Gilman v. Morse

The opinion of the court was delivered by Collamer J. — This is an action of trespass for property, taken on an execution signed by the defendant, as commanding'officer of the 16th regiment of Vermont militia. It rests on a case stated and agreed upon by the parties, by which it appears that the plaintiff was delinquent of duty, at the annual company training, in June, 1838. This was in a company, and in a regiment, regularly organized under the statute of 1818, and no new organization took place under the statute of 1837, until July 1838. The principal question therefore is this; was there any existing militia company in May and June 1838? Under the act of 1818, the whole militia of Vermont was organized into divisions, brigades, regiments and companies. In 1837, an act was passed “ for regulating and governing the militia.” By the 17th section, xv chapter, of that act, all former acts regulating and governing the militia were repealed. It is now insisted that this dissolved the whole militia of the state into its primitive elements; that its whole organization absolutely and immediately ceased and it was disbanded. As a general rule the repeal of a law puts an end to that which was created directly by the law itself. But when a matter is authorized by the law to be done, and it is done, and rights and duties of a public or private concern, are thereby created and accrue,, they are not undone nor affected by a repeal of such law. The repeal of a law under which a legal settlement has accrued does not affect such-settlement. [553] The repeal of a law of conveyances does not destroy any titles obtained under it. The repeal of a law giving jurisdiction to a court does not annul its judgments or decrees." The statute of 1818, by itself, made no organization of the militia. It created no regiment or company. It authorized certain persons to make an organization. The organization then was not made by the law, but, under that law, regiments and companies were formed and they would therefore continue, notwithstanding the repeal of the law. The statute of 1837, “for regulating and governing the militia,” found an organized militia on which to operate and which it would regulate and govern until some different organization was actually perfected under such law itself. Such would be its effect, notwithstanding the repealing clause, and such, it is to be presumed, was intended to be its effect, unless the general or particular provisions of the law itself are inconsistent with this view. On examination of the statute of 1837, so far from finding its provisions inconsistent with this view, I think it obvious that it was never contemplated that the militia was to be considered as disbanded or disorganized, but that the divisions, brigades, regiments and companies retained, and were all to retain, their existence until a new arrangement was actually made under the new statute. The 2d chapter directs an organization by commissioners to be appointed by the Governor. This, until actually carried into effect, could not produce a disbanding of the militia. By the 14th section, chapter xv, this,board of commissioners are authorized to disband independent companies. This shows they were not already disbanded by law. They also had power to alter the limits of divisions, brigades, regiments and companies. But if, by the repeal, all such ceased to exist, then there would have been none to alter. All were to be made. It was further provided that if by reason of the alterations, any two officers of the same grade were thrown together, the junior became a supernumerary. This shows he was in command until rendered supernumerary by the alteration when made. By the first proviso to that section, the board were prohibited from disbanding any company of artillery, light infantry or riflemen, who had their complement of men. Most clearly then they were not disbanded by the law, already, but still [554] held and were preserved in existence, notwithstanding the repeal of the law under which they were first organized* The whole law could and well did go into operation on the existing militia until a new organization was made, under the 2d chapter, and a view of the whole statute and its particular expressions and provisions is consistent with no other hypothesis. There is another view of this subject in confirmation of the same principle. In the constitution of the United States, article 1, section 8, in enumerating' the powers of congress, is this clause; “ to provide for organizing, arming and., disciplining the militia and governing such part as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by congress,” Here the power of organizing the militia was vested in congress. In 1792 they exercised this power by passing a law “establishing a uniform militia throughout the United • States.” This provides who shall compose the militia, how enrolled, officered and equipped,&c.; that they shall be divided into divisions, brigades, regiments and companies as the legislature shall direct. By that act the legislatures of the states were authorized to proceed and organize the militia, and it was by that act of congress the organization was created and upheld. Though the legislature might, from time to timé, new-model and recast the arrangement of the parts, yet the basis of all was the act of congress under the constitution ; and without the repeal of this act of congress, the militia, which had been organized under it, could not be disbanded. The state legislature could no more disorganize or disband the militia, which it had organized, by direction of congress, under the constitution, than the board of officers could disorganize it after having completed their duty of organization under the act of the legislature. The states, severally, cannot thus destroy this branch of the national defence, nor do we think our legislature intended or attempted so to do. Calvin Wright was, then, in June, 1838, commanding captain of the company of which the plaintiff was a member, bound to do duty. By neglect of that duty in that month, the plaintiff incurred the penalty provided for such delinquen [555] cy, in the statute of 1837. That penalty, by that law, was to be enforced by a regimental court martial, and it was so done. It is now insisted that inasmuch as that regiment was not organized until July, 1838, the plaintiff could not be subject to its jurisdiction for a delinquency in June previous. It is not necessary that a court should exist at the time a cause of action accrues, in order to have jurisdiction thereof, nor that the geographical limits of such jurisdiction should have been then defined, and included the party. If a man has been visited with a duty or incurred a penalty, under the law, he is liable to the jurisdiction which then or afterwards may be created, by law, clothed with jurisdiction of the case. If a new court is created, it is no objection to its jurisdiction that the cause of action arose before the court was organized. If the geographical limits of the jurisdiction of a court be changed, it will take jurisdiction of all local causes within its new jurisdiction, though the cause of action arose previously. The plantiff had been guilty of a delinquency and incurred a penalty in June, 1838, under the law of 1837. In July, 1838, a court was organized which had jurisdiction of such penalties and over that section or limit. That court had jurisdiction of the plan tiff’s case and it is no objection that the court did not exist in June. Judgment for defendant.