#### Henry Grimke, Esq. ads. The State.

Tried before his Honor Judge Bay, at Chambers, 28th February, 1835.

Motion for a prohibition to restrain the Sheiiff of Charleston District from levying militia fines, &c.

The suggestion states that on the day of December. 1834, he was summonel to do militia duty as a private in Beat No. 4, of the Charleston militia.

That believing himself to be exempt from such duty, and not liable to turn out, lie did not attend the parade — and that afterwards on another day he attended a Court Martial at the City Hall, and made; his excuse for not attending on parade, on the following grounds :

1st. That the act of 1794, declares that any citizen who has held a commission in the militia for seven years shall be exempt from mili» *11tia duty, except in cases of insurrection or alarm — That the relator had held a commission for seven years prior to the passing of the militia bill of the last Legislature, the performance of the condition upon which the privilege of exemption attached, being consummated prior to the act — That the said privilege became a vested right, which the Legislature had no right to divest relator of.

2d. By the aforesaid act of 1794, this State offered to her citizens who were liable to the performance of ordinary militia duty, that those of them who were liable to perform ordinary militia duty, who would assume responsibilities to perform extra duties, and incur additional expense by accepting a commission, and holding the same for seven years, should after that period be exempt from ordinary militia duty.

The relator avers that the offer so made, was accepted by him and duly performed by him at great pecuniary sacrifice on his part. And as the Legislature by virtue of the constitution of this State, has no power to pass any liw impairing the obligation of this contract, the relator claimed this right of exemption.

This relator further shews, that he was summoned to attend a regimental parade on the day of November last. That he did not parade as ordered, and on the 8th day of December last attended a Court Martial, and offered as his excuse the same reasons as above stated, which reasons and excuses so offered, as aforesaid, have been adjudicated insufficient for your relator, and execution has been lodg. ed in the sheriff’s office for the purpose of enforcing the collection thereof.

Believing the said proceeding of the Court Martial to be a violation of the rights of a citizen, and a breach of contract solemnly entered into by the State, the relator respectfully prays the interposition of this honorable court.

From the foregoing statement, I am clearly of opinion, that the clause in the militia bill of 1794, held out an offer of an exemption to the military officers, who served for seven years, that they should be thereafter exonerated and exempted from ordinary duty for and during their lives.

The faith of the State became pledged for such exemption thereafter. It became in my opinion a contract between the State and the individual, which became sacred and binding on both parties.

I do not perceive any substantial difference between this exemption, and that article in the constitution, which declares that there shall not be *any*post facto laws ever passed against the citizen.

When the time of service was consummated of seven years services, the State could never withhold the privilege afterwards.

The act of 1833, says nothing about the clause of exemption mentioned in the act of 1794 ; that clause and the privilege contained in it remains unmolested and unrepealed — and this *is*the universal opinion of all the military officers on the subject.

• In the course of the argument in opposition to this exemption, it was urged, that the constitution does not embrace the contracts of the State, because there is no mode of enforcing them.

*12In my opinion the contracts of States become more binding and obligatory ia proportion to the dignity of the party contracting, and particularly the supreme tribunal of the nation — and it appears then that there is no feasible mode of enforcing the nature of obligations. The State ought to enforce a system of good morals by voluntarily enforcing the punctual observance of contracts of all kinds.

Upon the whole of this case, I am of opinion that the Court Martial had no right to summon the relator for attending on a common drill muster ; or to fine him for non-attendance.

Let a prohibition issue to restrain the sheriff from levying the fine.

The respondent appeals from the order for a prohibition, and move» to set. it aside on the following grounds, viz :

1st. That the act of 1794 exempted from ordinary militia duty only such officers as had held commissions for seven years before the passing of that net.

2d. That if the act of 1794 exempted officers holding commissions for seven years, since that time such exemption is taken away by the act of 18,33.

3d. That the provisions of the act of 1833, by which the said exemption is abolished, does not conflict with the constitution of this State, or with the constitution of the United States.

4th. That the order for a prohibition in this case is contrary to law.

Mr. Justice Eaelb

delivered the opinion of the court.

The object of the proceeding in this case is to restrain the sheriff from levying a fine, imposed on the relator for not attending a militia muster, on the ground, (hat lie was exempted from ordinary militia duty, by having held a commission seven years ; and the court, that imposed the fine, decided against law, when it held that *lie*was not so exempt. Mr. Justice Bay granted the prohibition, far reasons which he has assigned in his report; and the case comes before this court, by appeal, on a motion to reverse his judgment.

The exemption, which is claimed by the relator, is supposed to be contained in the act of 1794,entitled “An Act to organize the militia throughout the State of South-Carolina, in conformity with the act of..Congress.” And the question depends on the construction of that part of the acf, which excuses certain persons, and classes of persons, from performing ordinary duty. The section is in these words, “And be it further enacted, that persons of the following professions and descriptions, shall ■ be excused from militia duty, except in times of invasion or alarm, to wit: the Lieutenant Governor for *the time*being, members of both branches of the Legislature and their officers,” (enumerating many other classes of persons,) “and all militia officers who have held their commissions for seven years.” It is on *13the construction of this latter clause, that the question arises; and the proposition on behalf of the relator is, that this provision is prospective as well as retrospective in its operation, and exempts from ordinary service, not only such officers, as had then held their commissions seven years, but also such as should at any time afterwards hold commissions for that term.

The question depends more on grammatical rules, than on legal principles, and is one of philological, rather than of judicial construction. In the decision of it, we derive very little aid from those general rules, which have been suggested by reason, reflection, and experience, and being ratified by the approbation of ages, are now incorporated with the body of the law, and serve to guide us in seeking the intention of the Legislature, where the terms of a statute are equivocal, and the meaning doubtful. The fundamental principle on this subject, is, that the intention of the Legislature is the meaning of the statute; and when ascertained, will always prevail over the literal sense of the terms. • This intention is to be deduced from the whole context of the statute, and if the terms are ambiguous, may be collected from extraneous considerations, as the occasion and purpose of the statute : “And,” says Ch. Kent, “the intention is to be taken or presumed, according to what is consonant to reason and a good discretion.” But as this clause has not been enacted, to provide any remedy for an existing evil, or to suppress any species of fraud, as it creates no penalty, and divests no right, we derive very little assistance from those general rules of construction, which are applicable to statutes intended for such purposes. In seeking therefore the true meaning of the clause in question, we shall be confi led mainly, to a consideration of its grammatical structure, aided by what is declared to be the purpose of the act, and by what we know to have been the existing condition of the militia.

The act of Congress passed in 1792, had already provided, that every free, able bodied white male citizen of the respective States, residents therein, of the age of 18 years, and under the age of 45 years, should be enrolled i.i the militia, with such exceptions as are made in that act, and such as might be made by the several States. In 1794, the legislature of this State passed the act in question, “ to organize the miliiia, in conformity with the act of Congress.” This apt, likewise, requires to be enrolled and t.> perform militi i duty, all citizens, all white apprentices and male servants, and aliens ; with such exceptions as are included in the section under consideration, “ and all mi-iitia officers who have held their commissions for seven years, who are excused, except in time3 of invasion and alarm.” The last section *14of the act repeals “ all laws heretofore enacted in this State, respecting the militia.” There was then, at the time of the passing of this.act, and bad been long before, an organized system of militia in lull operation, under laws of the State, up to that time of force, but which ■were then repealed. Under the operation of these laws, there must have been a large number of persons who had served as commissioned officers seven years, and some who had served a portion of their time during the progress of the war, although they may not have been actually then in commission. The act provided for the repeal of previous laws, for the formation anew of companies, regiments, brigades and divisions, and for the election and appointment of all officers, from an ensign to a major general. Of course all the militia officers then in commission, under the previous laws, were thrown out of commission. Such as were then in office, and had held their commissions seven years, and also such officers as had at any time held commissions seven years, were obviously embraced, and were intended to be embraced within the terms of the exception under consideration. In consequence of their former services, and as to those then in office, in consequence of their being deprived of their commissions, they were excused from ordinary rnilitia duty afterwards. And it was right that they should be so excused. It was certainly no mere than a reasonable indulgence. And the Legislature has employed appropriate terms to convey that meaning, and to express that intention, and such as do not appear to be well adapted to convey any othei\or further meaning: All militia officers who have held commissions, that is to say, all such persons as are now officers, or have been heretofore, and have now, or formerly', been in commission seven years. There was then a class of persons, to whom the exception did apply, giving to the terms used, their natural and ordinary signification ; in whose behalf, it was reasonable and proper that such an exception should have been made; and the clause has full and effectual operation, without any strained or forced construction. For the purpose now supposed, the terms are explicit and without ambiguity. .The. class of persons is designated as then existing, and the qualification to entitle them to the exemption, as having been already acquired. It is ,now attempted, however, in behalf of the relator, to give the clause a prospective operation ; to extend its meaning so as to embrace all such officers, as should afterwards hold commissions seven years. “The words of a statute,” says Ch. Kent, “ are to be taken in their natural and ordinary signification and import.” Of coarse the gram, matical structure of the sentence is to be regarded. We are not to suppose that the Legislature was ignorant of the rules of grammar. *15or indifferent to them ; that they did not know the difference between the expres.-ions « have held,” and “ shall have held,” orshall'héréa'f.' ter hold.” That the Legislature did look to the force of terms, as having reference to the past, the present, and the future, and used appropriate words to make the distinction, and intended, in the same section, to provide for persons who might afterwards become entitled to the benefit of the exception, is obvious, from a clause immediately preceding that under consideration. 1 refer to that which excuses *“*three white men to each forge, and five to each furnace, erected or to bo erected.” Had the words, “shall have held,” been used,'there would not have been wanted the authority of Baird *vs.*Rowan, from ' 9 Peters 301, to shew that the benefit of the exception might have been claimed, at any future time, when an officer had acquired the qualification, by having held a commission seven years. Such would have' been the obvious meaning, without resorting to rules of con-, struction. Can the terms actually employed, on any sensible construction, be made to convey the meaning now claimed for them *1*That in their natural and ordinary signification and import, they apply to officers who had been in commission before, and such as were .so at the passing of the act, is not, and cannot be doubted. Can the same words without variation of mood or tense, be made to convey a meaning in relation both to the past and the future ? We think not. It must be borne in. mind, that the relator claims the benefit of an exception to a general law, intended to operate, by express provision, upon all' classes and all individuals of the community, of an exemption from ' the performance of a duty required of all, except such as are excused by like express provision. He must therefore make out his claim to ' the exemption, by shewing that he comes within the terms of the clause, by which it is allowed. Has he shewn this? We think it clear, from what has been said, that the terms of the clause, in their natural and ordinary imporr, do not embrace his case. If there had' been, at the time of the passing of the act, no class of officers or persons in being, to whom the terms of the exception could apply, and the clause would have been void of meaning and inoperative, without the construction contended for, then, *ut res magis valeat quam prreal,*we should have been disposed to give it that construction however different from its obvious import. This not being the case, however, as we think has already been made apparent, we must look beyond the terms of the clause, although ihey are neither equivocal nor ambiguous ; and inquire if die claim of the relator is aided by a consideration of extraneous matters ; whether by having regard to the occasion and purpose oí enacting the law, and making *16the exception, and looking to the existing circumstances of the coun» try, it can be ascertained to have been the intention of the legislature, to allow the exemption which is now claimed. The purpose of the act was to organize, anew, an effective militia, in which all citizen® were to be enrolled. We have shewn that it was consonant to reason and a good discretion, to excuse from service such officers a* had then held commissions seven years ? The argument is, that men were unwilling to accept commissions in the militia ; that the equip, ment of an officer required great expense ; and that the duties were arduous and disagreeable; therefore, it was necessary to hold out the prospect of Future exemption from service, as an inducement to persons to incur this expense and to perform this duty. We are not of that opinion ; we think rather, that always in this State, and especially at that early period after the revolution, in which the militia had rendered such important services, and gained so much renown, a command in the militia, was an object of ambition and pursuit to all, who sought to obtain influence among their fellow citizens. It was one of the avenues to distinction, most accessible to every one, most frequently, and zealously pursued. Nor do we believe that it was then deemed necessary to hold out the supposed inducement to prevail on men to accept commissions. To bear arms in the country’s service, even in the militia, ought to be the bo’ast of every freeman. The honor and distinction conferred by holding a command ought to be regarded as an ample compensation for the expense and trouble ; and the officer who does not so consider it, and who looks forward to future exemption as his reward, ought to lay down his commission, for he can hardly be expected to perform the duties of his station, with becoming zeal or suitable ability.

It is argued, also, in as much as the purpose of all militia service is to communicate and diffuse a knowledge of tactics and discipline, that one who has held a commission seven years, and lias been thus long engaged in teaching others, can no longer stand in need of the drill.' And it is therefore reasonable to suppose, that the Legislature intended to excuse him. But it should not escape consideration, that one who has acquired so much knowledge and skill as an officer, would be eminently useful to his fellows in the tanks, as the most effectual mode of training new levies, is to distribute among them well trained veterans.

When it is considered, that forty-two years have passed since the act of 1794, and th.at the term of seven years would six times have elapsed, if it be supposed that the whole body of *officers*had acted on the construction now urged, had held their commissions, by way *17of bargain, seven years, and then had resigned, claiming the benefit of the exemption, the number of exempts would be enormous, and would alone suffice to show, that such a construction is neither consonant to reason, nor a sound discretion.

It is supposed that the argument for the relator derives aid from cotemporaneous exposition ; that the construction now contended for, has generally obtained among the military, That this is true, to some extent, and especially of late years, we are informed, and admit. But we have also learned, through some of the oldest and earliest general officers, that the interpretation which we now put on the act, is that which was regarded as the true one, among those most con. versant with the subject at the time. But whatever may have been the construction and exposition, then or since, we have now construed the act according to the natural import of the terms, and according, to what we believe to have been the intention of the Legislature.

The view we have presented, renders a discussion of the other' questions involved unnecessary, especially as it has the concurrence of the whole court.

The motion' here made is granted, and the judgment of the court below is reversed.

B. J. EARLE.

We concur,

HENRY W. DESAUSSURE,-

J. JOHNSTON,

DAVID JOHNSON,

A. P. BUTLER,

JOHN B. O’NEALL,

J. S. RICHARDSON.