Irish v. Mattison

The opinion of the court was delivered by Royce, J. The case is governed by the militia act of November 1, 1837. In the second section of the first chapter of that statute, “ members of fire companies, to the num- ‘ ber of twenty to each engine, in times of peace only, and * so long as they shall continue members of said fire com- £ pany,” are declared to be exempt from military duty. This section, standing alone, would be quite sufficient to determine the case in favor of the plaintiff. But the first, second and fourth sections of chapter seven, of the same act, must also be noticed. The first section of this chapter authorizes enlistments from the standing companies of militia into the independent companies of light infanty, riflemen, and artillery. The second section enacts, that non-commissioned officers and privates, who shall enlist into any such indepen [384] dent company, shall be holden to service therein until they respectively arrive at the age of forty years, unless discharged from such service by the proper officers. And this obligation to serve is repeated in the 4th section. The question, then, is, whether the second section of the first chapter, which apparently exempts the plaintiff from military duty, is counteracted and controlled by these sections of the 7th chapter. It is argued that this should be the effect, according to certain acknowledged rules for construing statutes :— as that when a general intention is expressed in a statute, and the act also expresses a particular intention incompatible with the general one, the particular intention should be considered in the nature of an exception. And again, — that if the latter part of a statute be repugnant to the former part, it shall stand, and, so far as it is repugnant, be a repeal of the former part; because it was last agreed to by the law-makers. In order, however, to give these rules of construction the effect contended, for, in this instance, we should first be satisfied that the legislature, in these different parts of the statute, had in view the same subject-matter for the law to operate upon: — in other words, that the sections, to which I have referred, in the 7th chapter, may, as probably, have been intended to embrace the persons described in the 2d section of the 1st chapter, as other persons generally. But we think that such a supposition is not justified, upon a full view of the statute. There is no provision in the 7th chapter, expressly extending to the exempts mentioned in the 1st chapter. And when clergymen, magistrates, executive officers, and certain other classes of persons, had been once exempted from military duty by the act, it is utterly improbable that they should have been purposely rendered liable to that duty by another portion of the same statute. It has been decided, in this state, and elsewhere, that persons exempted by law from military duty, are not within the appropriate military jurisdiction. It should, therefore, be presumed, that when the statute had once designated a class of permanent exempts, it proceeded throughout, with a tacit exclusion of those persons from its subsequent provisions. Again, — it is contemplated that the independent companies will be mainly filled up by enlistments from the stand [385] ing companies; but exempts are not supposed to remain members of the standing companies. It is also provided by the 4th section, already cited, that if a person enlisting into an independent company shall neglect, for three months, to equip himself, he may be discharged and turned back upon the standing company ; but an exempt could not be thus turned back, nor compelled to serve in the standing company. Hence, it may be strongly inferred, that permanent exempts are not within the purview of the 7th chapter. It is true, that the plaintiff must be taken to have acted voluntarily in becoming a member of the fire company. But if this should deprive him of his exemption from military duty in an independent company, it would seem that he should be equally deprived of it, had he remained in the standing company. In each case the obligation to serve till a given age is sufficiently express and peremptory. It may be material to remark, that the plaintiff had first enlisted into the independent company. Had he so enlisted when already an exempt as a member of the fire company, the case might, perhaps, deserve a different consideration. Judgment of county court reversed, and judgment for plaintiff to recover $5.25 damages, and costs.