Twombly v. Pinkham

3 N.H. 370

• Court: Superior Court of New Hampshire
• Decided: February 15, 1826
• Status: Published

Opinion

By the court.

The statute of December 22,1820, enacts, that “ all post-officers and stage drivers, who are employ* d “ in the care and conveyance of the mail of the post-office of “ the United States,” shall be absolutely exempted from military duty. 2 N. H. Laws 55.

But it is contended, in this case, that the respondent was not entitled to exemption from military duty, because he had not taken the oath prescribed by the laws of the United States, to be taken by those employed in the conveyance of the mail. The statute of the United States, of April 30, 1810, chap. 54, sec. 2, enacts, “ that the post-master general “ and all other persons employed in the general post-office, u or in the care, custody, or conveyance of the mail, shall, u previous to the entering upon the duties assigned to them, “ or the execution of their trusts, ansi before they shall be u entitled to receive any emolument therefor, respectively “ take and subscribe the following oath,” &c.

“ Every person, who shall be in any manner employed in “ the care, custody, conveyance, or management of the mail, “ shall be subject to all pains, penalties, and forfeitures for “ violating the injunctions, or neglecting the duties required u of him by the laws, relating to the establishment of the “ post-office and post-roads ; whether such person have taken “ the oath or affirmation, above prescribed, or not.”

In general, in these cases, it depends upon the provisions of the statute, which prescribes that an oath shall be taken, whether the officer, who has not taken the oath, is entitled to act, or to receive the profits or enjoy the privileges of his office. 2 N. H. Rep. 202.

The statute of the United States, which prescribes the oath to be taken by those, who are employed in the care, or carriage of the mail, in very express terms declares, that they shall take the oath, before they enter upon the duties, or become entitled to receive the emoluments, of their offices. The word emolument means profit or advantage, and may, in cur opinion, comprehend an exemption from military duty. We are, therefore, of opinion, that a person employed in the conveyance of the mail, who has not taken the oath prescribed, is not exempted from military duty under our statute.

Judgment for the plaintiff.