NORTH v. APPLETON

NORTH v. APPLETON. N. Y. Supreme Court, First District, Chambers; October, 1890. Militia; discharged at end of term of enlistment without consent.] The provisions of section 219 of the Regulations of the National Guard, that when an enlisted man is entitled to a full and honorable discharge, his immediate commander may apply for such discharge ■without such enlisted man’s consent, are not repugnant to any provision of the Military Code ; and he may be so discharged at the ■expiration of his term of enlistment. The use of the word “ grant,” •in section 49 of the Military Code,—providing that the commander ■shall grant a discharge,—does not imply that an enlisted man’s assent shall be necessary. Motion for an injunction, pendente lite, restraining the -defendants from executing a certificate of honorable discharge of the plaintiff from the Fourth (D) Company, Seventh Regiment, First Brigade, National Guard of the State ■of New York, except with his consent, and from preventing the plaintiff from performing the duties and enjoying the sights and privileges of an enlisted man in said company. Abraham L. North brought this action against Daniel .Appleton and Austin E. Allen, alleging the plaintiff’s enlistment in the above named company, for a term of five years from April 27, 1888 ; that defendant, Allen, as captain of the above named company, and the defendant, Appleton, as colonel of the above named regiment, threaten ■-and intend, in the pretended exercise of their authority, to ■issue an honorable discharge of the plaintiff from such organization, without his request or assent, and against his will, •on the ground of the expiration of his term of service, and that they have issued an order announcing the plaintiff’s honorable discharge, which order had been received by the-'¡plaintiff through the mail, and that defendants intend to attempt to complete his discharge by executing a certificate-of discharge in the form furnished by the State. By the affidavits in opposition, it was alleged that the plaintiff enlisted in the Third company of"such regiment on April 4, 1884, for a period of five years, and, that in the; month of April, 1888, during the continuance of his period of enlistment, he was transferred to the Fourth company by regimental order; that the law does not permit re-enlistment during the service of a term of. enlistment, and that defendant was not re-enlisted at the time of such transfer,, but that the certificate then issued to him by the captain of the Fourth company was merely intended to show the private understanding usually required in such cases with the captain,, that he would remain five years, but, that it did not hold him to duty if he chose to take his discharge at the end of his term of enlistment; that defendant, Allen, as captain of the Fourth company, had applied to the colonel of the regiment for the discharge of the plaintiff, which discharge had been duly signed by the colonel and sent to the captain, and by him regularly served by mail upon the plaintiff, prior to-the receipt of the papers on this motion. Henry W. Sackett {Sackett & Bennett, attorneys), for the plaintiff and the motion. Charles E. Lydecker (Thompson & Lydecker, attorneys), for the defendant, opposed. [MAJORITY — Barrett, J.] Barrett, J. It appears that the injunction in this ease-was not served nor even granted until after the performance-of the act which the plaintiff seeks to enjoin. As therefore the alleged injury was already done when the action, was commenced, the injunction can have no operation. Upon the merits, however, the plaintiff must.also fail.. Section 219 of the Regulations of the Rational Guard provides that when an enlisted man is entitled to a full and. honorable discharge, his immediate commander may apply for sncli discharge, without such enlisted man’s consent. Unless this regulation is repugnant to the Military Code, the plaintiff must submit. I find nothing in the Code requiring the enlisted man’s consent to such application. Section 49 provides that the commander of the regiment shall, upon a proper certificate of the troop, battery, or company commander, grant the enlisted man a full and honorable discharge. There is nothing here requiring the enlisted man’s consent or request. It is contended, however, that this should be implied from the use of the word “grant.” But such an important limitation upon the commander’s power would scarcely have been left to implication. Had this been intended it would have been natural to make some provision for the method of setting the company commander in motion. Here the commander of the regiment is to grant the discharge solely upon the certificate of the company commander. There is not a word as to any act of the enlisted man. The word “grant” refers, not to the wish of the enlisted man, but to the fact of the discharge and to the benefit supposed to be attached to its honorable character, to its relief from further service, and its exemption forever from jury duty. Except, therefore, as the word aptly harmonizes with these benefits, it has no greater significance than such words as “ give,” “ furnish,” or “ deliver.” .This construction is fair to the enlisted man, and important to the State. For the enlisted man is absolutely entitled to his discharge upon the expiration of his term, and it might be a very serious matter for the State if a large number of such men could continue on at their own unrestrained option, thus keeping the ranks full, and then resign in a body at some critical period. The just rule is that which works both wrays. At the expiration of the term of enlistment, it is optional with the man to retire, and it is also optional with the State to make room for a new and compulsory term of service. The officers in the present case acted within" the powers conferred upon them by law, and the injunction should therefore be dissolved, with costs.