| Vt. | Jan 15, 1838
The opinion of the court was delivered by
The sufficiency of the plaintiff’s replication depends altogether upon the effect of the supposed physical disability alleged therein. It is .not to be questioned, that, if a military officer, transcend the limits of his authority and take cognizance of a matter not within his jurisdiction, his acts are void, and will afford no justification to those who act under him. It may, also, be conceded, that, if he assume jurisdiction over those, who are not liable to enrolment, as subjects of military duty, he transcends his authority, and that he and those, who act under him, or under his supposed authority, may be made trespassers.
But, whether physical infirmity constitutes an absolute exemption from military duty, in such sense as that no military jurisdiction could be exercised over the subject of it, may well be doubted. Whether it operates as an exemption, at all, depends upon the character and degree of infirmity, and whether as a temporary or a permanent exemption, is an inquiry of the -same character, resting in judgment and opinion. It cannot then be admitted, that bodily infirmity, without reference to its particular degree, or character for
By the act relating to the militia, the officer is required to enrol all able bodied citizens of a certain age, with certain exceptions enumerated in the second section of the act, (which exceptions have no reference to the physical ability) and, by the 8th section, a provision is made, by which a citizen may be disenrolled upon the certificate of a surgeon, but even in this case, the certificate must be “ to the acceptance” of the officer. It is clear from these provisions, that mere physical infirmity was not intended by the Legislature to operate as an exemption from enrolment and military jurisdiction, but this subject was left to the sound judgment and discretion of the officer, to be exercised in the manner, and subject to the restrictions, provided by the act.
It is insisted, however, that the term, “ able-bodied” qualifies the power of the officer over this subject. It may be difficult to define the precise import of this term, as here used. That it does not imply an absolute freedom from all physical ailment, we think evident. We think it imports an absence of those palpable and visible defects, which evidently incapacitate the person for performing the ordinary duties of a soldier. But even of this the officer must, from the necessity of the case, judge in the first instance, and if he misjudge, the error is to be corrected, not by action of tres-* pass, but in the manner pointed out by the statute.
The infirmity, set forth in the replication, does not appear to be an absolute disability ; and, if it did, it is not alleged to have existed at the time of the plaintiff’s enrolment, If it were a supervenient disability, which may be assumed consistently with the plea, then the plaintiff was. a proper subject of disenrolment, under the 8th section of the act.
The replication is, therefore, bad in two points of view. In the first place, the officer was the proper judge of the ability of the plaintiff, and in the second, the disability not
Had the plaintiff come within any of the exceptions of the second section, the case would have been different.
An exception is taken to the defendant’s first plea, that it doeg not set forth the preliminary steps, the warning, &c., which the law requires as preparatory to the amercement.
Had the captain been made defendant in this action, this might, perhaps, have been necessary to his justification. But the defendant is protected by his precept, and if that be regular, he is not responsible for irregularity in the previous proceeding.
The first plea being sufficient, it becomes unnecessary to examine the second.
Judgment of the County Court is affirmed.