Richardson v. Bachelder , 19 Me. 82 ( 1841 )

The opinion of the Court was delivered by

Weston C. J.

The justice having authorized the attorney to affix his signature to the writ, and having recognized and adopted it as his, it must be taken to be a writ duly signed by him.

We hold the Brigadier General to be a general officer, and as such authorized to administer the oath, prescribed by the St. of 1834, <§>11, and that discharging the duties of that office de facto he must be presumed himself to have taken and subscribed the oaths required by law. He is made by law a certifying officer ; and as such his certificate is to be received as genuine. Fraud or forgery is not to be presumed. It would greatly and unnecessarily increase the expense of these prosecutions, if the original plaintiff were required to go farther back in the chain of testimony. In our judgment the official authority both of the captain and clerk was legally proved.

The limits of the companies in the town of Baldwin were proved by the proper record evidence. Secondary proof on this point was not received. The residence of the plaintiff in error, within the limits of one of the companies so assigned, was proved by the best testimony, of which the fact was susceptible. That the designation of A. and B is identical with first and second, the terms used by the selectmen in their assignment of limits, we think might be proved by parol. They were different names by which the same organized body was known and designated. It had no tendency to produce confusion or to change limits. The assignment by the selectmen was to distinguish the one company territorially from the other. If the companies, thus separated and assigned, afterwards received different names, the limits assigned were not thereby affected.

We are of opinion, that the Stat. of 1834, c. 121, <§> 33, limiting the six months allowed by law to a party liable to do military duty, to provide himself with arms and equipments to the six months immediately succeeding his attaining the age of eighteen, is not inconsistent with the paramount law of the United States, but fairly carries out its true intent and meaning. And we are further of opinion that neither the rights or immunities granted to Bowdoin College, under the authority of Massachusetts or Maine, nor the by-laws of that institution, can legally have the effect to dispense with the military duty required by the laws of the United States.

The connection of the plaintiff in error with that institution was temporary, for the purposes of education. It did not change his domicil, which appears to have been at his father’s house. The government of the United States has the general power, under the constitution to regulate the militia. All laws made under this power, are paramount to those of the individual states. The law of congress, of the eighth of May, 1792, § 1, provides that every citizen, liable to do military duty, shall be enrolled by the captain or commanding officer of the company, within whose bounds such citizen shall reside. This has been held, both in Massachusetts and Maine, to mean the domicil, and not the temporary residence, of such citizen. Stone v. Osgood, 16 Maine R. 238, and the cases there cited. So far as the St. of 1837, c. 276, § 6, may conflict with the act of congress, it must yield to the paramount law.

The Justice must be understood to have decided that the disability, proved by the plaintiff in error, was temporary, not permanent. And such is the conclusion, properly deducible from the testimony. In such case, in order to make the disability available in defence, the party must make his excuse to the commanding officer of the company, within the time limited by law. Pitts v. Weston, 2 Greenl. 349.

The action was within the general jurisdiction of a justice of the peace for the county, where the delinquency happened. Whether the St. of 1837, c. 276, $ 12, limits or restricts that power, may be questionable. But if it does, we are of opinion, that it should have been pleaded in abatement.

In our judgment, none of the errors, relied upon by the plaintiff in error, are well assigned.

Judgment affirmed.