33 Ga. 413 | Ga. | 1863
Lead Opinion
Jenkins, J., delivering the opinion.
These cases having been returned to the same term of the Court, and depending upon the same rules of law, were consolidated for the purposes of the argument, and the following opinion governs both:
On the 16th of April, 1862, the Congress of the Confederate States passed an Act, entitled “ An Act to further provide for the public defense,” whereby the President is authorized “ to call out and place in the military service of the Confederate States for three years, unless the war shall have been sooner ended, all white men who are residents of the Confederate States, between the ages of eighteen and thirty-five years at the time the call or calls may be made, and who are not legally exempt from military service.” By the ninth section of that Act it is provided, “that persons not liable for duty may be received as substitutes for those who are, under such regulations as may be prescribed by the Secretary of War.” On the 26th of April, 1862, the Secretary of War made, and through the Adjutant and Inspector General published, a General Order, No. 29, containing regulations, providing for the acceptance of substitutes, and the discharge of persons furnishing them. And again, on the 29th of the same month, he made and published in like manner another (explanatory of the former,) one section of which is in the following words: “No person other than those expressly named or properly implied in the above Act shall be exempted, except by furnishing a substitute exempt from military service, in conformity with the regulations already published, (General Order, No. 29,) and such exemption is valid only so long as the substitute is legally exempt.”
After the passage of the Act of 27th September, - Farrell and Williams were again enrolled for service, and denying their liability, each sought a discharge by habeas corpus from the custody of the Commandant of Conscripts. Whether or not, under the circumstances stated, they are liable to this second enrollment is the question we are to consider.
They claim exemption solely in virtue of the discharges granted them severally upon the acceptance of their substitutes.
In their behalf, it is insisted that the substitution authorized by the ninth section of the Act of 16th April, is co-extensive with the term of their enrollment, viz: “ for three years unless the war shall have been sooner ended,” and that their discharge covers the same time. They deny the validity of the regulation made by the Secretary of War in his order of 29th April, for that, it is not such a regulation as the Congress authorized him to make — that it is an act of legislation of which the Congress alone is capable. They further insist, that even if that regulation be binding upon them, a proper construction of it will save their exemption.
It will be observed that the entire legislation of the Congress, on this subject, is embraced in one short sentence: “Persons not liable for duty may be received as substitutes for those who are, under such regulations as may be prescribed by the Secretary of War.” It was certainly in the power of Congress to perfect the entire scheme of substitution, arranging all the details, and leaving no discretion to the Secretary. But they have chosen to do otherwise. The intention to confer upon that officer a large discretion is very apparent. There is but a single limitation affixed, viz: that substitutes shall be persons “not liable for duty”; and this is obviously not for the benefit of those desiring to put in substitutes, but for the public good. It may fairly be questioned, whether the discretion vested in the Secretary does not extend to the rejection by him of the entire policy. The language is permissive; substitutes “ may be received” — “ under such regulations as may be prescribed,” etc. May is generally regarded as a word of permission. In the construction • of statutes, may is held to mean shall in two cases, viz: where the thing to be done “ is for the sake of justice, or for the public benefit.” Dwarris on Statutes, 712. But the privilege of military substitution is for neither of those purposes. Had the Secretary failed to prescribe regulations, there could
Waiving this view, however, it will scarcely be affirmed that the delegation to that officer of a large discretion in framing regulations to guard the service of the country against detriment from the abuse of the privilege, would be void. On the contrary, it would seem to be eminently fit and proper. The position of that officer gives him at all times a clearer view of the military necessities of the Government than the members of the Legislature can be supposed to have. He is always at his post, overlooking the entire field of operations, and discerning the changes made in those necessities, by constantly varying circumstances, whilst they are often in recess, pursuing their private avocations. If substitution be a gratuitous privilege, as we think we have shown, it results as a corollary from that proposition, that Congress, in granting it, may either impose terms, or empower an executive officer of the Government to impose them. If the terms be unacceptable to any party enrolled, he may decline the privilege and perform the duty. If he accept it, he must do so, cum onere.
By General Order, No. 58, the Secretary of War required persons enrolled, and certified by competent authority to be unfit for bearing arms, to report to a camp of instruction, that they might be detailed to lighter duty, to which they were competent; but on the 11th October, Congress passed an Act annulling this order, and providing that such persons be not required to assemble at a camp of instruction. Why? Because the order did not accord with legislative intention. They have, however, neither annulled nor modified the regulation of 29th April, and the legitimate inference is, that it does accord with their intention.
Eor these reasons we regard that' regulation as a fixed legal condition of the privilege of substitution.
As before remarked, we are inclined to consider the substitution more in the nature of a gratuitous privilege than of a binding contract.
But conceding (for the argument) that it is a contract binding on the Government, and further, that good faith inhibits the cancellation or impairment of the other contract between the principal and substitute, the question presents itself, what were those contracts ? They were for such substitution and such only as the Act of April 16th, and the regulations of the Secretary of War in pursuance thereof)
It will be observed that we do not rest this opinion upon General Orders No. 82, made and published after the Acts of substitution we are considering, but upon the order of April 29th, which was anterior to them. Number eighty-two appears to be a digest of the several Acts of Congress relating to enrollment, exemption and substitution, and of the orders and regulations of the Department of War, for carrying them into effect. Some of the pre-existing orders and regulations are annulled and others modified by it. The order of the 29th April, is in substance repeated in number eighty-two, but it has been operative from the earlier date.
The officers giving them were but agents of the War Department. The laws of Congress and the regulations of the Department, constitute their powers of attorney, and any act of theirs, transcending the powers thus given, and especially any act, violating the expressly declared intention of the •superior, is simply void. For these reasons we think there was error in the judgments of the Court below, ordering the applicants discharged.
Let the judgment be reversed.
Dissenting Opinion
dissenting.
With a full sense of the importance and delicacy of the question involved in this case, and the necessity of unanimity by the Court in its judgment, I have labored earnestly to bring my mind to the same conclusion with my associates, but with all my anxiety I have been unable to do so, and shall briefly assign the reasons for my dissent.
The applicant for discharge under the writ of habeas corpus, had been arrested, and was held in custody by the enrolling officer as being subject to the duty prescribed by an Act of Congress, entitled “An Act to further provide for the public defense,” approved 16th April, 1862. He claimed his right to a discharge on the ground that he had furnished a substitute, as he was allowed to do by that Act, and had received from the captain of the company, who had received his substitute, an absolute discharge from all further liability to military duty for three years, or during the war, the term of service prescribed by that Act. To this it was replied, on the part of the enrolling officer, that while it was true that such substitute had been furnished and received, the substitute was only thirty-seven years of age, and had himself become liable to a similar duty by the Act of Congress of 27th September, 1862, extending the provisions of the Act of April, 1862, to persons between the ages of thirty-five and forty years, and that by the latter clause of one of the regulations — No. IY, of General Order 29 — prescribed by the Secretary of War, in pursuance of the authority vested in him by the same Act allowing substitutes, and with a view to meet such, and similar cases to this, and which said regulation was in force at the time the substitute was furnished, and that as the substitute was no longer legally exempt, the applicant’s discharge was no longer valid, but that he was now, by the terms of the Act and the regulation, bound himself to fill his own unexpired term of service. The clause in the regulations of the Secretary of War relied upon to support this position is in the following words: “ Such exemption is valid only so long as the said substitute is
1. Because the Act not only did not clothe the Secretary of War with the power to impose such conditions or terms upon the act of substitution to the extent that is claimed for the regulation I have quoted above, but that if that regulation was intended, and does in fact extend so far, it is repugnant to the sense and spirit of the Act, and therefore void.
2. Because that clause of the regulation does not in fact extend, apply to, or control the question in this case.
The Act of Congress, of 16th April, 1862, authorizes the ’ President to call out and place in the military service of the Confederate States, for three years, unless the war shall have sooner ended, all white men, residents of the Confederate States, between the ages of eighteen and thirty-five years at the time the call or calls may be made, who are not legally exempted from military service; and the ninth section of the Act provides, “ that persons not liable for duty may be received as substitutes for those who are, under such regulations as may hepreseribed by the Secretary of War.”
The Act applies only to the citizens of the Confederate States, the duty created is a military service of three years, and the persons subjected to that duty are all white, male citizens between the ages of eighteen and thirty-five years, who are not exempt by law. The object of the Act was to raise an army adequate to the exigencies and perils of the country, then in its greatest straits, and this, it was thought, would bring into the field all the available and effective arms-bearing population of the Confederacy that could be spared from the agricultural, producing and manufacturing interests, that were as essential to a successful prosecution of the defense — the maintenance of the army in the field, and continued prosperity of the country, as the operations of the
It is urged that the right to furnish substitutes was not perfect, but that it was circumscribed by the provision that they, the substitutes, might be received “ under such regulations as may be prescribed by the Secretary of War,” and that it the War Department had prescribed no regulations on the subject, no substitute could have been furnished and received, and that therefore the right or privilege of furnishing substitutes was coupled with and dependent upon whatever conditions and terms the Secretary of War might choose to impose. If this view be a correct one, then the law did not confer any right or privilege upon the citizen to furnish a substitute, but simply clothed the War Department with the power to allow or not, as it thought proper, and if so, then to hamper the privilege with such conditions or terms as to greatly impair, or altogether defeat, its benefits. I cannot force my mind to assent to such a construction, but it seems to me to be utterly at variance with the letter and spirit of the whole Act. Could Congress have delegated to the Secretary of War such extraordinary power ?
I do not believe that it could. The enactment of laws, being the highest and greatest act of sovereignty, can only be done by the sovereign power of the State. A law must remain and continue in force, just as it leaves the Legislature. It stands as it issued from the hands of its creator. If it be imperfect, incomplete, or defective, by failing to provide
As already stated, the liability or duty, created by this Act, was a military service of three years, and the persons subjected to this liability were all the white male residents, that is, citizens or persons, who had placed themselves by their Act in that status towards the Confederate States, who were not otherwise exempt by law, between the, ages of eighteen and thirty-five years at the time the call or calls should be made by the President. This was the duty and these the persons to perform that duty. All other white male residents, that is, citizens in the sense above stated, were the persons not liable to the duty prescribed by the Act. And from these, says Congress, substitutes may be received for those who are— that is, that the persons who are not liable to the provisions of that Act may be received as substitutes for those persons who are liable to its enactments. The word substitute has but one meaning, and that is, “one person or thing which is put in the place of another person or thing to answer the same purposeand it was in this sense that it was used in this Act. Congress, then expressly declares that any person subject to the stringent provisions of this law, in order to be relieved from its operation, shall have the right to furnish in his place and to perform the same service, not apart but the whole service, that he by the law is required to perform, any other per,son capable of performing that service, that he can procure for that purpose from among those residents or citizens of the Confederate States who are not subject to the duty imposed by this Act. Now if the regulation imposed by the Secretary of War goes to the extent claimed for it — that is to exclude wholly or partially those persons, from that class from which Congress declares substitutes may be received, who may from the necessities of the country be called upon to perform military service by future legislation, then the regulation does that not only which Congress did not think necessary to enact, but it conflicts directly with the Act of
The other position that I take, that the regulation of the Secretary of War relied upon, does not control this case or meet the question made by the record, presents less difficulty than the one I have already discussed. That clause says, that “such exemption,” that is the exemption from the duties prescribed by that Act, obtained by one furnishing a substitute, “ is valid,” shall continue, “only so long as the said substitute is legally exempt.” Legally exempt from what? Why, clearly from the liability imposed by the Act of Congress to which the regulation had reference, and which called upon him to prescribe the regulation — the one then in force — not liabilities to be imposed by future legislation, and not then created, and such as might never exist. All acts or regulations must be construed with reference to laws in force—
General Order, No. 29, of the War Department, of which the clause under discussion is a part, specifies the persons to whom the Act referred as being exempt by law, and they are Justices of the Peace, Sheriffs, Clerks, Postmasters and their deputies, allowed by law, Masters and Commissioners of Ordinary, District and State Attorneys, etc. Now, there’was nothing in the Act or regulation to prohibit any of the persons, holding these various offices, from becoming substitutes for those who were liable; so long as they retained their official positions they were exempt and could not be enrolled, but when they ceased to hold the offices that protected them, they fell within the operation of the law, and were no longer legally exempt but were liable to enrollment. Hence it was proper and necessary that the Secretary of War should by regulation provide for such contingency, and to hold, in all cases when the substitute was furnished from this class of persons so exempt, the principal to be exempt only so long as the substitute himself be exempt from the liability of that
But it is argued, and this argument was pressed upon the Court with great earnestness and ability, that the practical effect of the rule, I insist to be the proper one, is to deprive the country of the benefit of an effective soldier in every instance when such a substitute has been received, and gives it nothing in exchange for such loss; that the success of our arms may and will be materially affected by thus keeping out of the service such a large class of the very best material of the land, and that therefore it is not to be supposed that either Congress in passing the law, or the Secretary of War in prescribing regulations, could have intended to frame and allow a system that would in its results prove so disastrous. If it be conceded that the rule would prove mischievous, or has done so, it is neither certain or reliable to argue, therefrom, that it was not intended, because Congress and the Secretary of War might, and probably did, fail to foresee or apprehend such a result. In the history of human legislation it is extremely rare to find the identical results produced that were intended, and nothing more. Sometimes it fails to accomplish anything, sometimes the opposite, and again the greatest mischief, when nothing but good "was intended. It is impossible for any Legislature to foresee the whole practi
None of the remarks I have made are intended to reflect on the law or the Congress .which passed it; on the contrary, I am convinced, after the most careful consideration of it and the various points made upon it, that the law was conceived and executed with wisdom and sagacity, that it contains no defect in the particular under discussion, and less than most Acts, especially for one having such an extensive operation, of such vast importance, and one that has accomplished so much practical good.
It is indeed to be regretted that this question was ever made or insisted upon by the War Department, for all those who, construing the law and the regulation as I do, furnished substitutes like the present applicant, out of that class of persons to whom the Act was extended, can but feel that they have been cruelly oppressed by the Government in breaking up and defeating a contract made by them upon its most deliberate consent. They must feel that the Government in this has violated its plighted faith — a thing much more injurious than the loss of a few soldiers frota the army.
To conclude this opinion, already too long, the decision of this question must depend upon the construction which the Court may give to the regulation of the Secretary of War, taken in connection with the Act of April, 1862. The construction I give is consistent with the regulation, with the Act, with the rights, interests and good faith of the Government, and the rights of the citizen, while the construction of the Court is virtually inconsistent with all.