Opinion
(June Term, 1863.)
1. Soldiers who had been "placed in the military service of the Confederate States in the field," under the conscription act of April, 1862, and were so at the time of the passage of the exemption of 11 October, 1862, were held not to be entitled to exemption under that act.
2. But where a blacksmith, after being so enrolled, was at the time of the passage of the exemption act not so placed in service in the field, but was detailed to work on a Government contract, and did so work at his trade, at accustomed wages, not having received any bounty, pay, rations, or clothing up to that time, it was held that he was entitled to exemption.
THE petitioner was a blacksmith, and had worked at the trade for ten years. In May, 1862, he quitted his shop and went to work in the armory of one B. Weathersbie, who was engaged in working for the State of North Carolina. On 8 July he was enrolled as a conscript, and shortly thereafter was detailed at Weathersbie's request to work in his armory, where he remained until the contract was abandoned in the latter part of March, 1863. From the last of March to 19 May the petitioner was in the service of Captain Coffin, in command of the armory, and was working there at his trade of a blacksmith; whence he was directed by Coffin to report to Lieutenant Anderson, enrolling officer for the Sixth Congressional District of North Carolina, which he did as soon as he could find him, to wit, on 22 May, 1863. He then filed his affidavits for exemption, and the proofs necessary to sustain his application, and insisted on his discharge, but this was refused, and he was sent to the camp of instruction near Raleigh, where he was detained, and is still detained, by the order of Col. Peter Mallett, commander of the said camp of instruction. Up to the time of the arrival of petitioner at the camp, he had never received any bounty, pay, rations, or clothing; but since then, he received a few articles of clothing (which are specified in the proofs) and his daily subsistence. For these causes he applied for a writ of habeas corpus to this Court, and on its return, with the cause of his detention, the cause was argued by (67)
Gilmer and Scott for petitioner.
Strong, District Attorney of Confederate States, and Bragg, contra.
For the reasons given by me in my opinion, In re Nicholson, the Court is of opinion that the exemption act of 11 October, 1862, applies as well to the conscription act of April, 1862, as to the conscription act of September, 1862, and the reasoning in Nicholson's case is now referred to as the ground of the decision of the Court on that point.
Note — IN RE NICHOLSON.
In regard to the proper construction of the exemption act, in (68) its application to the conscription act of September, 1862, the Court is not called on to express an opinion, as there is no case before it which involves the question.
In regard to the proper construction of the exemption act in its application to the conscription act of April, 1862, the Court is of opinion that no person is embraced by its provisions so as to be entitled to exemption as a shoemaker, tanner, etc., who was at the date of its passage in the army as a soldier; that is, who had, prior to the passage (69) of the act, been placed in the military service of the Confederate States in the field. But that all "shoemakers, tanners," etc., under the age of 35 years who had not been, prior to the passage of the act, "placed in the military service of the Confederate States in the field," are embraced by its provisions, and are entitled to exemption, whether the fact of the party's not having been placed in military service in the field be owing to his not having arrived at the age of 18 years, or to his not being in the State, or to his not having been enrolled, by an (70) oversight or neglect of duty on the part of the enrolling officer, without default on the part of the party himself (which is one of the cases before us), or, if enrolled, that he was not ordered into service by similar laches of the officer (which is another case before us), or to the fact that when enrolled the party was detailed to work as a shoemaker, or blacksmith, or wagonmaker, in the employment of a Government contractor, the person so detailed receiving no bounty, or pay, or rations, or clothing, as a soldier, but receiving only his (71) accustomed wages as a journeyman tradesman, of which kind is the case now under consideration, and several other cases before us, or whether they had been allowed to remain at home "as a reserve," receiving no pay as soldiers, under the provision of the sixth section of the conscription act of April. In other words, we draw the dividing line between those who had become soldiers and those who had not left the walks of private life, and were actually employed in their respective trades at the date of the passage of the exemption act.
The task of making an application of the exemption act to a conscription act, which was passed six months before, and had, in a great measure, been carried into effect (as I say in Nicholson's case) is a very difficult one. It is hard to make the one fit the other. The Court has been aided by very full and able arguments at the bar, and after weighing the suggestions offered pro and con, and taking into consideration the act of 9 October, 1862 (two days before the exemption act), which authorizes the President to detail from the army persons skilled as shoemakers (not exceeding two thousand), to make shoes for the soldiers, to which our attention was for the first time called by Mr. Bragg, and of which (72) neither member of the Court was before apprised, we have come to the conclusion stated above.
On the one hand, a construction confining the operation of the exemption act to the few persons who may have arrived at the age of 18 years after the passage of the conscription act, and the few exceptionable cases where persons under 35 years of age had by the omissions of the Confederate officers not been enrolled, would certainly be restricting it too much; on the other, to extend its operation to all shoemakers, tanners etc., who were in the army would seem to carry it too far, and the act referred to (9 October), taking men out of the army, by detail, to make shoes for soldiers (restricting the number to two thousand), is inconsistent with the fact that two days thereafter it was the intention to take "all shoemakers, tanners," etc., from the army and send them home to work at their trades. So that broad construction is excluded. The same act furnishes proof that the members of Congress were aware of the fact that the number of artisans working at their respective occupations was not enough to supply the necessities of the public. From this we arrive at the conclusion, without going into a particular examinations of the words used, that all soldiers were to continue in service, and all who were at home, actually employed at their trades, should remain there, and be exempted as long as they should continue to work at their trades at prices not exceeding 75 percent. On the cost of production.
This construction varies in some measure from that given by me to the act in the opinion delivered In re Nicholson ; but the difference does not affect any case now before us; the distinction being that in my opinion, then, soldiers were embraced by the exemption act, but those who fail to make their election, and afterwards received pay, rations, clothing, etc., were to be considered as having waived there right to exemption; whereas in the opinion of the Court, in which I fully concur, soldiers or persons who had been placed in the military service in the field were not embraced by the exemption act. Its practical (73) application to the only case of kind before us (In re Dixon) result in same way. He was under 35 ; was in the army as a conscript when the exemption act passed ; had received the bounty, pay, etc., of a soldier afterwards, up to November 1862, and was not entitled to exemption: where on the ground that the exemption act did not embrace his case, or, if it did, that he had waived the right, makes no difference, as in either view he has to be remanded.
Let the petitioner be discharged, and recover his costs.
Cited: In re Wyrick, post, 376, 378; In re Bradshaw, post, 382; In re Sowers, post, 387; McDonald v. Morrow 119 N.C. 672.
The facts are: Nicholson is 33 years of age, is a miller and millwright, skilled in both trades. He was enrolled as a conscript 8 July, and was ordered into service 15 July, 1862. Between 8 and 15 July he applied to the commandant of conscripts for a special exemption as a miller; this was refused. He, nevertheless, failed to report, and continued at his trade as a miller, as he had habitually done for many years before. In August, 1862, he went into the armory of Lamb Co. expecting to be detailed, but left before the detail was made and set in to work for one Shipman, as a millwright, where he worked until 1 January, 1863, when he went to Virginia, and set to work as a millwright for one Lamb, where he remained actually employed at his trade until March, when, coming into this State on a visit to his family, he was arrested as a recusant conscript. He has made the affidavit as required by the exemption act.
In the matters of Mills, a shoemaker, and Angel, a wagonmaker, I decided that the exemption act, 11 October, 1862, applied as well to the conscription act of April as to conscription act to September. I see no reason to change my opinion. The act adds to the list of exemptions contained in the exemption act of April; uses general words applicable to both conscription acts, "all shoemakers, tanners," etc.; makes no distinction between persons under or over 35, and repeals the former exemption act, showing obviously that the intention was in reference to the conscription act of April, to put the last exemption act in place of the act repealed, and make one exemption act answer for both conscription acts. If this be not so, there are no exemptions between the ages of 18 and 35, and governors of the States, judges, members of the Legislature, etc., under the age of 35, are liable as conscripts; nay, all persons, although "unfit for military service by reason of bodily or mental infirmity," are liable as conscripts, if under the age of 35. Such a construction is inadmissible. It was said by Mr. Scott, on the argument, "This difficulty is met by the power given to the President to make special exemptions." But it could not have been the intention to make governors, judges, and members of the Legislature dependent upon the pleasure of the President. The object was to entitle them to exemption by law, and not by favor.
It was also said, if the act applies to the conscription act of April, it must have a retroactive effect, and its construction will present many difficulties. That is true; but when the clear intention of the lawmakers that the one act should apply to the other appears, it becomes the duty of the judges to adopt such a construction as will make them fit in the best way they can be put together.
In the matters of Mills and Angel it was not necessary to fix on the time when the act requires the party to be actually employed at his trade, for they were not ordered into service until after its passage, and were, without default, actually employed at their trades, both at the passage of the act and when ordered into service, and, taking either date as "the time," were entitled to exemption.
In this case the point is directly presented. If "the time" be when the party is ordered into service, then Nicholson was entitled to exemption, and his subsequent conduct in keeping out of the way and going to Virginia to avoid an arrest does not prejudice his right, it being induced by the unauthorized act of Government officers in attempting to arrest him, although the more commendable course would have been to insist openly on his right. If, however, "the time" be when the exemption act passed, then he was liable as a conscript, and although actually employed at his trade, cannot claim, for that reason, to stand on higher ground in this respect than if he had been in the army, because of the maxim. "No man shall take advantage of his own wrong."
The clause under consideration does not (except indefinitely, in the proviso) refer to the time when the person claiming to be exempted must be actually employed at his trade. It makes no exception of persons then in service or who had been ordered into service, and puts the stress on the fact of actual employment. It is in these words: "All shoemakers, tanners, etc., skilled and actually employed in the said trades, habitually engaged in working for the public, and whilst so actually employed, provided said persons shall make oath in writing that they are so skilled and actually employed at the time, at their regular vocation, in one of the above trades, which affidavit shall be only prima facie evidence of the facts therein stated."
In reference to the conscription act of September, it is clear "the time" is when the party is ordered into service; that being the time when the affidavit is called for to enable him to claim exemption. But in reference to the conscription act of April, it is not so easy to fix the time. The difficulty arises from the fact that the exemption act is applicable to both conscription acts, one of which was passed six months before the other, and after it had, in a great measure, been carried into effect. In my opinion, "the time" is the same in reference to the act of April as in reference to the act of September, to wit, when the party is ordered into service. Had the time of the passage of the act been intended, it is reasonable to presume that the words would have been "now actually employed," as in the clause just preceding, in respect to physicians, "at this time." The policy of exempting shoemakers, etc., being not to favor the individual, but to subserve the public interest, which was greatly prejudiced by taking tradesmen from their occupations, it was immaterial whether the tradesman was under or over the age of 35 years.
The material inquiry is, Was he working for the public at the time? which naturally refers to the time when he was called off from his trade — taking the distinction between volunteers, who of their own accord had quit their trades, and conscripts, who had been taken from their trades by act of law, and should be considered in reference to the intended exemption as still at their trades. This construction is called for by the rule, "the same words in the same statute ought to have the same meaning," and as in reference to the act of September, the meaning certainly is when the party is ordered into service, the same words cannot have a different meaning in reference to the act of April. Had it not been the intention to include all shoemakers, etc., without regard to age, this result would have been avoided by adding the words: " Provided, no shoemaker, etc., shall be exempted who is now in service, or has been ordered into service." So the question is narrowed to this, Can the courts add these words to the act? I see no ground on which the omission, if it be one, can be supplied by construction. It was urged by Mr. Scott that the public interest required as many soldiers as could be raised; therefore an intention to exempt any who were already in service, or who ought to have been in service, can only be inferred from plain and direct words. This was met by Mr. Gilmer with the suggestion that the public interest required that tradesmen should not be taken from their vocations, and that those who have been taken off by act of law should be allowed to return; as it was seen the public interest had been prejudiced, and it was a matter of difficulty for the people to get a pair of shoes or have a plow sharpened, etc., and that the benefit of a matter of doubt, if there be one, arising from a want of precision in an act of Congress, should be given to the citizens rather than to the Government.
Giving to these suggestions proper consideration, the inquiry, whether the intention was to consult the public interest in the army or at home, can only be answered by the words used. The clause under consideration does "in plain and direct words" exempt all shoemakers, etc., and does not except those who are in the army, or ought to have been in the army, at the passage of the act, and the indefinite words in the proviso, "actually employed at the time," cannot, by any recognized rule of construction, make the exception.
And it does "in plain, direct words" repeal the exemption act of April. This fact has an important bearing on the question of construction, for if it was not the intention that the additional exemptions should apply to persons under 35, why repeal that act? And if such was the intention, the only way in which it can be carried out, and the exemption act be made to fit the conscription act of April (with a few exceptionable cases like Mills and Angel) is to give it relation to the time when the party was ordered into service and taken from his trade.
Whether shoemakers, etc., who were in service as conscripts when the act passed can now claim exemption, or would be taken to have waived the right, by acquiescence, in afterwards receiving pay, etc., is not the question now presented.
Nicholson certainly has done no act that can amount to a waiver of his right; he has not received the State bounty, has received no pay, and has done nothing from which acquiescence can be implied.
It is considered by me that Nicholson is entitled to exemption, and that he be forthwith discharged, with leave to go wherever he will. It is also considered that Lieutenant Anderson (the enrolling officer) pay the costs of this proceeding, allowed by law, to be taxed by the clerk of the Superior Court of Guilford County, according to the statute in such a case made and provided.
This clerk will file the papers in this proceeding among the papers in his office, and give copies to Nicholson and Lieutenant Anderson.
At Richmond Hill, 4 May, 1863. R. M. PEARSON, Ch. J. S.C.