Hyde v. Melvin , 11 Johns. 521 ( 1814 )

Vah Ness, J.

delivered the opinion of the court. Several objections are made to the plaintiff’s right of recovery in this case ; first, that the defendant intended to order out his company merely for the purpose of enrolling it. The words of the act are, “ That no officer, or other person, shall call out, or order any of the militia of this state to appear or exercise, on any day,” &c. so that if it were even competent to the defendant to set up his private views or object in calling out his company, in opposition to his written directions to Ward, this case still comes within the statute. No officer is permitted to order any of the militia even to appear, during any election, or within ten days previous thereto.

Second, it is objected that the defendant acted by command of his colonel. This is no excuse, even if the fact were as alleged, for it would only prove the colonel to be equally culpable. But the order from the colonel does not afford the defendant the least apology. It does not direct him to call out or •order his company to appear or exercise; and even if through ignorance the defendant might so have understood it, it cxmtained no directions as to time.

Thirdly, it is said that Ward had not received his warrant as a corporal, and was not, therefore, legally authorized to execute the defendant’s order. Whether Ward was a non-commissioned officer who had duly received his warrant, is perfectly immaterial. None of the non-commissioned officers in the defendant’s campany had received their warrants, though they had all been regularly appointed. Ward was appointed a corporal, and, in pursuance of a written order from the defendant, warned the plaintiff to appear, equipped according to law, to perform military duty; and the defendant cannot be allowed to set up his not having a regular warrant.

Lastly, it is urged that the defendant was ignorant of the statute, and that he has, therefore, not incurred the penalty imposed, for a violation of what most certainly is a wise and salutary provision in the election law. I notice this objection, only because it is made. Every officer is bound and presumed to know the duties appertaining to his station, and the penalties to which he is exposed. To show, however, that this is probably a mere pretence, I would observe that the 25th section of the present election law (upon which this suit is brought) is an exact copy of the 18th section of the former election law, passed in 1801, so that the law on this subject had, for thirteen years, been just as it was when this transgression was committed, The plaintiff is entitled to judgment.

Judgment for the plaiptjfL