Carter v. Carter , 12 Me. 285 ( 1835 )

Parris J.

The act of congress, passed May 8, 1792, establishing an uniform militia throughout the United States, provides that there shall be formed for each battalion at least one company of grenadiers, light infantry, or riflemen ; and that to each division there shall be, at least, one company of artillery and one troop of horse. By the law of this state, passed March 8, 1834, which, in this respect, is similar to the act thereby repealed, provision is made for raising these companies at large by voluntary enlistment. As was said by this Court in Bullen v. Baker, 8 Greenl. 390, no man is bound to join any light or volunteer company, or company raised at large, unless by voluntary enlistment, and the proper evidence of such enlistment is the signature of the person enlisting. In order to render an enlistment valid, it is by no means necessary, nor would it be the most proper mode for the person enlisting to sign the record of the roll of the company. He may sign the agreement of association, or the by-laws and regulations of the company and thereby become a member. But his enlistment must be proved. There must be evidence of the proper kind that the individual charged voluntarily became a member of the company; and the company roll, which is the work of the clerk, is not that evidence.

The clerk is required to keep a fair and exact roll of the company, together with the state of the arms and equipments belonging to each man, which roll he is annually to revise on the first Tuesday of May, and correct the same from time to time as the State of, and alterations in the company may require. But the entry of the name by the clerk does not constitute the enlistment: that is effected only by the voluntary act of the person enlisting. He cannot be duly enrolled unless he has voluntarily enlisted, and it has been held that an admission by a person charged, that he had always done military duty in the company and was duly enrolled, was equivalent to direct proof of enlistment. Bullen v. Baker, before cited. But the enrolment itself unaided by any other proof, would not amount to evidence of voluntary enlistment. To prove the enlistment of the plaintiff in error, a paper was introduced in the following words: “ The undersigned do hereby voluntarily enrol ourselves as members of the Augusta Light Infantry, and agree to be governed by its bye-laws and regulations.” This paper bore the names of a number of persons as members of the company, and among them that of the plaintiff in error, who admitted that he signed it on the 5th of March, 1834, at which time it bears date against his name. We have no hesitation in saying that this is sufficient evidence of enlistment, and according to our views of the law comes fully up to all that the statute requires upon this point.

The clerk then proceeded to prove the enrolment, and that was necessary, if the law relating to enrolment applies to companies raised at large. Johnson v. Morse, 7 Pick. 251. To do this he produced the “ record of the roll of the company, as corrected on the first Tuesday of May, 1834.” On this roll, which was attested by the clerk, were borne the names of seventy-five persons as members of the company, and among them that of the plaintiff in error. After the attestation and signature of the clerk, followed sundry other names of persons purporting to have enlisted after the said first Tuesday of May, 1834, the dates of whose enlistments were set against their names. We are to keep in view that enrolment is the act of the clerk, and is distinct from enlistment, which is the act of the individual in uniting with the company. The plaintiff in error contends that the evidence of his enrolment is defective, because the time of his enrolment is not entered on the roll, and he relies on the decision of this Court in Sawtel v. Davis, 5 Greenl. 438. In that case it did not appear by the roll that the person charged had been enrolled so long as to be liable to do military duty in the company, and the Court held that parol evidence was inadmissible to supply the defect. Not so here. The record does show that the plaintiff in error was enrolled as early as the first Tuesday of May, 1834, for his name is borne on the roll as corrected on that day; and this was a sufficient length of time previous to the training which he is charged with having neglected to attend, which was on the 26th of August following.

There are dicta in the opinion of Saw tel v. Davis which have been somewhat modified and explained by subsequent decisions'. The Court there speak of the form of a return of an enrolment, containing a column designated as the one in which the time when any citizen shall be enrolled, is to be entered. We have never been able to find any such form either in the possession of clerks of companies or at the Adjutant GeneraFs office. There is furnished by the Adjutant General a form or blank for the company roll, and a book for the record of such roll, corresponding with each other. But in neither of these blanks or forms is there a column for the entry, of the time of the enrolment of each member. It is only such as are enrolled after the first Tuesday in May, which are called additional enrolments, where the time must be particularly entered. Accordingly we find a column, in the form of a company roll, and in the record oí the company roll, headed “ Time of additional enrolments made after the first Tuesday of May,” and this is the only column in the form for the entry of the time of enrolment. Giving to the form prescribed by the Adjutant General all the efficiency and sanctity which is-yielded to it in Sawtel v. Davis, which is no less than the force; of law itself, and we find nothing that requires a particular entry of the time of enrolment, excepting where the enrolment is subsequent to the first Tuesday of May.

To prove the enrolment of the plaintiff in error, at the time when he was called upon to perform military duty, it was necessary that the roll of the company or the record thereof, as it then existed, should be produced. It was produced, and it affords record evidence that his name was on the roll as corrected on the first Tuesday of May, 1834. If he had been enrolled subsequently to that time, the date of such enrolment should have been particularly entered in the column designated for that purpose. But as his name was on the roll on the first Tuesday of May, no particular entry of the time of enrolment was necessary, or could have been made without adding another column to the form prescribed by the Adjutant General. This is the view we took of a similar question presented- for decision in Potter v. Smith, 2 Fairf. 31, and we feel satisfied of its correctness.

But it is contended that the enlistment of Emerson Carter was void because the commanding officer of the Light infantry company did not give notice thereof to the commanding officer of the standing company within whose hounds the said Emerson resided.

The statute requires that whenever any person shall enlist into any company of cavalry, artillery, light infantry, grenadiers or riflemen, the commanding officer of the company into which such person may enlist, shall give notice thereof, in writing, to the commanding officer of the standing company in which such person is liable to do duty, within five days from the time of such enlistment, and state in such notice, the date of enlistment, otherwise the same shall be void.

In answer to this objection it is replied that Emerson was not an able bodied citizen, and, thorefore not liable to do duty in the local militia. Suppose that a person over the age of forty-five years or an officer who bad held a commission in the militia for the term of five years should enlist into a company raised at large, would it be necessary for the commanding officer of such company to give notice thereof to the commanding officer of the standing ■company within whose bounds the person so enlisting should reside ? Undoubtedly not, because the person enlisted is not “ liable to do duty” in such standing company.

The commanding officer thereof has no interest or concern in his enlistment, as it neither diminishes or affects the standing company. The same principle is applicable to this caso. If Carter, the plaintiff in error, was not an able bodied citizen he was not liable to be enrolled in any standing company of militia, and it was a matter of no concern to the commanding officer of any such company, whether Carter did or did not enlist into the Augusta Light Infantry ; and, as by law, the commanding officer of the Light Infantry is not bound to give notice of Carter’s enlistment to any one except the commanding officer of the standing company in which he is liable to do duty, and as he is not liable to enrolment or to do duty in any standing company, it follows that no notice of his enlistment is required to he given. The law itself as well as the reason of the law both point to this conclusion, This Court has repeatedly decided that a person who is not able bodied is not liable to be enrolled and that it is not necessary for such person to produce the certificate of a surgeon, nor offer an excuse to the commanding officer for omitting to perform military duty, but that, in an action for such omission, he may defend himself at the trial by showing that, by reason of permanent bodily disability, he was not liable to be enrolled. Pitts v. Weston, 2 Greenl. 349; Hume v. Vance, 7 Greenl. 158.

That such was the situation of the plaintiff in error there can be no doubt. In the first place, he admitted it, and made use of the usual remedy for such disability. In the second place, it was proved by distinct, positive testimony.

With such proof before him we do not perceive how the Justice could have decided otherwise than that he, Carter, was not an able bodied citizen. It is unnecessary to go into speculations about the possibility or probability of a cure in such cases of injury, which are known to be always attended with more or less danger. It is sufficient that no surgeon, of experience and reputation, would pronounce a person able bodied while laboring under an injury of the kind proved to exist in this case, and which is know ff to be rarely cured.

We think the Justice had proof sufficient that the plaintiff in error, at the time of his enlistment, was not able bodied within the meaning of the militia law', even without his owm admissions, and it consequently becomes unnecessary to decide upon their admissibility.

We do not intend to be understood as deciding that Carter is to be holden to perform military duty in the Light Infantry, if he be now unable to do so by reason of bodily infirmity. That question is not presented in the exceptions. But we do decide that the proof is sufficient to show' that he voluntarily enlisted and was duly, enrolled, notwithstanding any of the' objections raised in his behalf; and those are substantially, the only questions now submitted to our decision.

We are not to go out of the case, or to decide upon any question not raised by the exceptions; and whether a man w'ho, although not liable to enrolment by reason of bodily infirmity, yet voluntarily enlists into a company raised at large is liable to perform military duty in such company, the infirmity still continuing, is a question not presented by the exceptions or discussed in the argument.

We think the exceptions are not sustained. They are accordingly overruled.