Bridgman v. Mallett, 60 N.C. 112, 1 Win. 112 (1864)

Dec. 1864 · Supreme Court of North Carolina

60 N.C. 112, 1 Win. 112

SETH BRIDGMAN vs. PETER MALLETT.

The appointment to an office, under the State government, of-a citizen of the State, who is in the service of tho Confederate government, is void; unless, perhaps, the office bo one recognised by the Gonstituiion of the State as essential to its government. _ •

This was a writ of certiorari at the suit of Major Mai-, lett, for the purpose of reviewing the decision of Battue, J., in a writ of habeas corpus sued by the plaintiff against the defendant as commandant of conscripts in this State.

Judge Battle, on the trial before him, ordered the petitioner to be diseharged, on the authority of Russell vs. Whiting.

The-facts of the case are stated in the opinion of Judge Battle.

Buttbee for the petitioner.

Bragg for’ the defendant.

Battle, J.

Tbe petitioner was, prior to tbe 2j6th day »f April, 1864, a Lieutenant in tbe army Of tbe Confed-* erate States ; but by an order of that date, be was dropped' from .tbe roll as an officer. • At tbe August Term, 1864, of tbe Court of Pleas and Quarter sessions for tbe county of Hyde, he was elected Register of tbe county, and was duiy qualified as such by entering into bond and taking tbe necessary oaths. Subsequently, to wit: on tbe 22d óf .September, 1864, be was ordered as a conscript, by tbe enrolling officer of the'county, to-report himself without delay to the camp of instruction, near Raleigh. The date óf enrollment is not distinctly specified either in the petir tion or return, though it is strongly tó be inferred from the allegations of the petitioner, that it was prior to his election as Register. That, however, I consider as immaterial, because I think that under the army regulations he was in the 'military .service as a private, as soon as he was dropped from the rollas an officer. See Army Regulations. .

It is agreed by the counsel that a Register., of a county is a civil officer of the State ; and that the Governor had claimed the petitioner as an exempt from military service in the army'of the Confederate States.

TJpen this statement of facts, it is contended by the counsel for the petitioner, first, that he is entitled to a discharge from custody upon a just construction of the second paragraph of the'IOth section of the act of Congress,, ratified on the 17th day .of February, 1864, though he was in the military service when he was elected Register of Nyde county. Secondly, if that be not. so, that-after his' election and-qualification as a civil officer of the State, he became exempt from any further- service in the army of the Confederate States, because.Congress has no power to restrict the State in the selection of. any of its citizens, ■whether in or out of the army, to fill any office necessary to the’action of the government;- I differ from the counsel as to the correctness of his position, and will pro-need to state, as well as I can, the reasons upon which my opinion is founded:

1st. In ascertaining and settling the construction of the military act of February, 1864, it is proper to avail ourselves of any light which may be thrown upon the subject by any statute, in pari materia, particularly if it were passed about the same time. 1- Black. Com., 60.

It appears from the act of Congress, approved the 5th ■ day of January, 1864, cuiitled “an -act to put an end to. the exemption from military service of those who have heretofore furnished substitutes,” that the country was 'then in very great need of soldiers. The preamble recites that — “ Whereas, in the present circumstances of the country, it requires the aid of all who are able to bear arms., the Congress of the Confederate States do enact,”' &c. This most pressing want of the Confederate government is, if possible, still more strongly shown in the act 9 under consideration. It repeals -all former laws whieh granted exemptions* and thus at once sweeps away the long list of exempts which may be found in'the act of October, 1862. It enlarges the ages of conscripts from 18 •and 45 to 1.1 and 50., thus calling into the field of active service boys and old men. ...It takes from their homes almost every person capable of bearing- arms, except those officers who aré necessary to the proper administration of the Confederate and State governments, and a few others who were deemed necessary to carry on the educational, • •industrial and other indispensable pursuits of the country, with the addition of a still fewer number who are re-. strained from bearing arms by religious scruples. With tbis most urgent, pressing-demand for soldiers for the de-fence of the country in its life and death struggle for national existence,.placed thus prominently before us, have we a right to infer that Congress intended, by the exemptions which it granted in the act of February, 1864, to release from further service in the army any soldier whom it had a right to retain there? Tt séems to me to be ignoring the whole spirit, of the act to suppose so. 1 cannot come to any such'conclusion, unless I find it so declared by the express terms of the act.

So far from finding any express declaration in the act to that effect, .the terms of exemption may .be fully satisfied by confining them to the persons, filling offices, occupying positions or engaged inr pursuits,- at the time of their enrolment. In some cases the persons exempted must have been employed in the duties of their office ©5 profession, at the date of the act, and could not entitle themselves to an exemption by subsequently engaging in such office or profession, even prior to the time of their enrolment. This is the case -with regard to ministers of •Religion, physicians and. school-masters.

All the farmers oí the country are put into the army except the bonded overseers of fifteen able-bodied field hands, and even they, it seems, might have been deprived 'of the benefit of this exemption had they been enrolled since the 1st of February,-1864, but for a special provision-in their favor. See 4th par. of the 10th sec.' of the act of February, 1864. Looking, then, over the whole act, from the first section to the last, I am unable to discover anything, either in its language or spirit, which releases or exempts from service any person already in the army as a soldier. The fact that, by another act of Congress, offi-ecrs and soldiers in the army may. become exempt from' further service by being elected to certain offices or places of trust, either in the State or Confederate government, does not affect the present -.case, which depends, in the view in which I am now looking at it, entirely upon the construction of the act of February, 1864.

2d. The second position taken for the petitioner by hia counsel, is a much more important one, affecting as it does the relative powers and rights of the Confederate and State governments ; and, I therefore, approach it# discussion with much diffidence, particularly as I find that the conclusion at which I have arrived, k ut variance with, the opinion entertained by many of those, for whose learning and ability 1 entertain the highest'respect. The difficulties of the case arise from the fact, that .the same persons are citizens of two separate and distinct sovereigns, to both of which they owe duty and allegiance. If the constitutions, upon which their respective governments are based, he rightly construed, and rigidly adhered to,, there -will be little or no danger of their .clashing, or interfering with each other in their respective.demanils of service from .the people. In the distribution of the powers of sovereignty, it is conceded that the States have conferred upon the Confederate government the war power, that is, the power to declare war, and tp raise and support armies. 'It has been held lu all the greatest statesmen and judges of the. country, that this power is,' with a slight exception, unlimited. In aid of this and'the other powers, vested in the general government, the Constitution declares, that Congress shall have power “ to make all laws which shall be necessary and proper for carrying them into execution.. See Art. 1*, sec. 8, par. .18. And it asserts the supremacy of the Confederate. States, as to the powers conferred upon -the - government, by declaring that “ this Constitution, and the laws of the Confederate-States made in pursuance thereof, shall be the supreme law of the land and the Judges in every State shall'be bound thereby, anything in the Constitution ®r laws of any .State to the contrary, notwithstanding.” Although the'war power of the Confedérate government is thus absolute and unlimited in ternas, and the supremacy of that government over the States, with regard to that power, is thus clearly and distinctly asserted, it has been decided, and I think rightly decided, that the Confederate government cannot, in the exorcise of the war power, destroy the States, by conscribing those officers, who are necessary to the action of the State'governments. See Burroughs vs. Peyton, decided by the Supreme Ceurt of Appeals of Virginia, and recognized as authority in Johnson vs. Mallett,decided by tins Court. Whatever persons filled any office-in the State, which the Legislature declared to be necessary for the State government, when the act of February 1864,was passed,were thereby placed beyond the power of conscription, by the'Confederate government. That government is founded upon the State governments as sovereigns, and eannot exist without them. The superstructure must fall when its pijlars are taken away or destroyed. • ■

But the case is reversed when the' Confederate government has, in the exercise of its rightful supreme war power, conscribed into its service a man who is not an officer of tbe State, and the State is attempting to take him. out of it,' by electing him to an office. . The man,, as a citizen, owed the duty to the general, government, which it had called upon' him to perform, just, as .much as he owed the duty to the State, to accept and discharge ’the duties, to which he' was elected. 'Here are two obligations undoubtedly binding upon the man,- but which being inconsistent, cannot both be performed at the same time. How can this conflict be settled, but by resorting to a principle of potent efficacy'both in'international arid municipal law, that priority of possession -gives priority -of. right? This would seem to be a just rule,'even if the' two governments were equal in their powers with respect to the subject; and it surely cannot operate against that government whose power, in that particular, is supreme.

The State must-,' in -such a case, yield to the prior claim of the general government, and select some other man to fill its office; The argument that perhaps the State cannot find another person out of the army fit for the place, is answered by the equally probable supposition that 'the general government may net he able to procure another fit person for a soldier. When either supposition shall become certainty, it will he when both governments are on the eve of destruction.

• The petitiener, in the present ease, is not one of the officers of the State who is recognized in its Constitution as being essential to the government. If he were so the argument in his favor would be much stronger, perhaps irresistible. The' Constitution . declares, in express or .necessarily implied terms, that there shall he a-Governor, Judges of the Supreme. Court;, Justices of the Reace, a Sheriff, a Coroner or Coroners and Constables in each county; a Secretary of State and' several other officers; also members, of both houses of the General Assembly ; and it may he that with regard to all these the. State never surrendered the right to have the officés and places filled by any of her citizens, whether they should he, at the time of their election, in the service of the general government or not. This is a question of the highest importance to both governments, and I will not- undertake to decide upon it until it becomes necessary,' in the performance of my judicial duty, to do sq. It may also deserve more consideration than .the subject has yet received, whether the Legislature can deprive the State of any ©f these constitutional officers by. permitting them to be conscribed/as it purports to do as to some of them, by the act of December 14th, 1863. See laws _of _ the extra session in Dec., 1863, ch. 14th.

My conclusion, upon a full, consideration of the whole matter, is that the judgment which I rendered in vacation, in favor of the petitioner, founded, as I expressed-at the time, upon the previous case of Russell vs. Whiting, decided by the Chief Justice, was erroneous, and ought t@ be reversed, with costs ; and that the petitioner must be remanded to the custody of Major Peter Mallett, Com: mandant of Conscripts. . .

Manly, J., concurred.

PeársoN, C. J.,

dissenting. It is a matter of- regret that the Judges of this Court have not been able to agree upon all of the questions to which the general conscription act, February 17th, 1864, has given rise. But the ground was untrodden.. There were no cases to guide ns, and perfect .concurrence of opinion was hardly to be expected. ' '

So far as .the opinion delivered' by my brother Battle is based on the doctrine of necessity, “ which knows no law,” and the principle that, in respect to individuals, the war, power of Congress is unlimited — those questions being settled by Walton vs. Gatlin, it is my duty to "conform to that decision. . ' . -

That case did not present the question, whether the war power of Congress is also unlimited in respect' to the States ¿ which is'“the point” in this cáse.

Johnson vs. Mallett at the extra term settles the principle that in respect. to the States the war power of Congress is limited, and is subject to their reserved right in regard.to their officers ; and on that ground it*is decided that a State officer is not liable fo conscription. • , ' • ■

It is conceded that this right cannot be impaired by the action of Congress, .and the difference of opinion is as to the extent of the right. Is it confined to the keeping, in offices persons. who may be in ' office at a given time ? or does it extend' to the filling of, vacancies which from time to time may occur ? That is the question. ■

The ground on which this right is based is, that the existencé of' a State' depends on having such'officers as are necessary to administer its government and laws. Therefore it cannot be intended, that in creating the government of the Confederate States, it was the design of the States to confer a power, by which, their existence would be made to depend on the will of their creature.

This is a broad ground, and it embraves as well the right to' fill vacancies, as the right to keep in office, persons who may be in office at a given time ; for the former right is «equally as necessary to the continued existence of a State as the latter : and no State can have an independent existence without both. ' In fact, they are but parts of one and the same right. • This being so, it follows that neither part can be impaired.by the.action of Congress : .and it must be conceded- that the part in relation to filling vacancies is decidedly impaired, if it be restricted to the' election or appointment of men who are ever conscript age", exempt as a “ matter of grace ” on the part of Congress.

B,otb being necessary and covered by the same principle, I can see no ground to draw a dividing line between the two parts, except to “'split the difference*” between the claim of the Confederate States and the reserved ^rights of the States, because of a “ present necessity ” on the idea of “ letting the future take care of itself.”

To meet, this difficulty. a'distinction is suggested between the offices named in the Constitution, and offices created by the Legislature." * This suggestion does not meet the difficulty. It was not to be expected that an instrument like the Constitution would enumerate all of the necessary State offices, and, \ therefore,,, it, confers on the Legislature power to create and fill all • offices which, in its wisdom, should be deemed necessary ; and there can be no substantial difference between offices named in the Constitution and offices created zmder its authority,■ both" classes of offices being necessary for the proper administration of the government and laws of a -State — in other words, to preserve its existence ; and the power conferred on Congress is subject to the rights of the State in regard to both classes. Indeed, it is decided by Johnson vs. Mallett, supra, that the part of the right in relation to keeping persons, in office, embraces offices-of the latter class as well as offices of the former, class ; so the. only question “ open ” is as to that part of the right-in relation to filling vacancies. This suggestion, so far from disproving that part of the right, yields a part of the question and makes it more difficult to maintain the other. To make the subject clear, take an illustration from the operations of war, that being the order of the day : The main work in front is carried by Johnson vs. Mallett; the work on the right is yielded by this suggestion, whereby the work on the left becomes so exposed in front and flapk as to be no longer tenable.

Again it is suggested — “ The-two governments should act in harmony, and to do so,, the government which first exercises a power ought to be allowed to- retain all citizens who have.been taken into its service.” . No ®ne feels a deeper conviction than I do, .that in order to presérve harmony, each government should be allowed, the fullest exercise .of its rightful powers.. But the suggestion under consideration interferes with the exercise of a rightful power o,f the State, and assumes the powers of the two governments in regard to this subject to be concurrent. This is a departure from the principle settled in Johnson vs. Mallett, to-wit: That the war power of the Confederate States is subservient to the reserved right of the States in regard to their officers. In my opinion the proper way to preserve harmony and allow u each to move in its appropriate sphere,” is to «onsider Congress as having exercised its powers of conscription, subject to the preferred right of the States, so that when it .becomes neces-; sary for a State to exercise the preferred right, the prior action of Congress shall give way and allow the election of a State officer to fill a vacancy,- to have - the effect ipso facto of terminating the conscription of the person elected ; in the same way and on the same ground that one in the militia or home guard service of a State, as soon as he is conscripted, passes into the service • of the -Confederate States, because the war power of the State is secondary, and the Confederate States have the preferred right under their war power. (See my opinion, Wood vs. Bradshaw, at this term.) This principle may be illustrated by many analogies of the la-y. One will suffice : A sister takes as heir of ber brother — afterwards another brother is born. At the common law the estate of the sister terminates, and gives place to the right of the brother, under the rule —“ males are preferred to females/’

The other point as to the meaning of the act, séction 10, clause 2, is of minor, importance. But l am so unfortunate as to differ in respect to that.also. I can-see nothing in this clause to confine its operation to persons who, at the date of the act, filled thé offices of Yiee President, members of Congress, members .of the Legislature and other Confederate and State offices, and -to exclude from its operation all persons who may afterwards be elected to these offiees, if they are at the time of their election in the military service of the Confederate States. The conscription, by the act, February, 1864, is general, and applies as well to persons then in service, to keep them in during the war, as to persons not then in service. The exemption must have as broad an application as the conscription, unless there he words of restriction. The only words used are, “shall'be exempted,” which mean* “shall be relieved ” .from the service imposed by the conscription. Such being the plain meaning of the words used, it must be taken that Congress so intended, and there is no room for construction.

If words at all ambiguous had been used, the rule of construction, that the Court, may derive aid from other statutes in pari materia, or from the preamble to a former statute, made for the special purpose of justifying an act, which, to many, seemed to be in violation qí a centraet, might have been applicable; and, on the other hand, it might have been relevant to have made the suggestions : that the exemption in regard to State officers was meant to extend to persons in the army, elected to fill vacancies, in deference to the right "claimed by the States ; that it is unreasonable, to suppose it was intended to confine the -States, in filling all vacancies that might thereafter occur, to the election or appointment^ of men over conscript age ; and that in regard to members of Congress and other Confederate officers, it would be indecent to suppose that the members' in at the da’te of the hot, intended to exclude from competition with themselves, at future elections for Congress, all of their fellow-citizens, except men over the age of fifty years J

In my opinion there is no error in the judgment at chambers.