Gould v. Hutchins

10 Me. 145

• Court: Supreme Judicial Court of Maine
• Decided: April 15, 1833
• Status: Published

Opinion

The opinion of the Court was delivered at, the ensuing April term, in this county, by

Parris J.

This is a writ of error, brought to reverse a judgment rendered against the plaintiff in error, in a suit against him for the recovery of a penalty for his non-appearance at a company training of a company of infantry in Kennebunk-port, whereof Oliver Adams is commanding officer, and the defendant is clerk. The record of the justice of the peace, whose judgment we aro called upon to examine, purports to contain a statement of all the facts, as they appeared at the trial, and on which the judgment was rendered. The first error assigned is, that Hutchins was not legally appointed and qualified as clerk. The case does not shew how he was appointed and qualified. The justice’s record refers to the sergeant’s warrant and certificate of appointment and qualification on the back, as making a part of his report of the case; but neither warrant or certificate are furnished. We have, therefore, no means of ascertaining whether there be any error in the justice’s decision upon this point.

The second error assigned is, that Adams was not the legal commander of the company of militia within the bounds of which the defendant below resided; and third, because the defendant below did not reside within the limits of the company purporting to be commanded by said Adams, nor was he liable to do military duty therein. It is not pretended that Gould resided within the original limits of the company whereof Adams is commanding officer, but that by virtue of certain proceedings of the Governor and Council, he became so far a member of that company as to be by law liable to perform military duty therein. The proceedings relied upon are a report of the standing committee of the Council on military affairs, as follows, “ The standing committee on military affairs to which “ was referred a communication from Major-General Waterman “ of the first Division, accompanying a communication from F. “ A. Symonds, Lieut. Colonel of the fourth Regiment, first Bri- “ gade in said Division, representing that the company of infantry in Kennebunk-port, formerly under the command of C( Captain Oliver Brown, (Bourne,) is entirely destitute of of- “ ficers, and were ordered out on the 30th of July last, for the “ choice of officers ; but they refused to elect any officers, by “ casting blank votes in part, and partly by voting for a man “ wholly unfit to hold any office whatever, &c. Report, that “ for the reasons set forth in said communication, &c. said com- “ pany ought to be disbanded, and recommend that the Com- “ mander-in-Chief be advised to cause an order to be issued “ whereby said company shall be disbanded, and the members “ be attached to the company under the command of Ensign “ Oliver Adams, in said Kenncbanlc-port which report was accepted by the Council and approved by the Governor on the 16th of March, 1832, and a general order issued thereon on the 20th of March, requiring the Major-General of the first Division to “ cause the foregoing order in Council to be carried into “ effect.”

It is by virtue of these proceedings that Gould is charged a^s liable to perform duty in the company under the command of Adams. Supposing these proceedings to be all correct and legal, of which we shall hereafter consider, was there any evidence shewing that Gould was a member of the disbanded company or resided within the limits thereof. Unless such was the fact the doings of the Governor and Council could have no effect upon him. As the plaintiff, in the case before the justice, was prosecuting for a penalty, the burden was on him to sustain all his material allegations by competent proof. He must, among other facts, shew that the person charged was a member of the company of which he was clerk, or liable to perform military duty therein. If he charged him as belonging to the company, under the general militia law, he must shew that he resided within its bounds, and was liable to enrolment. Whitmore v. Sanborn, 8 Greenl. 228. If he charged him under the proceedings of the Governor and Council, he must shew that he fell within the operation of those proceedings, that is, that he was a member of the disbanded company, and being such, was consequently transferred to Adams’ command, and this must be shown by competent proof. The disbanded company, being a local company of infantry, was composed of persons residing within certain defined territorial limits, and neither Adams nor his clerk, could, by viitfie of the proceedings of the Governor and Council, exercise command over any of the citi- ' zens, except such as resided within those limits and were liable to perform military duty. It was incumbent on the clerk, in sustaining his prosecution, to shew, in limine, that Gould resided within the limits of the disbanded company, and in order to do so he must necessarily shew what were those limits. Of this, as in all similar cases, there must exist record evidence. The company must have been originally established and its limits defined by an official act of the Governor and Council, and a regular succession of military orders, issued and passed down, for its organization. A copy of the record of all these proceedings is, or ought to be on the files of the company. If it be not there, it is to be found in some of the different offices through which it passed, or .in the office of the Adjutant-General or Secretary of State, from which it emanated. As, from the nature of the case, record evidence of the limits of the disbanded company must exist, parol evidence is not admissible. When the record evidence is produced, the location of thé bounds of the company as described in the record, and who reside within those bounds, may be proved by parol. Inasmuch as the justice certifies in his record, that “ there was no evidence intro- “ duced to prove what were the bounds or limits of the com- “ pany referred to as disbanded,” it did not appear that Gould resided within the limits of that company, or was liable to enrolment therein, and consequently it did not appear that he was included in the order of the Governor and Council attaching the members of the disbanded company to that commanded .by Adams. The case of Whitmore v. Sanborn, is an authority directly applicable on this point.

We-might rest here, but as it was stated at the bar, that there were many other cases depending on the same facts, and it was desirable that the principal questions raised at the trial should be decided, we proceed to their examination.

By the general law to “ organize, govern and discipline the “ militia of this State,” ch. 164, sec. 6, “ The Governor is au- “ thorised and empowered by and with the advice of the Coun- “ cil, to organize and arrange the militia, and to make such “ alterations therein, as from time to time may be deemed ne- “ cessary.” Under this law the Governor and Council have power to establish new companies and define their limits, to divide old ones, and to abolish or consolidate those already formed ; but they have no power to compel the members of one company, while it exists as a company, to perforin duty in another. Under the same statute, sec. 10, the case is provided for, where the electors refuse to fill vacancies, by neglecting or refusing to elect, when duly notified and ordered thereto. In such case, the Governor, with advice of Council, is required to appoint some suitable person to fill such vacancy. Thus stood the law until March, 1832, when by an additional act for organizing and governing the militia, ch. 45, sec. 5, it was provided, “ that if any company shall refuse or neglect to choose officers, “ when thereto required, the Colonel or commanding officer of “ the Regiment to which said company belongs shall report the “ fact to the Commander-in-Chief, who shall immediately dis- “ band said company, and order the non-commissioned officers, “ musicians and privates thereof, to be enrolled in the oldest “ adjoining standing company, and they shall be held to do “ therein all the duties required by law.” Under which of those statutes did the Governor and Council act in passing the order of the 16th March, 1832 ? They do not profess to abolish the company, or make any alteration in its territorial limits, or extend the territorial limits of Adams’ company so as to include Bourne’s. That, and that only, were they authorised to do under the old law, and for any cause which they deemed sufficient. But they profess to “ disband the company” and attach the members thereof to Adams’ company; what they had no power to do under the old law, but what the Commander-in-Chief, on the existence of a certain contingency was expressly required to do under the new law. The only circumstance attending the transaction tending to render it doubtful under which law the order was issued, is, that the provisions of the 5th section of the last law are to be carried into effect by the Commander-in-Chief, without the intervention or advice of the Council, which fact indicates the intention of the Legislature that the refractory company is not to be abolished, which under the old law could only be done by the Governor with advice of Council, but that it was to be disbanded by the Commander-in-Chief, and the members thereof required by him to be enrolled in the oldest adjoining company, there to perform military duty until they will choose officers for the disbanded company. Supposing the order of the 16th of March to have been predicated on the 5th sec. of the additional act, does it render the members of “ the “ company of infantry in Kennebunk-port, formerly under the- “ command of Capt. Oliver Bourne,” liable to perform military duty in the company under the command of Adams ? It is only in the case where a company shall refuse or neglect to choose officers when thereto required, or refuse or. neglect to do duty as prescribed by law, that the Commander-in-Chief is authorised to disband a company and order the members to be enrolled and perform military duty in another. By the 7th sect. of statute chap. 164, the captains and subalterns of companies are to be chosen by the written votes of the members of their respective companies; thus securing to the members of each company the important right of electing their own officers; and so long as they give their votes for a person eligible to the office to be filled, they cannot be considered as refusing or neglecting to choose, although the individual voted for may not be considered as the most suitable to discharge the duties of the office. If the electors all throw blank ballots, there can be no election, and the case of neglecting to choose, provided for in the statute, would exist. If they vote for a person ineligible and who cannot hold the office, the case of neglecting to choose would exist, inasmuch as the office would remain vacant; and the true construction of the statute must be, that they neglect or refuse to fill the vacancy by the choice of a person legally eligible to the office. But it could not have been the intention of the Legislature, and the language of the statute will not bear such a construction, that, because the members of a company give their votes for a man whom the commanding officer of the Regiment may believe unfit to hold the office, that they are to be disbanded, divested of all their company privileges, and required to perform duty in another company.

Of the qualifications of eligible candidates and their suitableness for office, the law, in all cases, both civil and military, makes the electors competent and final judges. The members of a company may elect very unsuitable men for officeis, but it is their right under the 7th sec. of the law, to prefer such men if they please. The candidate whom they might believe to be the most suitable, and who in fact might be so, the commanding officer of the Regiment might deem to be a “ man wholly unfit to hold “ any office;” and yet they have a right to choose him under the 7th section of the militia law ; and if they do so, how can it be said that they refuse or neglect to choose. It does appear by the representation on which the order of the Governor and Council was predicated, that the company voted, and it does not appear that they voted for a person ineligible or who refused to accept; and the commanding officer of the Regiment does not report that they refused or neglected to choose except by voting for a man whom he considered unfit to hold any office. We cannot believe that this presents the case on which the Legislature intended to clothe the Commander-in-Chief with a power so important, and which might be used to the great inconvenience, not to say oppression, of the citizens. A commanding officer of a Regiment might, from private feelings or personal pique, consider a person unfit to command a company, who in fact might have qualifications of peculiar excellence; and yet, if the choice of such a person is to be considered as a neglect or refusal to choose, within the meaning of the 5th section of the additional act, and the commanding officer of the Regiment may so certify it, the Commander-in-Chief is required, for the law is imperative, immediately to disband the company, and order the non-commissioned officers, musicians and privates thereof to be enrolled in the oldest adjoining standing company. We cannot so construe the law; — and believing that the communication from the Lieut. Colonel did not present such a case of neglect or refusal to choose officers as is provided for in the 5th section of the additional act, we will consider what is the situation of Adams’ company, if the Governor and Council intended to act under the 6th section of statute chap. 164, which authorises them to organize and arrange the militia generally. Under that law they had full power to abolish the company formerly under the command of Bourne, and extend the limits of Adams’ company so as to include the whole of the company abolished. — If this was done at all, of which we do not find it necessary to give an opinion, it was by the order of the Governor and Council of the I6th of March, 1832.

By the 9th section of the additional act, before referred to, passed March 9, 1832, the selectmen of each town are required “ to define the limits of every company of infantry, in their “ respective towns, and cause the same to be recorded by the “ respective clerks of said towns, and furnish the commanding “ officer of said company, with a copy of their doings before the “ first day of June then next, and the copy aforesaid shall be re- “ corded in the orderly book of the company.” This duty the selectmen of Kennebunk-port performed on the 30th of May, 1832, as appears by an attested copy signed by the town clerk of that town. They say, “ the undersigned, selectmen of the town “ of Kennebunk-port, in pursuance of a law of the State, have “ defined the limits of the several companies of infantry in “ said town, which are as follows,” &c. They then particularly describe the limits of the first company by known monuments, and the limits of the second company in the same manner, and the limits of the third company as embracing all the limits of the town not included in the other two companies.

The justice reports that it was proved that Gould did not reside within the bounds of the company commanded by Adams, but was within the limits of another company, as the limits thereof were defined by the selectmen.

Now, if previous to this act of the selectmen, Gould had lived within the limits of Adams’ company, could he any longer belong to that company after the selectmen had, by defining the limits of the several companies- in the town, included him in another ? It is contended that the selectmen had no power to do this. We have no means of knowing what power was intended to be conferred except by the language used to confer it. According to the best lexicographers, to define means to determine the end or limit, as, to define the extent of a kingdom or country ; and by defining is meant determining the limits. Such we suppose, also, to be the popular meaning of the term, and such is the unquestionable meaning of it in other parts of our statute book. For instance, by the 7th sect, of chap. 117, towns are authorised to determine the number and “ define the limits” of school districts within the same. There can be no doubt but to “ define the limits” here means to determine, to fix, or establish the limits. If such be the meaning, then the selectmen were authorised to extend or curtail the limits of a company, as they might deem it most for the interest of the militia and the convenience of the citizens.

The Legislature might think it expedient to authorise the selectmen, if they found that a person liable to military duty, could perform it with more ease and convenience in a company other than that to which he had belonged within the same town, and that it would be proper to detach him therefrom, so to change the limits of the companies as to give relief. There could be no reason to apprehend that the selectmen would act improperly, and having personal knowledge of the situation of the military companies, and the members thereof, in their respective towns, it might well be presumed that it would promote the interests of the militia and the convenience of the citizens to clothe the selectmen with this power.

The law gave them no authority to increase the number of companies, to establish new ones, or abolish old ones ; that was still retained by the Governor and Council, under the old law. Neither were the selectmen authorised to interfere with the limits of companies raised at large, such as artillery, cavalry, &c. Their authority extended only to companies of infantry, which it is understood, are in every case territorial companies, that is, limited within certain territorial bounds within each town, or corresponding with the limits of the town. Unless this was the intention of the Legislature it is not perceived what could have been the object of the law.

A subsequent Legislature repealed the section under consideration, and in addition thereto, expressly annulled all alterations that had been made under it. If the section had not given the power, the alterations would have been void without the act declaring them so. The necessity of legislative action to restore the limits to what they were before they were changed by the selectmen, could result only from the fact that such change was authorised by the ninth section of the additional act, and consequently binding until annulled by a subsequent law.

It is our wish, as it is our duty, to give such a construction to the statute as we believe, from its language, was intended by those who enacted it. But, as was said by that eminent civilian Sir William, Jones, “ such is the imperfection of human lan- “ guage that few written laws are free from ambiguity, and it “ rarely happens that many minds are united in the same inter- “ pretation of them.”

From the best examination we have been able to give this case, it is our opinion, that Gould, the original defendant, was not on the 13th of September, 1832, by law, liable to perform military duty in the company of which the original plaintiff was clerk, and, therefore, the judgment under consideration must be reversed.