Nickerson v. Howard , 25 Me. 394 ( 1845 )

The opinion of the Court was drawn up by

Whitman C. J.

This is a writ of error, brought to reverse the judgment of the judge of the police court, of the city of Bangor. The first error assigned, and relied upon in argument, is, that the.action, in which the judgment was rendered, was instituted by the plaintiff therein, to recover a fine against the plaintiff in error, incurred, if ever, while there was a clerk of the company, in not attending a company training, in which the supposed offence consisted, actually in office; and, although that clerk had resigned before the penalty could have been sued for, yet that action was commenced by the plaintiff therein as commander of the company before a new clerk had been appointed. In this we think there was no error. By the statute of 1834, c. 121, ■§> 45, it is provided, “ if there be no clerk to prosecute as aforesaid, the captain, or commanding officer of the company, shall prosecute for said fines.” This provision is comprehensive and explicit. How the vacancy in the office of clerk occurred would seem to be immaterial. Whether the offence occurred or not, while there was a clerk in office, would seem to be equally immaterial. If at the time the suit was required to be commenced, the office were found vacant, the commanding officer was bound to commence the suit. Nor does the act of 1837, c. 276, abrogate or affect this provision. Sections 3 and 9 of that act merely make further provisions in reference to the collection of fines ; and is in addition to the act of 1834, and in its provisions for the collection of fines is not inconsistent with that act.

The second error assigned, and relied upon in argument, is, that the defendant in error was not the commandant of the company, and therefore could not sue for the fine. It appears that he was the ensign of the company, duly elected and qualified, and, for a year previous to the commission of the offence, had commanded the company by virtue of his authority as such ensign; and in pursuance of a special order for the purpose from the colonel of the regiment, to which the company belonged ; and no one appeared to interfere with him in such command. The order of the colonel could not be disobeyed without the hazard of being punished for such disobedience. Obedience to superiors in the military line is one of the first duties. The colonel was to be presumed to have good reasons, whether he condescended to assign them or not, for his mandate. The defendant in error finding no oificer superior in rank to himself, offering to command the company, would clearly have been inexcusable, if he had hesitated in his obedience. And no private in the company, certainly, after the defendant had so exercised the command for over a year, could be excusable for refusing submission to him as such commandant.

We dismiss from our consideration whatever was introduced at the trial, in reference to the court martial, convened to try the former captain of said company, and in reference to the discharge of the former lieutenant thereof, as having been irrelevant.

This brings us to the conclusion, that there was no error in the proceeding or judgment of the Court below; and the judgment there is affirmed; with costs for the defendant in error in this Court.