
    The State ex relatione H. W. Adams, et al., vs. Wm. Hopkins, et al.
    By Act of Congress, one troop of cavalry is limited to each regiment, and in raising it, a beat company must not be reduced to less than forty men. If this law is violated, the brigadier under the order of the commander-in-chief, may remedy the evil by disbanding, or reducing, as the case may require.
    When a beat company has been reduced to forty men, the captain may refuse to permit any more of them to enrol themselves in volunteer companies.
    Prohibition lies when a subordinate court, exercising judicial powers, errs on a question of jurisdiction.
    By an Act of 1815, now of. force, a party appealing from the sentence of a court-martial, must accompany his appeal by an affidavit, that he could not attend the court, and that he does not appeal for delay.
    BEFORE HIS HONOR, CHANCELLOR JOHNSON, AT COLUMBIA, 1836.
    The case made by the pleadings and evidence, is thus concisely stated by him.
    In 1831, Janies H. Adams, now colonel of the sixth regiment of cavalry, obtained permission from Brigadier-general Blair, to raise a troop of borse witbin Ms brigade; and Having recruited and organized the said troop, they were inspected by Major Reese, on the 17th of March, 1832, and upon his reporting favorably, the said James H. Adams, having been before elected, was, on the 25th"of June, 1832, commissioned captain, to take rank as of the 17th of March, the day on wbicb they were inspected. The troop was afterwards supplied with arms from the public stores, and from that time have constituted a part of the regiment of cavalry attached to the said brigade; mustered with it and discharged all other duties required by law. In reference to the question whether this troop was or was not dissolved, and the commissions of its officers vacated by the" act of 1833, it is stated that the said troop was not re-organized, and its officers re-elected on the 11th of April, as provided in the said act; but that in the month of June following, the said troop was re-organized, and the said James H. Adams re-elected captain, and continued in command until the summer of 1835, when be was promoted to the command of the regiment, and' thereupon the relator, James U. Adams, was elected captain of said troop, and bas ever since continued in the command of the same, performing with the said troop all the duties required by law. The relators, James 17. Adams, Henry W. Adams and Elisha Carter, were enrolled in the said troop about four years'ago, and Andrew P. Yinson some time after: and'from the times at which they were respectively enrolled, all of them have mustered with the said troop, and in common with it have discharged all the duties required by law.
    In showing cause'against the prohibition, the respondents state, in justification of the proceeding of the court-martial, that the relators all reside within the limits of the militia beat company No. 4, of tbe twenty-third regiment of infantry; and that in addition to these, five others (in all nine persons), also residing within said beat, have been enrolled in the said troop, and that by means of raising and keeping the said troop on foot, the said beat company is reduced below the number of forty men, rank and file, in violation of the Act of 1833; and it is conceded that the said beat company consists now of only twenty-seven, rank and file.
    Before and at the time of the raising and organization of this troop,' another troop of horse (the Richland Light Dragoons) had been recruited from the said twenty-third regiment, and was then, and is still, in existence, properly officered and equipped; and then and now performing the duties of a troop; which the respondents insist rendered the raising and organization of this troop unlawful, as the Act of Congress of 1792 limits the number of troops in a brigade to one to each regiment of infantry
    By the Act of Assembly of 1815, it is provided that no beat company shall be reduced below thirty men, rank and file, by reason of the raising of any volunteer companies; and the Act of Congress of 1792, provides that the number of artillery and horsemen should not exceed more than one-eleventh part of the infantry of each brigade; and the respondents state, in their answer, that by means of raising this troop in 1832, the beat company No. 4 was reduced below thirty men, rank and file, and the number of horsemen were made to exceed one-eleventh part of the infantry, and therefore, they insist also that the said troop was improperly’raised. But these facts-are not sustained'by any evidence, and from.’ what transpired at the argument, I suppose do not exist; in any event, I regard them, for reasons which will hereafter be seen, as wholly immaterial.
    Under these circumstances, the relators were summoned to attend the muster of 'the beat company No. 4, on the 5th of March last, to do duty as infantry; and refusing to perform that service, they were summoned to appear before an infantry regimental court-martial, consisting of the respondent, Major Hopkins, and four other officers, to show cause why they should not be fined for the said default. They appeared before the court and submitted the facts before stated, in the form of a plea to the jurisdiction of the court. The plea was disallowed, and the relators sentenced to pay the fines imposed by law for the supposed default, and executions have been awarded therefor. The relators pray the writ of prohibition, to restrain the said court in the collection of the said fines, on the ground that they are not liable to perform militia duty in the said beat company, nor subject to .the jurisdiction of the said court; but are bound to serve in 'the said troop of horse to which they belong, and liable for neglect or disobedience, only to a cavalry court martial.
    The Act of the State Legislature of 1815, under the authority of which . this troop was raised, authorizes the officers commanding brigades to permit volunteer companies of cavalry and artillery to be raised within their respective commands, provided no beat or district company shall be reduced below thirty men rank and file, by the formation of any volunteer company or companiesand the Act of Congress of the 8th of May, 1792, which constitutes a part of the militia system, as a further limitation of this power, prescribes that there shall not be more than one company of each, to.a regiment of infantry, and that the whole number shall not exceed one-eleventh part of the infantry of the brigade. Now, it does not appear that any one of these limitations was violated in the original organization of this troop; and I am led to conclude that the reduction of the beat compány No. 4 has originated in causes arising subsequently by the death or removal of persons liable to do duty therein, or what is still more probable, by the re-organization of the beat company itself under tbe Act of 1833, wbicb provides-for-a new division of tbe districts, and that tbe beat companies should not be reduced below forty men, rant and file, by tbe raising of volunteer companies. But this I regard as immaterial to tbe matter in issue, for, if in tbe organization of tbe troop, every restriction imposed both by tbe Acts of Congress and tbe-State Legislature, bad been even wilfully violated, yet so long as the relators remain, enrolled in the troop, they were not liable to do ordinary militia duty in tbe beat company, nor were they answerable to tbe infantry court martial for any neglect of militia duty.
    The warrant or order of an officer having legal authority to make it, is, upon the plainest principles of law, a justification to the agent authorized to carry it into execution. Thus a ministerial officer will be justified in carrying into execution the sentence of a court of competent jurisdiction, although it may be founded on the grossest ignorance or the vilest corruption. Tbe interpretation of the law is confided to the court, and the agent who is entrusted to carry its judgment into effect is not permitted to inquire into its correctness.
    What is this case ? General Blair, the officer commanding the fifth brigade, issued bis order authorizing James H. Adams to raise a troop of horse within the brigade, a power expressly delegated to him by law. On the faith of this order the rela-tors enrolled themselves in the troop; were inspected, received, and incorporated with the regiment of cavalry attached to the brigade, and have from thence continued to serve in that character.. Tbe effect necessarily was to discharge them from ordinary militia duty, because it imposed on them other duties wbicb are sometimes necessarily incompatible with it, which no longer remained a matter of choice, but wbicb they were bound to perform at their peril. Here then is the precise case of persons acting under the authority and in obedience to the orders of the brigadier-general, to whom the Act of 1815 expressly gave the authority to make the order; and to punish the relators for acting upon it, is to use the law as a trap to ensnare them.
    Again; it is not controverted that this troop was raised, inspected and incorporated with the regiment of cavalry; nor is it denied that the power of ordering it, is by law confided to the brigadier-general. In determining, therefore, whether the relators were or were not liable to ordinary militia duty, directly and necessarily involves the question whether the general had or had not violated the law in permitting the troop to be raised, and the relators to be enrolled in it. And will it be claimed for a regimental court-martial, that they have the power of examining and reversing the orders of their general, and punishing those who act under them? Such a principle of insubordinacy will not be found in any code, civil or military, and I am satisfied that this court-martial must have overlooked this difficulty, or they never would have overruled the plea of the relators.
    It is, however, well ascertained that this beat company is now reduced below the number of men, rank and file, which it is entitled to by law, and it is asked, is there no remedy ? If, as I suppose, it has been so reduced by causes arising subsequently to the organization of the troop, it may be well doubted, whether those before enrolled could be disbanded and ordered to the ranks of the beat company; for the prohibition is, by the terms of the Act of 1815, expressly limited to the reduction of the beat companies by the “formation of any volunteer company or companies,” and would not apply to a reduction of the beat company by subsequent or other causes; and the same phraseology is used in the Act of 1838; and besides this, there would' be manifest impropriety as well as hardship, in compelling men trained to one branch of the military service, and equipped at their own expense, to abandon that and engage in another. But if the brigadier had assented to the enrolment of the relators in the troop, knowing .at the time that by this means the beat company would be so reduced, he would be answerable to a brigade court-martial, for such a violation of the law; and that court would unquestionably have the power of making the necessary orders to compel those enrolled in the troop, in violation of the law, to return to the ranks of the infantry. If, in raising the troop, the beat company had been so reduced without his knowledge or concurrence, he himself doubtless has the power, and it certainly is his duty, to make such orders as may be necessary to correct the airases practised in executing his own orders; or if he should think it advisable, might call in the aid of a court-martial.
    From this view of the subject, the question whether the whole number of troopers exceed one-eleventh part of the infantry, or whether it was admissible to raise more than one troop in a regiment, is wholly immaterial. 'I will remark, however, that the fact assumed in the first proposition, has not been shown to exist, and in relation to the second, it will be (observed, that according to the Act of Congress of 1792, troops of horse are to be raised or formed by “volunteers from the brigade,” and unless it should infringe some other legislative enactment, there is no reason, except that of mere policy, why all the.cavalry of the brigade should not be recruited from one infantry regiment.
    I have thus noticed these grounds from respect to the respondents and their counsel, but I intend it to be distinctly understood that my judgment, on this branch of the case, rests entirely on the ground that the brigadier-general, who was clothed with ample legal authority, did permit this troop to be raised, and the relators to enrol themselves in it, and incorporated jt with the regiment of cavalry attached to his brigade; and the court-martial before which the relators were tried, having ascertained the fact that the relators had been so enrolled, were not competent to decide whether the order given by the general was legal and proper, or whether it had been properly or legally executed.
    There are, however, other questions in the case, which require to be noticed. This troop, it is said in behalf of the respondents, was dissolved by the Act of 1833, and not having re-organized and elected its officers on the 11th of April thereafter, as provided for in the Act, it ceased to exist, and the relators were therefore bound to perform ordinary militia duty.
    The 3d section of the Act declares that all volunteer companies of light infantry, riflemen and grenadiers, in existence at the passing of the Act, except such as had been incorporated by an Act of the Legislature, should be dissolved on tile first of.March then ensuing, and the commissions of their officers vacated. This, it will be observed, does not include cavalry; but in the 17th section it is enacted “that artillery companies, troops, squadrons and regiments of cavalry, which were organized according to law, previous to the Act passed in December last, entitled, ‘ an Act to alter and amend the militia laws of this state,’ shall be allowed to re-organize themselves and elect their officers on the 11th day of April next; and when no such companies, troops, squadrons or regiments have been raised as now provided by law, the brigadier-generals are hereby authorized to permit the raising of such corps within their respective commandsand I have understood that the construction of those two clauses which was received' and generally acted upon at the time, was that the troops, squadron and regiments of cavalry were dissolved and the commissions of their officers vacated; and such was probably the intention of the Legislature; but the correctness of that construction, judging from the Act itself, may well be doubted, for the cavalry are not within the letter of the 3d section, and the 17th section, standing alone, cannot, I am inclined to think, by any reasonable construction, have the effect of dissolving the troops or vacating the commissions of the officers; for allowing them “to re-organize and elect their officers on the 11th of April,” does not by any necessary implication, involve a dissolution of the troop. ' But this question is irrelevant, and therefore it is unnecessary to decide it, supposing the company dissolved both in law and in fact. The re-election of James H.-Adams to the command of it in the June following, and of the relator James U. Adams in the course of the last summer, his commission as captain, and the incorporation' of the troop with the regiment, is a sufficient re-organization of it, although it had not existed before the Act of 1833. The sanction of the brigadier general to this new organization, (so to express it,) was as effectual as if it had been raised anew under his order.
    There is yet another ground opposed to the prayer of the suggestion of the relators. It is that this court-martial were competent to determine whether the relators are or are not liable to ordinary militia duty. If they decided erroneously, the relators had the right to appeal to the officer ordering the court, and having neglected to do so, their judgment is final.
    That this court-martial were competent primarily to determine whether the relators were, or were not liable to ordinary militia duty, cannot admit of a question; for the right to determine the jurisdiction is incident to every court, in the first instance; but when the facts'are ascertained, and the subordinate tribunals exercising judicial power err on the question of jurisdiction, that is ground for probibition; and so if they err in tbe construction of a statute, for unless there was some common controlling power over these subordinate jurisdictions, it is probable, and we know from experience, that there would be no uniformity in their decisions; to-day the law must be one thing and to-morrow another in the same place, and different things in different places at the same time. Ex parte Brown, 2 Bailey, 823. The State vs. Bedgell, lb., 560; State vs. Iludnal, 2 Nott & McCord, 419. So prohibition will lie to restrain the proceedings of an inferior court, where, as in this instance, a collateral matter arising out'of it does not belong to that jurisdiction. The State vs. While, et al., 2 Nott & McCord, 176.
    The relators were not entitled to an appeal from the sentence of the court. The only case in which it is allowed by the Act of 1815, is when the appellant shall accompany his appeal by an affidavit that he could not attend the court by which he was fined, and that' he does not appeal for delay. The relators did attend and made their excuses, and could not therefore bring themselves within the rule. It is true that this Act was repealed by the Act of 1833, and the right of appeal expressly denied, but this last Act was repealed by the Act of 1834, and the right of appeal as before used restored, thus' restoring the Act of 1815 without alteration or amendment. This is, however, also an unimportant and irrelevant question, for whether the right of appeal existed or not, or whether the relators availed themselves of it or not, if the subject matter, as I have before shown, was not under their cognisance, every step in the proceedings was coram non judice, and prohibition would lie before or pending an appeal, and even after final judgment and execution. Com. Dig. Prohibition, D.
    It is therefore ordered, that a writ of prohibition do issue from the office of the Commissioner in Equity for Bichland District, to be directed to the respondents, and to all and singular the sheriffs, constables and other officers of the State, commanding and requiring them forthwith to desist and forbear from the collection of the fines imposed on the relators by the said sentence of the said court-martial.
    DAVID JOHNSON.
    Columbia, 29ih Aug. 1836.
    
      The respondents appealed from the order for prohibition made by his Honor Chancellor Johnson, upon the grounds :
    1st. That at the time of the formation of the lower troop of Richland Dragoons, there was already more than one troop of horse to a regiment in the brigade.
    2nd. Because A. P. Yinson, Elisha Carter, James H. Adams, and Henry W. Adams, were not members of the lower troop of Richland Dragoons at the time of the formation of the said troop, and the commissioning of its officers— but became so at a period long subsequent thereto.
    3rd. Because if the raising and commissioning of the said troop was legal, the addition of subsequent members, whereby beat No. 4 was reduced, was illegal, and they continued liable to do duty in said beat. ' •
    4th. Because by the Act of Congress, of 1792, troops of horse are to be formed of volunteers from the brigade, at the discretion of the commander-in-chief of the State, and not at the discretion of the brigadier.
    5th. Because the troop was dissolved by the Act of 1833, and the commissions of its officers vacated — and it was not re-organized and its officers re-elected on the 11th of April following.
    6th. Because beat company No. 4 has been reduced to twenty-seven men rank and file, by the raising or keeping up of the troop, whereof the relators are members, and residents in the beat.
    7th. Because the Act of 1815, which authorizes volunteer companies of cavalry to be raised, provided expressly, that the beat be not reduced thereby.
    8th. Because the authority of the brigadier to raise the troop, cannot excuse the relators if the beat be reduced by the raising of the troop, or by subsequent recruits, or by subsequent events.
    9th. Because the authorizing of another troop to be raised, did not imply an authority to reduce the beats.
    10th. Because the court-martial had jurisdiction of the question.
    11th. Because the relators submitted the question of jurisdiction to the decision of the court-martial by formal plea ; and the decision of the court thereon is final and conclusive.
    
      W. F. DeSaussure, for appellants.
    Elmore, contra.
   Curia, per O’Neall, J.

This Court concurs in the judgment pronounced below, upon the ground, that the allowance of a troop of cavalry is by law confided to the brigadier-general, and that when allowed by him, the enrolment of a member whose certificate of enrolment is accepted by the captain of the beat, or whose name afterwards disappears from the beat company’s roll, exempts him from the performance of ordinary militia duty in the beat, so long as the troop exists, and his enrolment continues in it: and that hence an infantry court-martial had no jurisdiction over the persons of the relators.

In expressing this opinion, it is due, however, to the infantry officers in command of the battalion and beat company, to say that this Court regards the beat companies as the basis of the military organization of the State, and that they ought to be protected in their proper rights. The existence of two troops of cavalry in one regiment of militia, (Militia Laws, 3,) is directly in violation of the Act of Congress, which limits this portion of the militia organization to one company- in each regiment. The fact that a beat company is reduced below forty men, (if done by the raising of a volunteer company) is contrary to law, (Mil. Laws, 145,) and ought to be remedied. The brigadier, who, by the Act of 1815, may permit volunteer companies of cavalry to be raised, will, under the order of the commander-in-chief, at whose discretion,” by the Act of Congress, a troop of horse may be formed of volunteers from the brigade, have the authority to afford the proper remedy by disbanding or reducing the troop.

When a beat company has been reduced to forty men rank and file, the captain may refuse to permit any more of his men to enrol themselves in volunteer companies or troops of cavalry; and may compel any who attempt to thus withdraw from his command to do duty in the beat. But this authority must be exercised before the certificate of enrolment has been received, and before the name of the man who has unlawfully enrolled himself in the cavalry, has been dropped from the roll of the beat company.

The motion is dismissed.  