It appears from the bill of exceptions, that the plaintiff in error was a captain of a militia company, and on the trial before the county court, he claimed that the defendant in error, was a sergeant of that company, residing within its limits, and having neglected to perform military duty, the plaintiff imposed a fine upon him and issued his warrant for the collection.
The defendant claimed an exemption from that duty, by reason of his enlistment into a fire company ; and that in consequence the plaintiff in error became a trespasser, by imposing the fine, issuing the warrant and arresting the defendant.
The court instructed the jury, that the plaintiff in the original suit being a member of a fire company, doing duty therein, the fact of his being a sergeant in the military company made no difference; the law exempted him from the performance of military duty; and the defendant below was liable for the injuries complained of. Was this instruction right ?
1. It appears from the acts of congress and of this state for forming and conducting the military force, that it is made the duty of every captain to enrol every free, able-bodied, white male citizen, between the ages of eighteen and forty-five, residing within the bounds of his company, except such persons as are by those acts exempted, and to notify him of his *204enrolment. The person so enrolled, becomes liable to per- - form military duty in the company, and the captain is authorized to impose a fine upon him for a neglect of that duty. A right of appeal is, however, given from the decision of the ^captain.
It is provided, that “no action shall be sustained against any officer for imposing a fine for neglect of appearance, or deficiency in arms or accoutrements.” Stat. tit. 67. sec. 26.
Was not the instruction given contrary to the provisions of that act ?
It is insisted, by the defendant in error, that this exemption applies only to actions brought by members of the company, generally liable to perform military duty; and not to actions brought by persons entirely exempt; and that,"as the defendant, by enlisting into the fire company, became exempted from such duty, he was beyond the jurisdiction of the captain, and is not to be affected by the statute.
This construction might be correct, were the language of the statute as it formerly was. In the act contained in the edition of 1808, it was, provided, that no person subject to military duty, on whom a fine was imposed, should have any other remedy, except such as was provided in that act. Tit. 112. sec. 21. But, in the revision of the statutes in 1821, we find a materia! change in the phraseology of the statute. Instead of merely depriving persons subject to military duty of the right to resort to actiops at law, the statute was made as it now is, and provides, that no action shall be maintained against any officer.
We think there is good reason for the present provision of the statute. A captain may very properly enrol a person as a member of his company, knowing, at the time of his enrolment, that he is liable to perform military duty. It wou^d seem reasonable, therefore, if such a member, by an act of his own, as an enlistment into a fire company, should subsequently acquire an exemption, he ought to show it either to the captain himself, or some superior officer, on appeal. The captain might not otherwise know of the exemption; and it would be hard upon him, to make him a trespasser for doing an act, which he believed he was required by law to do.
The person fined is not, in such case, without remedy. For if the captain, upon being informed of the enlistment and *205consequent exemption, should refuse to abate the fine, he has ■ the right of appealing to a superior tribunal. And this . , • , , . ,1 . of appeal is given to those who are not, as well as to those who are, liable to the performance of military duty. Stat. of 1835, sec. 9.
But it is asked, has a captain a right to impose a fine upon an infant, an old man, or a woman, and, if no excuse is shewn, issue his warrant and collect the fine? The answer is obvious. The captain had no right to enrol such person in his company ; and could not, therefore, bring the person under hisjurisdiction.
Here it is claimed, that the defendant in error was a merm\ ber of the company, and would have continued such, were it not for his enlistment into a fire company. It would seem to be reasonable, therefore, that when a person is a member of a militia company, and would continue liable to do military duty therein, and be subject to a fine for neglecting it, and dqes some act, such as enlisting into a fire company, by which he claims an exemption from that liability, he should, when notified that he is fined, shew his excuse to the captain ; and if he neglects to do that, and does not appeal, he ought not to be allowed to resort to his action at law. And such, in our / opinion, is the fair construction of the statute.
2. It is further insisted, by the defendant in error, that the statute exempting military officers from suits at law, is unconstitutional and void. We do not so understand the constitution. It was never intended to deprive the legislature of the power of constituting military tribunals for the trial df military offences. This case is one peculiarly of that character. The defendant in error was fined for not doing duty in a company of which it was claimed he was a member. Whether he had so conducted as to discharge himself from his liability to pay that fine, was a question proper for the decision of a military tribunal.
This view of the case" renders it unnecessary to consider the other questions presented in the bill of exceptions.
Our opinion, therefore, is, that the county court erred in their instruction given to the jury; and consequently, their judgment ought to be reversed.
In this opinion the other Judges concurred.Judgment reversed.