Hyde v. Melvin — 11 Johns. 521

Majority

p. 521

Hyde, qui tam, against Melvin.

NEW YORK,

October, 1814.

Headnote

tWer the suiate^^eiee- «■ 41’) no osscat any part of ing any eiecdays previous forthifpur^e orgTnñng8 °r *hem’ aaa nofe

a defendant sued under thafc section, cannot justify that be acted in pursudeííof lili “lijaect cathat1 the ™arP°pr|t wtb° mentó appear, had not received his warrant, and therefore was not le-raN exLuterih¡H order. It is co defence that the defendant was ignorant of the existence of the ast,

THIS wae an action of, debt, to recover the penalty given by the 25th section of the act regulating elections, (sess. 36. c. 41.) by which it is eiíacted “ that no officer, or other person, shall call out, dr order, any of the militia of this state to appear or exercise on any day, during any election to be held by virtue of this act, or within ten days previous thereto, except m eases of invasion or insurrection, in pain of forfeiting the sum -of five hundred dollars,” &c. The cause was tried before Mr. Justice Platt, at the Cayuga Circuit, in June, 1814.

E. Ward. a witness for the plaintiff, testified that several days previous to the 24th of April, 1813, he received from the J r , defendant an appointment of corporal, and an order, signed by _ - . - rr . i. , the defendant, as captain, directing the Witness to warn a number of persons, belonging to the defendant’s company, to meet on the 24th of April, in the town of Wolcott, for military duty; that the witness, before that day, did warn the plaintiff and others, and that he returned the order to the defendant, together with the names of those whom he had summoned. A notice had been viven to produce the order, which the defendant refused, ° and here the plaintiff rested the cause. The defendant then offered to prove that he made out the or

p. 522

der to call out his company, for the purpose of enrolling, or organizing them only, in pursuance of an order which he had received from his colonel; by which order, the beats of the defendant, and another captain in the same regiment, were assigned, and they were directed “ to enrol, or cause to be enrolled, all the men liable to do military duty in their respective beats, and to have their respective companies organized, fit for duty;” and, by the same orders, certain persons, among whom was Ward, the plaintiff’s witness, were appointed non-commissioned officers. The defendant further offered to prove, that he had no intention to call on any persons to appear on the day specified in the order, for any other purpose than to organize and enrol them, in consequence of the order from his colonel: that the persons named as non-commissioned officers in the defendant’s company, had never received warrants; that Ward was appointed a corporal only, by the defendant, and for the sole purpose of calling out the men-to be enrolled and organized ; that the act on which the suit was brought, was passed on the 29th of March, 1813; that the defendant had no knowledge of the existence of that act, o¿- of any similar law, until the time of meeting, when a few men having appeared, as warned, the act was shown to the defendant, on seeing which he immediately informed the men of it, and told them that they were at liberty to separate; and that the defendant, on the spot, destroyed the order which he had given to Ward.

This testimony being objected to by the plaintiff was overruled by the judge, and a verdict was taken by consent, for the plaintiff, for the penalty of 500 dollars, subject to the opinion of the court on the above case.

S. A. Foot, for the plaintiff.

The only point is, whether the evidence offered by the defendant was properly rejected. The only question for the jury to decide was, whether the defendant had violated the statute, in ordering out his company. It was perfectly immaterial what were the views or intentions of the defendant; besides, his written orders to the corporal were to appear for military duty. It is no excuse for a violation of the express provision of a law, that the defendant acted by the command of another; nor can he be allowed to plead .ignorance of the law.

p. 523

Sill, contra.

Though an act may be within the letter of a statute, yet if it does not embrace those circumstances which it was the object of the legislature to prevent, it is not within the statute.^[1] The intention of the makers of the statute is more to be regarded than tbe words. And this liberal rule of construction is equally applicable to penal statutes.^[2]

The object of the provisions of the militia law was to prevent the electors from being overawed or influenced by military force or power ; or the corruption, by means of military authority, of such soldiers as are electors. In the present case, nothing of this kind was intended or can be supposed. There is not the slightest evidence of any evil intention on the part of the defendant. On the contrary, when informed of the law, he instantly discharged the men who had assembled by his order* Though the word intention is not in the statute, yet it is the evident meaning of its provisions, that the act must be done with an intention to overawe, influence, or corrupt the electors, or for some illegal purpose. It would be extremely hard to subject the defendant, under these circumstances, to so heavy a penalty. Besides, the subaltern officer acted without any warrant or authority.

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

p. 524

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