Smith v. Prior, 60 N.C. 19, 1 Win. 19 (1864)

Dec. 1864 · Supreme Court of North Carolina

60 N.C. 19, 1 Win. 19

ROBERT H. SMITH vs. JOHN N. PRIOR.

A man who has berm enrolled, btontr.ep ¡hoiv'-y a sro-’i- i in the army of the Confederate States, and his appointm'".! ¡íftcr.ynrds t" »'i under the State goveromenr,, dors riot .-rstiihim to *x--it'

The Governor’s c.Ttifii'nte has ,10 efteel in s'l.-h a .as,, tor tin; p-rton is not an officer, his appointment. O- Cg voiti.

This was a writ of certiorari at flic suit of Lieutenant John N ■ Prior, Jfiurolling officer of the Sth Cougi ossimial district, directed to Chief Justice -Pearson,' for the' purpose of reviewing a judgment given by him in a writ of habeas corpus sued by Robert II. Smith against John N. Prior. *

Besides the ibets stated iu the opinion of the Court,,'it appeared, by the return of the Chief. Juslice, that in February,-18f>4, a writ of habeas corpus was issued at the suit of Robert H, Smith against Lieut Prim-, returnable before the Chief Justice, and that on the tiial of it by him, be adjudged that Smith was unlawfully held in custody, and' he ordered that Smith should bo discharged ; and, at the «ame . time, this discharge was made, subject to the decision oi' the Supreme Court in the case of Walton, and the appointment of' Smith to be a watchman of the town of Salisbury, was made after the decision of the Supreme Court in Walton’s case.

Boy den for the petitioner.

Bragg for Lieut. Prior.

Mwkly, J.

The facts of this case are, that after the act of the 5th of.January, declaring, persons who had fur'nished substitutes no longer exempt, the petitioner was enrolled and ordered into camp.

But, as there was .then pending a case in this Court, iu •which the constitutionality .of the act of the 5th of January was to be tested, it was agreed that further proceedings in. the petitioner's case might bé suspended until the decision of the Court was known, In the meantime the petitioner 'was released on furlough. Afterwards, and while on furlough, petitioner received she appointment af watchman for the town of Salisbury. Having been again brought into camp, after the decision in Walton’s case, he sued out this writ, which was heard and decided at Chambers, and is brought here by certiorari, at the instance of the general government.

Upon thus State of lads, we are uf opinion the petitioner is not c-nihljd-EO c.c.snption by reason <>f his appointment as watchman oí the town of Salisbury. His enrol]merit, 'prior to such appointment, put him in military service, and he could not be elected out of it into a city watch. It is not necessary that one should be in the field, as we conceive, to constitute him a soldier. If he has been enrolled by legal authority, and put on furlough, his state is as firmly fixed 'as if be were in the" trenches, confronting the enemy. „ ''

We have had occasion to explain more fully the rights of the respective governments of the State, and of the Confederate States, in matters of this sort, in the case of Up-church, decided at this term, to which reference may he had. ^ 1 *

We can conceive of no greater reason why the State should have the power to take away from the Confederate States, persons appointed to places of duty, than the -reverse of the'proposition!!. Neither; in our opinion, is necessary, and neither is constitutional. Still less can it he supposed, that'a soldier can bo taken out of the army by the State, and appointed to office: .especially, when we consider the .paramount powers and duties.of the general government, in respect to war. The exemption certified; does not seem to be material, according to the 'view we take of the case. Exemptions are granted, by the act of. Congress to specified officers of the ¡State government, and to such oiiier officers as i'.o Governor shall certify.to be necfiSW’.ry. Hut Smith is nofan officer, and therefore, not in the- dass which the Governor's‘certificate could avail. ■Being í, soldier of the Confederate States, as we think he was, by the- ads of enrolment and furlough, he could not dives- himself of the character, except by the will of these States.

There is error, therefore, iu the judgment at Chambers, discharging the petitioner, and lie is hereby declared subject to perform military service to the Confederate States, ♦and is therefore recommitted to the officer, John H. Prior, or to such other officer as may he in charge of the matter.