9 Vt. 9 | Vt. | 1837
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
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
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
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.
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
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.