The opinion of the Court was afterwards drawn up by
Sheri,et J.— By the sixth section of the act of 1834, the Governor, with the advice of the council, was authorized to organize and arrange the militia and to grant petitions or applications for raising companies at largo. Such companies were to be raised by voluntary enlistment. The members constituting such a company on its first organization must have been determined, before they could have proceeded to the choice of officers, who were to be chosen in the same manner as those of other companies by the written votes of the members of the company. The tenth section of the act required, *394that the electors or members of the company should have had ten days notice of the time and place of election. More than five days after their membership had been determined by enlistment or otherwise must have elapsed before a commanding officer could be legally chosen. And although he would become an officer, as soon as he had been elected and accepted, and when commissioned would take rank from that day; yet by the provisions of the eleventh section he could not enter upon the performance of his duties, until he had been commissioned and qualified. It would ordinarily require more than five days after his election to have the proper return thereof made to the Governor and to have the commission returned to him through the prescribed channel. If the members of the company on its first organization were necessarily enlisted before the choice of the commander, it would usually be impossible for him to give the notice required by the nineteenth section to the commanders of the standing companies within five days after their enlistment. And if a new enlistment after he was chosen and commissioned should be required to enable him to comply with such provision, the effect must be to dissolve the company at the pleasure of the members; for the first enlistment or form of membership would not be binding upon them without such a notice. It cannot be believed to have been the intention of the legislature to require an act, which could not possibly be performed without a dissolution of the company, which had been just organized and had elected its officers. The provision contained in the nineteenth section requiring the notice from the commander of the company raised at large to the commander of the standing company, implies the existence of an organized company and of a commander at the time of enlistment; and it would seem therefore not in terms applicable to the case of an enlistment before the election of any officer. That a voluntary agreement, signed by the persons to constitute the company without any engagement with any officer, would operate as a legal enlistment, appears to have been decided in the case of Carter v. Carter, 3 Fairf. 285. lit was obviously proper, if not neces*395sary, that the commander of the standing company should have information of the names of the persons belonging to his company, who had become members of a company raised at large on its first organization. And this may have been one of the reasons, why the commander in chief required notice to be given to such officer before he would proceed to organize a company raised at large. It is true, that the nineteenth section of the act speaks of an enlistment, by an officer of a company raised at large “ for the purpose of forming or recruiting his company.” But if by the word forming, a first designation of members to form such a company were intended, the implication would be, that the officer existed before the members first composing the company were determined. The intention doubtless was only to declare that, all enlistments when and however made should be void, if thereby the standing company should be reduced to a less number than forty effective privates. It appears, that the son of the plaintiff in error was one of those, who composed the company on its first organiza* tion, and that he enlisted on the day when the officers were first chosen. Notice of such an enlistment within five days being ordinarily impossible, the statute is not considered as requiring it; and the judgment of the magistrate is reversed.