Opinion
March Term, 1861
Charles W. Sandford and Lucius Pitkin, for the appellant.
William F. Howe, for the respondent.
For the proper determination of the question, whether the defendant's election to the office of colonel is legal and valid, it is necessary to refer particularly to certain provisions of the general law providing for the enrollment of the militia and the organization of uniform corps and the discipline of the military forces of the State, passed April 17, 1854 (ch. 398); the act in relation to the first division and fifth brigade of the New York State militia, passed April 14, 1855 (ch. 536); and the act to improve the discipline and promote the efficiency of the military forces of this State, passed April 8, 1858 (ch. 129).
By the general law of 1854 (§ 1, tit. 9), the commander-in-chief was authorized to establish and prescribe such rules, regulations, forms and precedents as he should deem proper for the use and government of the military forces of this State, and to carry into full effect the provisions of that act. Such rules, regulations, forms and precedents were to be published in orders by the Adjutant-General, and from time to time distributed to the commissioned officers of the State. The commander-in-chief, in pursuance of the authority so conferred on him, established and prescribed certain rules and regulations, which, on the 6th of April, 1858, were promulgated and published by the Adjutant-General, in a general order of that date, and were subsequently, by the 14th section of said act of April 8, 1858, made "part of the acts for the government of the military forces." It is provided by section 693 of those rules and regulations, that, "to be eligible to election or appointment to office in the military forces of this State, the person must be a white male citizen of the United States, of the age of eighteen years or upwards, and a resident of the proper military district, city or village, agreeably to law;" and by the previous section (§ 692), it is declared that "the election or appointment of an ineligible person is entirely void, and he is not entitled to be commissioned." These provisions were in full force at the time of the defendant's election. It then becomes material to inquire whether he was "a resident of the proper military district, city or village, agreeably to law." By the general law (tit. 4, § 3), it was enacted that the division, brigade, regimental and company districts, as then organized, should continue to be and remain as the military districts of the State, subject, however, to such alterations or consolidations as the commander-in-chief should, from time to time, see fit to make; and, by section 20 of the same title, it is provided that "all commissioned officers, residing in any city or incorporated village in this State, shall be deemed to be within the bounds of their respective commands, providing any part of the military district to which they properly belong shall be located within such city or village." It is a conceded fact, in this case, that the first regimental district, at the time of the defendant's election to the office of colonel, comprised the first and second wards of the city of New York, and that he, at that time, was not a resident within either of those wards. Such non-residence, however, would not have made him ineligible if he had resided in any part of that city, inasmuch as that military district was located therein, and he would then have been a resident of the proper military bounds or territory prescribed by section 693 of the regulations referred to. The residence required, as a compliance with that regulation, must be either within a military district as specifically defined and designated, for which an election is to be held, or within a city or village in which the district, or a part thereof, is situated, although such residence is not within the territorial bounds of the district itself. This construction is in harmony with, and gives effect to, the provision of section 20 above cited, to which, in my opinion, reference was had in framing and prescribing that regulation. The defendant, however, was not a resident of the city of New York, and, consequently, was not eligible to the office to which he was chosen, unless the provisions to which I shall now refer have made him so. It is provided by those regulations (§ 702), that "commissioned officers will be considered as having removed out of the bounds of their commands and vacated their offices (unless otherwise provided by law), under the following circumstances, viz.: major-generals and their staffs, on removing beyond the bounds of their respective divisions; brigadier-generals and their staffs, on removing beyond the bounds of their brigades; field-officers and regimental staff, on removing beyond the bounds of their regiment; company officers, on removing beyond the bounds of their company, except when the company is made up from the different districts, and then, upon removing from the regimental district;" and it is declared, by section 65 of the act in relation to the first division and fifth brigade of the New York State militia, passed April 14, 1855, before referred to, that "any officer, non-commissioned officer, musician, or uniformed private, who may change his residence, from within the bounds of said division into any adjacent county, or from within any county adjacent into the said division district, shall not thereby vacate his office or post; but he shall be held to duty in the division, brigade, regiment, troop, or company to which he was attached at the time of such change of residence, and he shall be subject to duty therein, and shall be entitled to all privileges, immunities and exemptions allowed by law, and shall be liable to fines and penalties and the collection of them in the same manner as if such change of residence had not taken place." It is claimed by the defendant that the effect of these provisions, when a commissioned officer in that division removes into an adjacent county, is, not only that he retains his office or post, but also that he is not considered as having removed out of the bounds of his command. That position cannot be maintained. It is true that an officer, by such change of residence, does not vacate his office or post, but, on the contrary, he is held to duty, and is entitled to all the privileges, immunities and exemptions allowed by law, in the same manner as if such change of residence had not taken place. Such is the evident meaning of section 65; but no color is thereby given for the construction that he is still to be considered as resident within the bounds of his command. It was doubtless understood, when that section was enacted, that changes to and from the bounds of the first division district and the counties adjacent thereto were frequent, and it was apparent that such changes, if permitted to produce a vacancy and an exemption from duty in the military body from which the removal was made, would seriously impair its efficiency. That result was, therefore, avoided by declaring that such change did not relieve from the duty which the office or post then held enjoined, nor take away the privileges, immunities and exemptions which the performance of such duty conferred. The provision, however, related only to the duty or post then held, and the privileges, immunities and exemptions then allowed by law. While, therefore, the removal of the defendant did not forfeit or vacate his office of staff officer, he did not, by the reservation of the right to hold it and the privileges appertaining thereto, also acquire the right of an election or appointment to another office, or any new right; and he could not be held to duty in any other office or post than that then held by him. It has been suggested that one of the privileges reserved was the privilege of promotion. That, in my opinion, is a misapplication of the term. The privileges to which the party is entitled are stated to be those "allowed by law:" they are such as can be claimed of right, and are not dependent on the favor or will of others. Many privileges, immunities and exemptions are given and granted to the members of the first division, by the provisions of the law under which it was organized. It is to such that a person, who continues to serve after a change of residence, shall be entitled, and to such only. This is the fair and ordinary meaning of the language used; and that it was intended to be so understood is apparent from the provisions of section 86 of the same act, which provides that the fifth brigade district of the militia of this State "shall possess all the privileges and exemptions, and be subject to all the duties and service, granted and imposed to and upon the first military division;" showing that privileges and exemptions previously specified were contemplated.
The preceding views lead us to the conclusion that the defendant was, after his removal to Queens county, ineligible to the office of colonel to which he was chosen.
The judgment of the Supreme Court must, therefore, be affirmed.
COMSTOCK, Ch. J., DAVIES, JAMES, and HOYT, Js., concurred.
To arrive at a just conclusion in this case, it is necessary to collate several statutory provisions and military regulations, and to ascertain their combined effect. The commander-in-chief of the military forces of the State having been authorized by the act passed April 17, 1854, to establish rules, regulations, forms, c., for the use and government of those forces, and having, pursuant to this authority, prescribed a body of rules for that purpose, these rules are, by section 14 of the act of April 8, 1858, made a part of the military laws of the State. Section 693 of these rules provides as follows: "To be eligible to election or appointment to office in the military forces of the State, the person must be a white male citizen of the United States, of the age of eighteen years or upwards, and a resident of the proper military district, city or village, agreeably to law."
Were it not for the last words of this section, the inference from its provisions might be that it was designed to exclude from eligibility all persons not residing within the district in which the particular military corps in which the election occurs is located; in other words, to require that, to be eligible to a company office, they must reside within the limits of the company, or, to a regimental office, within the limits of the regiment, c. But the words, "agreeably to law," imply the existence of other legal provisions on the subject, and refer the question of eligibility entirely to these provisions. It becomes necessary, therefore, to see what other statutory provisions there are, bearing upon the question.
Upon the 14th of April, 1855, an act was passed in relation to the first division and fifth brigade of the New York State militia. Section 65 of this act is in these words: "Any officer, non-commissioned officer, musician, or uniformed private, who may change his residence, within the bounds of said division, into any adjacent county, or from within any county adjacent into the said division district, shall not thereby vacate his office or post, but he shall be held to duty in the division, brigade, regiment, troop or company to which he was attached at the time of such change of residence, and he shall be subject to duty therein, and shall be entitled to all privileges, immunities and exemptions allowed by law, and shall be liable to fines and penalties, and the collection of them, in the same manner as if such change of residence had not taken place; and process for the collection of such fines and penalties may be executed in either New York or any adjacent county."
Section 693 of the military rules is made, by its terms, entirely subordinate to this statutory provision; and, as there does not appear to be any subsequent statute conflicting in this respect with the act of 1855, the whole question turns upon the interpretation to be given to section 65 of the latter act. By the construction put upon this section by the learned judge before whom the cause was tried, while an officer of a regiment in the city of New York, by removing from the city into an adjoining county, does not forfeit his office he, nevertheless, thereby renders himself ineligible to any other office in that regiment, or, unless the removal is to the county of Richmond, in the division to which such regiment belongs.
I find it somewhat difficult to reconcile this construction with the terms of the provision, or with what appears to have been its object. It secures, in express terms, to persons so removing, all the privileges which appertain to them as members of the corps to which they belong at the time of their removal. Eligibility to office is a privilege, and, among military men, is apt to be considered as not the least among the many privileges they enjoy. If military men in the city of New York, by removing into the suburbs of the city, within the limits of an adjoining county, thereby render themselves incapable of promotion, while, at the same time, they are compelled still to do duty in the city, they would be deprived of a privilege which, undoubtedly, many of them consider valuable.
One object of the provision in section 65, confined, as it is, to the first division of the militia of the State, seems to me to have been, to meet the exigencies of those who are engaged in business in the city of New York, but who, nevertheless, have their residences without the bounds of the city, in some one of the adjoining counties. Whether the defendant in this case belongs to this class or not, is immaterial. The construction put upon the section would necessarily include them all.
The words, "shall not thereby vacate his office or post," are not the only operative words of the section; nor is it to be inferred that they embrace its sole, or even its principal object. It provides that the person removing "shall be held to duty" in the corps to which he belongs; and, again, that he "shall be subject to duty therein." Its object, very plainly, was not merely to confer a favor upon officers by saving to them their offices. It applies to privates as well as officers, and compels all alike to continue to do duty in the corps to which they are attached; subjecting them to the same fines and penalties as if they had not removed. As, therefore, it imposes all the burdens existing before the removal, is it not fair to infer that it intended to preserve all the corresponding privileges, especially when this is the import of its language?
If the statute operated upon officers alone, there would be more plausibility in saying that it was simply intended to prevent a forfeiture of their offices; although there would be very little propriety, even then, in compelling a man to serve in a subordinate office, and, at the same time, depriving him of all power of obtaining advancement. But there would be still greater injustice in obliging privates to continue to do duty in a corps in which they can have no hope of promotion. The design of the statute must, I think, have been, in part, to prevent changes in the ranks of the various military corps of the city, by removals from the city simply into the adjoining counties, or from those counties to the city, and to preserve to the individuals so removing their military status, whatever it may be, with its privileges as well as its duties alike undiminished.
It follows from these views that so much of the judgment of the Supreme Court as adjudges that the defendant Smith has usurped and unlawfully held and exercised the office in question, is erroneous and should be reversed.
DENIO, J., concurred in this opinion; MASON, J., expressed no opinion.
Judgment affirmed.