
    Commonwealth versus Levi Smith, in Certiorari.
    the exemption of engine-men from duty in the militia applies as well to mem bers of volunteer or independent companies as to those of the standing militia.
    But the right to such exemption is waived, if it exist at the time of tire party’s enlisting into such volunteer company.
    Ti avail himself of such exemption, it is not sufficient to produce the certificate if his appointment to the commanding officer of the company after the day of muster or training.
    This was a writ of certiorari, issued at the instance of Smith, the respondent, W. E. Green, Esq., a justice of the peace for this county, to bring up the proceedings had before the said justice, upon the complaint of Edward D. Bangs, clerk of a company of light infantry, against the said Smith, alleging him to have been duly enrolled in the said company, and to have unnecessarily neglected to appear at. a muster of the company on the 7th day of May 1816, although duly warned; whereupon the said justice had adjudged Smith to pay a fíne of three dollars and costs.
    The said judgment was grounded on a statement of facts, agreed and signed by the parties at the trial before the justice; purporting that Smith voluntarily enlisted in the said company several months previous to the said 7th day of May; that he was duly warned to appear on that day, and neglected so to do; that, before the said warning, viz., in the month of April preceding, he was duly appointed by the selectmen of the town of Worcester, of which he was an inhabitant, to be one of the engine-men in and for said town for a year then next ensuing; and that, within eight days after the said 7th of May, he presented to the commanding officer of said company a certificate of his appointment, and liability to perform the duties thereof, according to the form of the statute in such case made and provided.
    *The error relied on, as sufficient to quash the proceedings, was, that Smith, by accepting the appointment of an engine-man, had ceased to be a member of the said company of light infantry, or to be liable to perform duty therein at the time aforesaid.
    
      Burnside, for the respondent.
    The act for regulating, governing, and training, the militia of this commonwealth absolutely exempts from militia duty “ such engine-men as shall annually produce to the commanding officer of the company, within whose bounds they reside, certificates from the selectmen of their respective towns, that they have been legally appointed and are bound to perform the duties of engine-men.” 
    
    
      Bangs, for the commonwealth.
    The enlistment of one into a volunteer company, as this is, deprives him of the right to accept the appointment to the office of engine-man, in which no one can be compelled to serve. The 14th article of the 34th section of the act provides, that “ Every person, who shall enlist in any volunteer company (whether such person be exempted by this act from any military duty or not) shall be holden to do duty therein for the term of seven years, unless such person be sooner discharged by order of the commanding officer of the brigade.” These two sections' must ne construed together; and the latter may be considered as a proviso, annexed to the first section, excluding from its operation persons enlisting into these volunteer companies, and limiting the exemptions to the ordinary militia.
    
      Burnside.
    
    The exemption by the first section is absolute, and applies as well to the person producing to the commander of the company a certificate of his appointment as an engine-man, as to the vice-president of the United States, or to a judge of this Court. If one is exempted, so is the other. The true meaning of the 14th article of the 34th section is, that the party enlisting in a volunteer company shall be holden to do duty seven years, notwithstanding any exemption he may be entitled to at the time of such enlistment. By #such enlistment he shall be considered as waiving his claim to such exemption. If an after election or appointment to office is held not to exempt him, then may the lieutenant-governor of the commonwealth, a judge of this Court, or the other high and responsible officers, mentioned as exempted, be called from the exercise of their important functions, to place themselves in the ranks of a company of militia, or be held liable to a fine at the suit of its clerk. Such a construction must be against public policy, as no citizens ambitious of those honorable stations would enlist upon such conditions. The construction contended for by the respondent is strongly countenanced by the decision of this Court in the case of The Commonwealth vs. Thaxter. 
      
    
    
      Bangs.
    
    Every one enlisting in a volunteer company is aware of the terms on which he engages, and voluntarily subjects himself to the discipline, notwithstanding he may, within the term, be placed in a civil office, the rank of which he may think incompatible with that of a citizen soldier. But there is no doubt that, in case of the supposed elevation, he would be able to obtain his discharge; or if the duties of the two situations were incompatible, “ he would be discharged, or at least excused from the performance of duty, while the impediment continued,” as in the cases put by the Court in The Commonwealth vs. Thaxter. An engine-man is not, however, a public officer. He undertakes certain services, for which, but for his own voluntary act, he would be entitled to an adequate remuneration. It is his own folly, if he undertakes conflicting duties.
    If, however, the respondent was entitled to the exemption he claims, he has not adopted the means necessary to avail himself of it in this case. His privilege did not attach, until he had produced the certificate of the selectmen to the commanding officer of the company.
    
      Burnside.
    
    The duties of a soldier are as incompatible with the obligations of an engine-man, as with those of officers of a higher rank. The statute puts them all on the same ground.
    * The statute requires the certificate to be produced annually. In this case, it was produced within the eight days allowed by the 32d article of the 34tn section of the act for presenting excuses.
    The cause was continued for advisement, and the opinion of the Court was pronounced, at the following April term in this county, by
    
      
      
        Stat. 1809, c. 108, § 1.
    
    
      
      3) 11 Mass. Rep. 393.
    
   Parker, C. J.

We think the appointment to the place of an engine-man gives an exemption from military duty, as well in independent or volunteer companies as in those of the standing militia, they being different modifications only of the same duty; and that the enlistment being voluntary makes no difference, as it was merely a choice of the mode in which he would perform his service in the militia; also that the 14th article of the 34th section must be construed to operate upon exemptions existing at the time of the enlistment, they being waived by the enlistment. In the case before us, the appointment was subsequent to the enlistment; and this new duty gave the right to be exonerated from militia service.

But we think that the provision in the section containing the exemptions, that engine-men must produce annually a certificate of their appointment, was intended to protect the commander and clerk of the company from trouble and expense, which might be incurred by causing prosecutions where they might have no knowledge of the exemption; and that the period of eight days allowed by the statute is applicable to excuses, and not to exemptions, which need no excuse.

We are of opinion, therefore, that, at the time of the muster or training, for absenting himself from which the respondent was adjudged to pay a fine, he was not exempt, not having then produced his certificate to the commanding officer of the company.

Proceedings affirmed.  