Erichson v. Beach

40 Conn. 283 | Conn. | 1873

Park, J.

The defendant . with forty other able-bodied citizens of this state" petitioned the Governor on the 29th day of December, 1871, to be organized into a company of infantry, to be annexed to the First Regiment of the Connecticut National Guard. ■ The petition was granted on the twentieth day of March of the same year, and the petitioners were directed to assemble for the choice of officers of the company. The defendant was present at the meeting called for the purpose, and expressed himself satisfied with the selections that were made, although he took no active part in the transactions of the meeting.

These are the principal facts regarding the main question raised in this case, which is, whether the defendant was duly enlisted into the military service of the state ?

' We think Ire duly enlisted when he signed the petition to the Governor and was accepted as a member of the active militia. An enlistment, says Boúvier, is “ the act of making a contract to serve the government in a subordinate capacity, either in the army or navy.” To enlist, says Webster, is “ to enroll for military service.” It' is obvious from these definitions that the defendant did all that he possibly could have done had he signed a formal enlistment paper. He offered -himself to the government in unmistakable written terms, and, before the proposition was withdrawn, was accepted, and he and his associates were organized into a military company.

After this was- done we think the contract of enlistment was complete, and that the. defendant could not afterwards withdraw from the service.

But it is claimed that the contract of enlistment was not . complete and binding,, because the defendant did not sign duplciate enlistment papers as required by the thirty-ninth section ol the act. That section provides that “ all persons enlisting shall sign duplicate enlistment papers, one of which shali be sent to the adjutant general and the other filed with the company records.” But this provision is merely directory, and a compliance with it clearly is not necessary to the validity of an enlistment made as was the present one. It is in terms directory, and seems intended rather to provide for record evidence of the enlistment than to prescribe the only possible mode of effecting an enlistment. The Governor as commander-iii-cliief is authorized by the act to organize into military companies persons making application to him to be so organized, and when 'he has thus organized a company so that it has a legal existence as such it must of course have members, and yet the construction contended for would give such a company an organization and legal existence while not a person in it would be held by any binding enlistment. Such we feel sure can not have been the intention' of the legislature.

Another objection is made by the defendant which we think is fatal to the plaintiff’s case as it now stands. The eighty-seventh section of the act on which this suit is based, provides that “ no action shall be brought under this section except Upon the approval of the commanding officer of the regiment.” There is no allegation in the plaintiff’s declaration that such approval was given. It is obviously essential that the allegation should be made and the fact proved, before the plaintiff can bo entitled to recover. But inasmuch as it is highly probable that such approval of the commanding officer of the regiment was in fact given before the suit was instituted, and that the want of the proper averment was owing to mistake, we have concluded to advise the Court of Common Pleas that, if the plaintiff shall amend his declaration in the manner indicated^ and shall prove to the satisfaction of the court that such approval was in fact given before the suit was instituted, judgment should be rendered for the plaintiff; otherwise for the defendant.

In this opinion tlic other judges concurred.