In re Guyer, 60 N.C. 66, 1 Win. 66 (1863)

June 1863 · Supreme Court of North Carolina

60 N.C. 66, 1 Win. 66

In the matter of SOLOMON N. GUYER, a blacksmith.

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 act of 11th Oct. 1862, were held not to bo entitled, to exemption under that act.

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 elothing, up to that time, it was held that ho was entitled to exemption.

The petitioner was. a blacksmith, and had worked at the trade for ton years. Iu 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 the 8th of July, he was enrolled as a conscript, and shortly thereafter, was detailed at Weathersbie’s request to work in bis armory, where be remained until the contract was abandoned in the latter part of March, 1863. From the last of March to 19th of May, the petitioner was in the service of Capt. Coffin, in command of the armory, and was working there at his trade of a blacksmith; whence ho was directed by Coffin to report to Lieut. Anderson, enrolling officer for the Cth Congressional District of North Carolina, which lie did as soon as be could find him, to wit: on 22d 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 ivas 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, be 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, aud on its return, with the cause of his -detention, the cause was argued by

Gilmer and Scott, for the petitioner.

Sti'ong, Dist. Atto. of Confederate States, and Bragg, contra,

PeaksoN, C. J.

Eor the reasons given by me in my opinion, In the matter of Nicholson, the Court is of opinion that the exemption act of October 11th, 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^*

In regard to tbe proper construction of tbe exemption act, in its application to the conscription act of September, 1862, tbe Court is not called on to express an opinion, as there is no case before ijt, 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, &c., who was, at the date of its passage, in the army as a soldier; that is, who had, prior to the passage of the act, been placed in the military service of the Confederate States in the field. Bat that all “ shoemakers, tanners, &c., under the age of thirty-five years, wh-o 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 serviee in the field, be owing to his not having arrived at the age of eighteen-years, or to his not being in the State, or to bis not having been enrolled by an 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- ns,) or to the fact that when enrolled, the party was detailed to work as a shoemaker, or blacksmith, or wagonmakeiv 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- accustomed wages as a journeyman tradesman, of which hind 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 provisions 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 yyrivate life, and were aotualT/y 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 9th of October, 1862, (two days before the exemption act,) which authorizes the President to detail from the anny, 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 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 eighteen years, after the passage of the conscription act, and the few exceptionable cases where persons under thirty-five years of age had, by the omissions of the Cpnfed-erate officers not been enrolled, would certainly be restricting it too much; on the other, to extend its operation to all shoemakers, tanners, &-c., who were in the army, would seem to carry it too far, and the act referred to (9th October,) taking men out of the Ojrmy, by detail, to make shoes for soldiers, (restricting the number to two thousand,) is inconsist-tent with the fact, that two days thereafter, it was the intention to take “ all shoemakers, tanners, &e., 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 artizans, working at their respective occupations, was not enough to supply the necessities of the public. Erom this we arrive at the conclusion, without going into a particular examination 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 seventy-five per cent, on the cost of production.

This construction varies in some measure, from that given by me to the act in the opinion delivered In the matter of Nicholson ; but the difference does not affect any case now before us; the distinction being that in my opinion then, seldiers were embraced by the exemption act, but those who failed to make their election, and afterwards received pay, rations, clothing, &c., were to be considered as having waived their right to exemption; whereas, in the opinion of the Court, in which I fully concur, soldiers or persons who had been placed m the milita/ry service in the field, were not embraced by the exemption act. Its practical application to the only case of the kind before ns, (In the matter of Dixon,) results in the same way. He was under thirty-five, was in the army as a conscript when the exemption act passed' — -had received the bounty, pay, &e., of a soldier afterwards, up to November, 1862, and was not entitled to exemption; whether 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 was to be remanded.

Pee Cueiam, Let the petitioner be discharged, and rocov-his costs.

* NbU — IN THE MATTER OP NIOIIOLSON.

The facts are: Nicholson is thirty-three years of age, is a miller and millwright — skilled in both trades. He was enrolled as a conscript 8th of July, and was ordered into service 15th of July, 1862. Between the 8th and 15th. of 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 ^t 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 into work for one Ship-man, as a mill-wright, where he worked until the 1st January, 1863, when he went to yirginia, and set to work as a mill-wright 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 matter of Mills, a shoemaker-, and Angel, a wagonmaker, I decided that the exemption act, October 11, 1862, applied as well to -the conscription act of April, as to the conscription act of 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,” &c. — makes no distinction between persons under or over thirty-five, and repeals the former exemption act, showing obviously that the intention was in reference to the conscription act of April, to put tho 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 eighteen and thirty-five, and Governors of the States, Judges, members o,f the Legislature, &c., under the age of-thirty-five, 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 thirty-five. Such a construction is inadmissa-ble. It was said by Hr. 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 retro-active effect, and its construction will present many difficulties. That is true; but when the clear intention of the law-makers that the ono act should apply to the other, 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 matter of Mills and Angel, it was not necessary to fix on the time when the act requires the party to be actually employed at Ms 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 Yirginia 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 lie had been in the army, be.cause of the maxim, “no man shall take advantage of Ms 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 b® actually employed at his trade. It makes a® 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, &c., 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, as tfeeir regular vocation, in one of the above trades, which affi--davit, shall only be prima fade 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 servieethat 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 se easy to fix the tíme. 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, &c., 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 lie 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 bd considered in reference to the intended exemption as still at their trades. This construction is called for by the rulo, “ 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 serviee, the same words cannot have a different meaning in reference to the act of April. Had it not been tho intention to'iacludo all shoemakers, &c., without regard to age, this result would have been avoided,' by adding the words, “ provided no shoemaker, &o., shall be exempted, who is now in service, or has been ordered into service.”' So, the question is'narrowed to this: Oan 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 bo raised, therefore, an intention to exempt any, who were already in service, or who ought to have been in service, can only be infered 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 pi-ejudiced, and it was a «matter of difficulty for the people to get a pair of shoos, hr have a plough sharpened, &e., 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 thaD 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 hflme, can only be answered by the words used. The clause, under consideration,, does, “ in plain and direct words,” exempt all shoemakers, &c., 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 timo,” cannot,, by any recognized rule of construction, make the exception.

And it does, “ in plain and direct words,” repeal the- exemption act of April.- This fact has an important bearing on tho question of construction; for, if it was not the intention that the additional exemptions should apply to persons under thirty-five, 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, Sto., who were in service as conscripts when the act passed, can now claim exemption, or would bo taken to have waived the right, by acquiescence, in afterwards receiving pay, &c., 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 applied.

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 cleric of the superior court of Guilford county, according to the statute in such a case made and provided.

The clerk will file the papers in this proceeding among the papers in his office, and'give copies to Nicholson and Lieutenant Anderson.

R. M. PEARSON, Oh. J. S. 0.

At Richmond Hill, May ith, 1863.