificate of his appointment and of his qualification, to be made, “ by the captain or commanding officer.” And this expression is repeated four times in this section.

Now we are fully aware of the strength of the argument derived from this use of language ; and that by the approved rules of construction it is entitled to great weight. But it is not conclusive, and we are inclined to think that these different forms of expression were used inadvertently rather than intentionally, and on the whole have come to the conclusion, that the import of the clause above cited must prevail over any inferences from particular expressions or rules of construction.

We are brought to this conclusion from analogy to other similar cases, from the nature of the authority, and from the necessity of the case. By the 13th

section the commanding officer of the regiment is empowered, “ whenever a company shall have neither officers nor non-commissioned officers,” to appoint the latter. Now a company may have neither captain nor non-commissioned officers, and yet have commissioned officers, in which case the colonel cannot appoint sergeants; and unless the commanding officer of the company can appoint them, there can be none, and the company will be disorganized and may set the law at defiance. If there are no sergeants, there can be no clerk.

And without a clerk there can be no records, and no officer to prosecute for neglect .of duty. The commanding officer can appoint a clerk pro tern, only “ in case of sickness, absence or other inability of the clerk,” but not in case of a vacancy. If the filling the vacancy had not before been provided for, the presumption is very strong that he would have been empowered to fill the office pro tern, as well in case of vacancy as of inability. But if he had power to fill the vacancy, it would be unnecessary to authorize him to appoint a temporary officer.

Captain Converse, by virtue of his authority as commanding officer of the company, undertook to appoint a sergeant. This we think he had a right to do. It is altogether probable, that when he exercised this power he supposed he was doing it by virtue of his election to the office of captain, and not by virtue of his commission as ensign. He possessed the power; he exercised it ; and the rightful exercise of power will not be defeated by a mistake as to the source whence it was derived. The law will trace it to the right source. 7.

The complainant having been legally appointed a sergeant, became eligible to the office of clerk. This appointment, by the words of the statute above cited, might be made “ by the commanding officer of the company.” He was so appointed and duly sworn. And for the reasons above suggested, it is immaterial whether this officer judged right or wrong as to the source of his authority. He did not expressly and formally act in either capacity, not having subjoined to his name the official character in which he acted ; though he preceded it by a title which conveyed a strong indication. 8.

The complainant undoubtedly charged the petitioner with the proper offence. It was the only one of which he had been guilty. Had he complained of him for non-appearance, his own roll would have been a perfect answer to his complaint. Having appeared, he was bound to be duly equipped, and for his neglect in this respect he was liable to the penalties imposed upon him. The Court are of opinion, that the petitioner has failed to sustain any of his objections to the proceedings of the justice; and his petition must be dismissed.