Folsom v. Perkins , 21 Me. 166 ( 1842 )

The opinion of the Court was by

Shepley J.

— The non-commissioned officers of companies are to be appointed by the captains of their respective companies, who are to make return thereof to the commanding officer of their repective regiments or battalions; who is to grant them warrants. St. 1834, c. 121, § 8. When there are two companies of artillery in a brigade they are to form a battalion, and are entitled to a major. <$> 17. The clerk must be one of the sergeants. $ 12. It has been decided, that the clerk must prove, that he had received a warrant from the proper officer as a sergeant, and had been legally appointed and qualified as clerk to enable him to maintain a suit for a fine. Burt v. Dimmock, 11 Pick. 355; Tripp v. Garey, 7 Greenl. 266. In this case the clerk produced a sergeant’s warrant granted by the brigadier general, when there were two companies of artillery at that time, forming a battalion, and under the command of a major.

It is contended, that the commander of the brigade might legally grant the warrant by virtue of the nineteenth section, which provides, that companies raised at large shall be subject to the commanding officer of the brigade,- in which they are raised, and shall make their elections of officers in the same manner as other companies, but shall make their returns of elections to the commanding officer of the brigade. There is nothing in that section inconsistent with the provisions of the eighth section. The elections referred to in the nineteenth, are those of the commissioned officers of the company and not the appointments of non-commissioned officers, the returns of which are required by the eighth section to be made to the commanding officer of the regiment or battalion. If the warrant were not regularly granted, it is said, that the commander of the battalion has acquiesced in and ratified the act; and a remark made in the case of Rollins v. Mudget, 16 Maine R. 340, is relied upon as authorizing such a conclusion. It is there said, that “no disapprobation of this appointment on the part of the colonel appears, and the silence after this intelligence may well be deemed a ratification.” In that case the warrant had been signed by the colonel in blank and delivered to the captain to be by him delivered to the person, whom ho should appoint sergeant. And the ratification was applicable only to the delivery to the person holding it of a warrant issued from the proper “officer. The case does not authorize the conclusion, that a person without a warrant, issued by an officer authorized to grant one, could by the acquiescence of his superiors become a legal non-commissioned officer. If the clerk be not legally authorized to maintain the suit, the counsel contends, that the commanding officer of the company is authorized by the act'of 28th of May, 1837, c. 276, <§> 9, to appear and prosecute it. That section applies to cases, where actions have been commenced by a clerk legally appointed, who “shall die, resign, or refuse, or in any other way be disqualified to prosecute said suit,” and not to cases, where there was no legal authority to commence them. The defendant in error failed to prove, that he had received a warrant as sergeant from an officer entitled to grant it, and he could not be legally appointed .clerk. Judgment reversed.