Bartlett v. Jenkins

| Superior Court of New Hampshire | Dec 15, 1850

Gilchrist, O. J.

Several of the exceptions taken at the trial have not been insisted on in the argument, and therefore we shall consider them as waived.

I. When the clerk was appointed, the Ensign did not reside within the limits of the company, and was not consulted in the appointment.

Chap. 93, <§. 9, Rev. Stat., enacts that company officers shall reside within the limits assigned to their companies, and section 10 provides, that if any officer shall remove without such limits to reside, without resigning his commission, it shall be sufficient cause for an address for his removal.

In the case of Cutter v. Tole, 3 Greenl. 38, cited by the counsel for the defendant, the Captain had removed his residence out of the bounds of his command, but it was held that, under the statute of Maine, such removal did not render his office vacant, or even entitle him to a discharge, unless he had removed to such a distance that, in the opinion of the Major-General, it would be inconvenient for him to discharge the duties of his office. The case, therefore, is not in point hgre, owing to the difference in the statutes of the two States.

If residence within the limits of the company he considered of so much importance by the legislature, that, if the officer reside without them, he shall be subject to be removed by address, it would seem to have been the intention of the law that he should no longer be regarded as a proper person to perform the duties of his office. The appointment of proper subordinates is one of the most important duties of superior officers, and if an officer who has removed out of the limits of his company may share with others in the exercise of this power, there seems to be no reason why he should not be permitted to perform any other official duty. But it is certainly contrary to the spirit of the law, requiring officers to reside within these limits, to permit them to perform all the functions of their rank as well after as "before their change of residence. We think, therefore, that it was unnecessary to consult the Ensign in the appointment of the clerk.

It may he added, that, by the Constitution, section 54, the “ Captains and subalterns ” shall appoint their non-commissioned officers. It is provided by the N. H. Laws, 402, § 5, (ed. of 1830,) that “ all sergeants and corporals shall be appointed by the Captain and subalterns of the company.” In the case of the State v. Dwinnell, 6 N.H. 167" court="None" date_filed="1833-07-15" href="https://app.midpage.ai/document/state-v-dwinnell-8503884?utm_source=webapp" opinion_id="8503884">6 N. H. Rep. 167, there was no Captain, and the clerk was appointed by the subalterns. It was held that the appointment was valid, that a majority of the officers might appoint a clerk, and that an appointment made by any two of the commissioned officers was in compliance with the requisitions of the statute. The precise question now before us did not arise, but the decision shows that where there is a vacancy among the officers a majority of them may make the appointment; and our opinion is, that in this case, although the Ensign had neither resigned nor been removed, yet as he had changed his residence and was liable to be removed, the statute did not require him to be consulted. Whether, a majority having the power to appoint, it is necessary that all the officers should be consulted, if all of them reside within the limits of the company, is a question that need not be settled at present. This exception must be overruled.

II. It is the duty of the Captain to parade his company on the third Tuesday of May, annually, and also on one other day, and no more. Rev. Stat. chap. 87, §§ 1 and 2. There seems to be no reason why he might not parade his company at six o’clock, Á. M., on the 22d day of September, as well as on any other day. He is bound to obey the orders of the Colonel in relation to the time and place of review; but if he obeys the order as to the time by parading his company at eight o’clock, A. M., who can complain of him that he has already assembled his company at six o’clock, and that consequently they have been two hours on the ground ? There is nothing in the case of Colburn v. Bancroft, 23 Pick. 57, which conflicts with this view of the case. There, the Captain ordered his company to appear at twelve o’clock, for military duty and inspection. It was held that the order was valid, although the law required that the inspection should take place at one o’clock, P. M., as the Captain was authorized to exercise and discipline his company at any time on that day. We think this exception cannot be sustained.

III. The order to warn the company was addressed to “ Jerome Tuttle.” It is not denied that Tuttle was a'private, but it is said that the order should have been addressed to him in that capacity. If it were at all important to the defendant that he should know from the order whether Tuttle were a sergeant or not, there might be some validity in the exception; but as we cannot see of what value the information would have been to him, or in what way it would have altered his position, or affected his liability, we think the exception must be overruled.

IY. The return on the order was seasonably made, whether it were on the 15th or 16th of September. A return that “ four days’ notice was given ” is insufficient, and the date of the service must be stated. Huntoon v. Kidder, 8 N.H. 482" court="None" date_filed="1837-07-15" href="https://app.midpage.ai/document/huntoon-v-kidder-8504151?utm_source=webapp" opinion_id="8504151">8 N. H. Rep. 482. But if it appear clearly from the return that the service must have been four days before the day of parade, it will be sufficient. Here, the parade being on the 22d, and service either on the 15th or on the 16th day, would be more than four days before the 22d, and we think the return is sufficient.

Y. The company was ordered to appear on parade at or near the house of Bumford. These words, at and near, are in this connexion synonymous. The word at is used “ to denote near approach, nearness, or proximity.” Richardson’s Eng. Diet. “ In general, at denotes nearness of presence,” as at the ninth hour, at the house ; at the house, “ may be in or near the house.” Webster’s Diet. This exception must be overruled.

YI. The act of July 10th, 1846, repeals the law providing for a company parade on one day besides the 3d Tuesday of May, and for an annual regimental review. It contains no provision relating to absolute or conditional exempts. It repeals all acts inconsistent with its provisions, but it contains nothing inconsistent with the law requiring a certificate to be filed by exempts. In that particular the former law Avas in force in the month of April, 1847.

The act of July 3d, 1847, repealed the act of July 10th, 1846, in terms, and revived all the provisions of the militia laws which were repealed by that act.- Among other things it revived the law providing for a regimental review, but fixed the time for it between the 15th of September and the 15th of October. Thus, there was a period between the 10th of July 1846, and the 3d of July, 1847, when there was no law requiring a regimental review between the 1st of September and the 15th of October, but such a law existed after the 3d of July, 1847. The defendant filed no certificate before the 20th of April, 1847, as he was bound to do even under the law of 1846, for that law required a parade for inspection and discipline on the 3d Tuesday of May., If this certificate had been filed, he would have been exempt from military duty for the year, for he would have come under the law as revived by the act of 1847. As the law relating to exempts remained in force during the whole period, and as he filed no certificate in 1847, the exception cannot be sustained.

YII. The Rev. Stat. chap. 87, § 5, provides that “ Captains shall yield obedience to the orders of the Colonel in relation to the time and place of review.” The order produced was from the Colonel, and the Captain was bound to obey it, without looking beyond it.

Judgment on the verdict.