Hall v. Howd , 10 Conn. 514 ( 1835 )

Waite, J.

By the provisions of the statute of this state “ for forming and conducting the military force,” the commanding officer of a militia company is empowered to impose a fine upon any non-commissioned officer, musician or private, of his company, who neglects to perform military duty, when lawfully required; and after having given him due notice, if the fine is not paid and no appeal taken, may issue his warrant, under his hand, for the collection of such fine. It is apparent, from the statute, that no person but the officer imposing the fine, has any authority to issue the warrant.

In this case, the defendant Howd, as captain of a company, issued two warrants, directed to a constable, commanding him, of the goods and chattels of the plaintiff, to levy and collect two fines, imposed upon the plaintiff, for not performing military duty in the company; and for want of such goods and chattels, to take the body of the plaintiff, and commit him to gaol. By virtue of these warrants, the defendant Austin, as a ■constable, with the assistance of Bartholomeiv, the other defendant, arrested the plaintiff, and committed him to prison. For these acts of the defendants, the plaintiff brings his action ; :and the question now is, whether they can be justified in their proceedings: in other words, whether the warrants set forth in the motion are such as the defendant Howd had a right to issue, and the other defendants to execute. For if the warrants are void, Austin and Bartholomew, who acted under them, in committing- the plaintiff to gaol, and Howd, who commanded them to do the act, are unquestionably trespassers.

The first enquiry, therefore, is, whether Howd had authority to issue such warrants. It is a well established principle, that when a magistrate or other officer, having a special and limited jurisdiction, issues a warrant to take the person or property of another, he must shew, upon the face of his proceedings, that he has jurisdiction. Nothing will be intended in his favour. It must appear, that he has jurisdiction over the subject matter, the person, and the process. Grumon v. Raymond, 1 Conn. Rep. 40. Tracy v. Williams, 4 Conn. Rep. 107.

In the case of Wickes v. Clutterbuck, 2 Bing. 483. (9 Serg. & Lowb. 49.) it was hoklen, that if the warrant of commitment, did not show an offence, over which the magistrates who issued it, had jurisdiction, an action of trespass lay against him, for the commitment, although there might have been a previous regular conviction. Best, Ch. J., remarked, that it was not perhaps necessary, that the offence should be stated with the same precision, in the warrant of commitment, as in the conviction ; but enough should be stated to shew an authority to imprison, and without such a statement, the officer could not arrest.

In the case of The King v. The inhabitants of Chilverscoton, 8 Term Rep. 178. where two justices made an order for the removal of a pauper and his family, and having mentioned, in their order,.two counties, Warwick and Coventry, after-wards described themselves as justices of the peace for the county aforesaid, without designating which of the counties, although it was admitted, that if they had been justices of the -county of Warwick, and had so described themselves, their -order would have been good ; yet as it did not appear upon the face of the order, that the justices who made it had jurisdiction, it was holden void. A similar decision was afterwards made, in the case of The King v. The inhabitants of Moor Critchel, 2 East 66.

An action was brought to recover a fine imposed by a court martial in Massachusetts. The judge, in giving the opinion* of the court, remarked that a court martial was a court of limited and special jurisdiction. The law would intend nothing in its favour. He who sought to enforce its sentences or justify its judgments, must set forth, affirmatively and clearly, all facts necessary to shew, that it was legally constituted, and had jurisdiction. Brooks v. Adams, 12 Pick. 441.

So in Starr v. Scott, 8 Conn. Rep. 480. this court held, that a certificate of the commissioners upon an insolvent debtor’s estate, which did not contain an averment that they had given the notice, which, by statute, they were required to give, was void, and afforded no protection to the debtor, or the sheriff, who, in that case, had suffered the debtor to depart from prison.

In the warrant under consideration, it is not stated, that the fines, which the constable was commanded to collect, had been imposed, by the officer, who issued the warrants. It is, indeed, stated, that the fines had been legally imposed, but by whom, does not appear, either from the warrants themselves, or by reference to any record or proceedings whatever. It is true, they are signed by Howd, as captain of the company. But the neglect charged upon the plaintiff, took place, in one instance, more than seven, and in the other, more than eleven months, prior to the date of the warrants. Although Howd might have been the captain, at the time of issuing the ‘warrants, it does not necessarily follow, that he was the commanding officer six months or a year previous. But whether he was or was not, the law, in a case like this, will not intend, that the fines were imposed by him, in the absence of any averment of that kind. The form of a writ of execution, prescribed by statute, states before what court the judgment was obtained ; and also refers to the records. In practice, it is believed, the form, in these" particulars, is invariably adopted. So in the form prescribed of a warrant for the collection of a rate, it is stated by whom the tax was imposed.

The omission in these warrants of an averment that the fines were imposed by Howd, who issued them, is an omission to shew bis jurisdiction; and can neither be justified upon principle nor by usage. The warrants, therefore, are void, and afford no justification to the defendants.

This view of the subject renders it unnecessary to consider the other objections that have been urged against their validity.

The charge of the court to the jury was erroneous; and a new trial must be granted.

The other Judges concurred in this opinion.

New trial to be granted.