Smith , 20 Mass. 385 ( 1825 )

Putnam J.

delivered the opinion of the Court, The petitioner is obliged to perform all the services in his power, which are required of soldiers in the militia, from the performance of which he has not been excused. From the great importance which has always been attached to this subject by the legislative and executive branches of the government, we are warranted in the opinion, that the exemptions should be strictly construed ; to the end that the public may receive the benefit of all the services which the soldier can render.

The petitioner claims to be exempted on account of an injury which has happened to one of his limbs ; which would render it difficult, if not impossible, for him to perform all the military manoeuvres which are executed by the soldiers, but would not prevent him from walking or writing.

The meeting which the petitioner neglected to attend, was not for the purpose of training, but merely for the choice of officers ; and he was as able to do that duty, as any one whose name was borne upon the company roll. But it is argued, that the surgeon’s certificate operates as a disenrolment. There is no necessity for giving that enlarged construction to the statute, or for believing that the legislature intended to excuse the party from doing what he was capable of executing, merely because they excused him from doing what the surgeon certified he was incapable of performing. He might well meet and vote, notwithstanding be might not well march or handle a musket. Our opinion is, that the legislature intended to exempt the party from the performance of such services only as he was disqualified by reason of such bodily infirmity to perform, but not from such as he could execute just as well as if his limbs were in perfect health and proportion.

And it is to be observed, that the meeting for the election of officers is one of great importance ; for the discipline and efficiency of the soldiers depend essentially upon the qualifications of their commanders. These are to hold their offices until discharged by order of law, and the public have a right to the exercise of the judgment of all the soldiers qualified to vote in that important concern. To extend the excuse to cover the neglect of the petitioner, would be to enforce the letter against the intent of the statute.¹

We are all of opinion, therefore, that the petitioner shall take nothing by his petition.

1 See Revised Stat. c. 12, § 2