John A. Warner vs. Stockwell & Foster, 9 Vt. 9

Royce, J. Delivered the opinion of the court. We.have to consider the several grounds taken by the plaintiff, in answer to the justification relied upon by the defendants. He begins by insisting that he had a right to prove, in support of this action, his inability to perform military duty, in consequence of an internal injury received in childhood.

The statute has imposed this duty upon “ every free, able-bodied, white, male citizen of this State, or of any other of the United States, residing within this State, who is or shall be of the age of eighteen years, and under the age of forty-five years,” with certain exceptions. It is assumed that all these qualifications must coexist, to subject an individual to military jurisdiction; that the question of jurisdiction is, from its nature, at all times, an open question; and consequently, that if, in fact, the plaintiff was not an able-bodied citizen, the whole proceedings against him should be treated as void.

In order to determine how far this conclusion should be admitted, some farther notice of the Statute becomes necessary. Having in these general terms designated those who are subject to the requisitions of the act, it directs that they shall be enrolled in the militia, by the captains or commanding officers of the respective companies, within whose bounds they shall reside. It is made the duty of such commanding officers to enroll every such citizen, including those, who, from time to time, shall come to reside within the bounds of their respective companies.

And in all cases of doubt respecting the age of the party to be enrolled, he is required to prove his age to the satisfaction of the commanding officer. Notice of such enrollment is to be immediately given to the person enrolled, though a legal warning to attend a company, battallion, or regimental muster, or training, is allowed to operate as notice of enrollment. By the second

section various officers of the United States, and o'f the State government, and persons in certain situations and employments, are excepted from the operation of the Statute; and all such are declared to be exempted from enrollment. From all this it is evident, that the question of jurisdiction must relate to the time of enrollment, which is the first act and the basis of all subsequent proceedings. On this principle it has been adjudged, that in cases of express and permanent exemption from military duty, there was a want of jurisdiction over the party exempted, which rendered all proceedings against him void.

Wise v. Withers, 3 Cra. 331. — McLane v. Stuart reported in Swift’s Evidence, 359. And it must be conceded^ that if the first

section of the act did not extend to the plaintiff, his case is quite as favorable, as if he had come within the exemptions of the second section. The statute, however, must receive a practicable construction. There are various disabilities arising from bodily infirmity. Some are visible and notorious, as the want of a foot, a hand, an eye, and the like, while others are not open to observation. Some are permanent, and others temporary.

Now to the first class it is manifest that the statute was never intended to apply ; and therefore it may for ■the present purpose be admitted, that thus far the military jurisdiction should be denied. As to permanent infirmities of the other class, it is clear that if they render the party unable to discharge the duties .of a soldier, they ought fully to absolve him from those duties. But it does not follow, that such a per-may not rightfully be enrolled. So long as his infirmity is invisible, and unknown to the commanding officer, it is the duty 0p ]atter t0 earop him.

The statute can admit of no other sensible or just construction. And this is rendered still more evident, when w’e find that such a case is contemplated and provided for.

It is enacted by the 8th section, that “ no non-commissioned officer or- private shall be disenrolled from the militia for disability, without a certificate from the regimental surgeon, or surgeon’s mate,, to the acceptance of the commissioned officers of their respective companies.” Here is a provision for becoming disenrolled,. which can be applicable to those only, who are laboring under permanent infirmity ; and no distinction is made between persons thus affected previous to enrollment, and those who afterwards become so.

If the .plaintiff was affected with the infirmity which he offered to prove, it was not apparent to others, nor had the defendant-,. Stockwell, any notice of it, until after the plaintiff had* been enrolled and dealt with as one of the company.. Therefore it cannot now avail him for the purpose of avoiding the enrollment ab initio, though it should furnish sufficient cause fbr a disenrollment. In the mean time the plaintiff-became subject, like others of the company, to the military jurisdiction- conferred by the statute. Cases are cited from.

Massachusetts, to show that evidence of the plaintiff’s disability ought to have been received. Bbt the extent of their application will' readily appear,, from a brief notice of the regulations adopted by that- State on- these subjects. They have a different course of proceeding for this kind' of forfeitures, which to some may appear preferable to the

summary and final process authorised by our law. The clerk of each company is there the proper officer to prosecute for fines of this description. And it appears by the cases to which we are referred, of Howe. v. Gregory, 1 Mass. 81, and Commonwealth v. Fitz, 11 Mass. 540, that in such prosecution by the elerk, evidence of bodily infirmity is admissible, though the party may ha-ve neglected to make an excuse to bis commanding officer, as the statute required, or may have made it unsuccessfully.

The excuse would seem to be enjoined as a measure of mere prudenee,.to prevent the inconvenience of an unjust or groundless prosecution ; not as an appeal to any judicial- authority. In this respect our system is entirely different; it being settled by the case of Mower v. Allen and Bateman, 1 Chip. 381, that, in imposing and remitting fines, militia officers act judicially, and that their final decisions are conclusive, in another view th cases cited are equally inapplicable to the present. There y ,-uQuestion arose in a rect prosecution for the penalty; whereas-it now arises'in a distinct and collateral action.

The evidence was correctly excluded. The next question arises under the 35th

section of the act, which authorises the person amerced to apply to a field officer of the regiment, for a discharge or remission of the fine. The plaintiff made such an application. And it is urged that the process for collecting the fine was legally suspended, so long as the field officer saw fit to hold the subject under consideration. This depends on the question, whether the statute, in this particular, is merely directory to thé officer. The rule on this subject is very clearly and correctly stated by Marcy, J. in The People v. Allen, 6 Wend. 436.

He says “ that where a statute specifies the time, within which a public officer is to perform an official act, regarding the rights and duties of others, it will be considered as directory merely, -unless the -nature of the act to be performed, or the language used by the legislature,-shew that the designation of the time was intended as a limitation of the power of the officer.” According to the -test here given, the question raised admits of no doubt.

The statute allows the delinquent six days, within which to make 'the application, after being served with notice of the amercement. ‘It then directs that “ the said field-officer shall -thereupon notify the captain or commanding officer of the company, to which such delinquent belongs, of the time and place when he will hear the excuse of such delinquent, which shall be within six days from the time application shall be first made, and request the commanding officer to appear and show cause,” - &c¡-■“ And the said field-officer may, if he thinks proper, at the time of hearing said excuse, give further -time for 'hearing -the -same, not exceeding six days from the -time first appointed; -and said field-officer may or may not remit said fine, as the circumstances of the- case may require.” The power thus vested -in tire field-officer is not strictly an appellate power, since -the right of issuing final process in-the case is not given him.

If he thinks proper to remit the fine, the proceedings are at an end.; but if not, execution fr°m the commanding officer of the company, founded on amercement, as made by him. It is more properly a power ciieck or restraint upon the latter officer, operating to stay proceedings pending before him, but not effectually to transfer them to another jurisdiction. The nature of the power, there.fore, indicates that it should be temporary. If the field-officer has a general discretion to suspend proceedings of this kind, he may defeat the collection of a fine without ever remitting it.

The result is, that did the question rest solely upon the former clause of the section, which says that the time for hearing the excuse shall be within six days after application made, we should feel constrained to say, that here was a limitation upon the power of the officer ; and consequently, that his appointment of a distant day for hearing the excuse, was wholly unauthorised. But the express negative words of the latter clause, place the matter beyond all dispute. No statute was ever construed to be merely directory, in opposition to its own direct negative terms.

Here was, therefore, no restraint upon the defendant, Stockwell, when he issued the execution, and the same was legally issued. An attempt was made on trial, to invalidate the warrant issued to the defendant, Foster, as sergeant. We think the evidence offered for that purpose was properly rejected. The practice of signing these warrants in blank, and authorising the captains to fill out and deliver them to the sergeants of their respective companies, we believe to be very general, if not universal. No evil is known to have ever resulted from it. In the case cited to this point of Burt v.

Dimmock, 11 Pick. 355, the objection was, that the colonel bad not even signed the warrant; but that another person had signed it in his name, under a previous general licence to that effect. And if the defendant, Stockwell, had competent authority to fill and deliver out the warrant, the additional facts, offered to be shown, could be of no legal importance. This authority would imply the right of selecting the proper officer to receive the warrant.

And though, by mistake, or otherwise, it might once have been delivered to another person, that fact could not impair its validity as a warrant to Fester, after it had been accepted and acted upon by him. Besides, we may well presume, in the absence of proof to the contrary, that in pursuance of the 8th

section of the statute, this warrant bad been duly recorded by the adjutant, as having issued to Foster. But, admitting that the validity of the warrant is left in doubt, we are not prepared to say, that the legality of the plaintiff's commitment is thereby affected. It is a principle ol extensive application, that an official act, if regular and correct in the manner of its performance, will be sustained by proof that person doing the adt was an officer defacto. The rule is otherwise in proceedings instituted for the purpose of directly trying his right.

The defendant, Foster, was at least a sergeant de facto, having been duly elected and sworn. Rex v. Lisle, 2 Stra. 1091. And without deciding whether this would enable him to act without a warrant in a matter strictly military, and where, perhaps, the warrant might be his only ostensible authority for acting, we think he had authority sufficient for the act complained of; or rather, that the act cannot be impeached for want of authority. His immediate authority for making the commitment was contained in the writ of execution, which in its nature was rather a civil than a military process.

And as, in our opinion, the principle just stated would protect a constable or other civil officer in a like case, we see no good reason for denying to Foster the benefit of the rule, at least in this branch of his official duty. The remaining objection is to the mode resorted to for enforcing the execution. The plaintiff offered to prove that it might have been satisfied by a levy on property, and without an arrest or commitment of his person.

According to the order of proceedings pointed out by the statute, directing the mode of levying executions, the officer is first to demand payment of the debtor, or at the place of his abode, and then the right of arresting the person is postponed to that of seizing property. As to the first step prescribed, it is well settled, that the statute is merely directory. Eastman v. Curtis, 4 Vt. Rep. 616. — Dow v. Smith, 6 Vt. Rep. 519.

The other part of the enactment affects the personal liberty of the debtor, and, for any wanton violation of the right intended to be secured to him, he is certainly entitled to redress. But too strict a hand must not be laid upon the officer. Whenever he takes property, unless specially directed by the creditor, he acts upon hazards against which he has no indemnity. A liberal scope should be allowed him for the exercise of honest judgment and discretion.

If he commits the debtor in disregard of his right, without any apparent necessity for so doing, and from motives of oppression or malice, he ought to be answerable for all damages, and not otherwise. It would, therefore, seem, that the debtor’s remedy should be sought in a distinct action against the officer. Indeed, the decisions, already made on the first requirement of the act, appear, in principle, to cover the ground now taken. The court say, in Dow v.

Smith, before cited, .that “ the only practicable course is, to treat the officer’s proceedings as good ; and if his disregard of this directory statute is without excuse, malicious, and productive of injury to the debtor, let redress be had by an action on the case therefor against him.” There is another feature in this part of the'case, which would go far to remove the objection taken, were it necessary to rely upon it. The complaint is, that ¡the officer should have levied' on property.

But to entitle this complaint to consideration, it should appear that the debtor was .ready to acquiesce in the taking of his property. In this instance, however, the plaintiff did not intend to acquiesce; but gave the defendants to understand that they would be visited with an action, for any attempt to enforce the execution. On the whole, we consider that'the justification was made out, and that the judgment below must be affirmed. Judgment of County Court affirmed.