North v. Appleton

New York Supreme Court

North v. Appleton

12 N.Y.S. 72, 25 Abb. N. Cas. 389, 1890 N.Y. Misc. LEXIS 3562

DecidedOctober 13, 1890

StatusPublished

This text of 12 N.Y.S. 72 (North v. Appleton) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

North v. Appleton, 12 N.Y.S. 72, 25 Abb. N. Cas. 389, 1890 N.Y. Misc. LEXIS 3562 (N.Y. Super. Ct. 1890).

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Opinion

Barrett, J.

It appears that the injunction in this case was not served nor even granted, until after the performance of the act which the plaintiff seeks to enjoin. As, therefore, the alleged injury was already done when the action was commenced, the injunction can have no operation. Upon the merits, however, the plaintiff must also fail. Section 219 of the regulations of the national guard provides that, when an enlisted man is entitled to a full and honorable discharge, his immediate commander may apply for such discharge, without such enlisted man’s consent. Unless this regulation is repugnant to the Military Code, the plaintiff must submit. I find nothing in the Code requiring the enlisted man’s consent to such application. Section 49¹ provides that the commander of the regiment shall, upon a proper certificate of the troop, battery, or company commander, grant the enlisted man a full and honorable discharge. There is nothing here requiring the enlisted man’s consent or request. It is contended, however, that this should be implied from the use of the word “grant.” But such an important limitation upon the commander’s power would scarcely have been left to implication. Had this been intended it would have been natural to make some provision for the method of setting the company commander in motion. Here, the commander of the regiment is to grant the discharge solely upon the certificate of the company commander. There is not a word as to any act of the enlisted man. The word “grant” refers not to the wish of the enlisted man, but to the fact of the discharge, and to the benefit supposed to be attached to its honorable character, to its relief from further service, and its exemption forever from jury duty. Except, therefore, as the word aptly harmonizes with these benefits, it has no greater significance than such words as “give,” “furnish,” or [74]*74“deliver.” This construction is fair to the enlisted man, and important to the state; for the enlisted man is absolutely entitled to his discharge upon the expiration of his term, and it might be a very serious matter for the state, if a large number of such men could continue on at their own unrestrained option, thus keeping the ranks full, and then resign in a body at some critical period. The just rule is that which works both ways. At the expiration of the term of enlistment, it is optional witli the man to retire, and it is also optional with the state to make room for a new and compulsory term of service. The officers in the present case acted within the powers conferred upon them by law, and the injunction should therefore be dissolved, with costs.

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Barrett, J.

It appears that the injunction in this case was not served nor even granted, until after the performance of the act which the plaintiff seeks to enjoin. As, therefore, the alleged injury was already done when the action was commenced, the injunction can have no operation. Upon the merits, however, the plaintiff must also fail. Section 219 of the regulations of the national guard provides that, when an enlisted man is entitled to a full and honorable discharge, his immediate commander may apply for such discharge, without such enlisted man’s consent. Unless this regulation is repugnant to the Military Code, the plaintiff must submit. I find nothing in the Code requiring the enlisted man’s consent to such application. Section 49¹ provides that the commander of the regiment shall, upon a proper certificate of the troop, battery, or company commander, grant the enlisted man a full and honorable discharge. There is nothing here requiring the enlisted man’s consent or request. It is contended, however, that this should be implied from the use of the word “grant.” But such an important limitation upon the commander’s power would scarcely have been left to implication. Had this been intended it would have been natural to make some provision for the method of setting the company commander in motion. Here, the commander of the regiment is to grant the discharge solely upon the certificate of the company commander. There is not a word as to any act of the enlisted man. The word “grant” refers not to the wish of the enlisted man, but to the fact of the discharge, and to the benefit supposed to be attached to its honorable character, to its relief from further service, and its exemption forever from jury duty. Except, therefore, as the word aptly harmonizes with these benefits, it has no greater significance than such words as “give,” “furnish,” or [74]*74“deliver.” This construction is fair to the enlisted man, and important to the state; for the enlisted man is absolutely entitled to his discharge upon the expiration of his term, and it might be a very serious matter for the state, if a large number of such men could continue on at their own unrestrained option, thus keeping the ranks full, and then resign in a body at some critical period. The just rule is that which works both ways. At the expiration of the term of enlistment, it is optional witli the man to retire, and it is also optional with the state to make room for a new and compulsory term of service. The officers in the present case acted within the powers conferred upon them by law, and the injunction should therefore be dissolved, with costs.

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Bluebook (online)

12 N.Y.S. 72, 25 Abb. N. Cas. 389, 1890 N.Y. Misc. LEXIS 3562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-v-appleton-nysupct-1890.