Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1830-04-06
COMMUNICATED.
COURT OF APPEALS.
Commonwealth rs. LHly's administrator.

Commonwealth rs. LHy's administrator.
OUDGE GREENS OPINIoN)
have, from time to time since this was last ar
gued, devoted all my faculties TO it, examination, not
only on account Of the intrinsic difficulties OF the ques-
ton which II presents, and the important interests in
voved in its decision but account of the remaka-
ole difference oil opinion respecting IL, Existing for
mere than 40 years in the Legislative and Judicial De-
partments OF the Government-The question is, whe-
Their the Snpernumerary Officers of the State Line and
Navy oil Virginia, (who were put upon the same foot
ing, in that respect, decided i'm Markham's case
are entitled to half pay for lfe although not serving
to the end OF the war, if not required TO do So For
Capt Lilly did not to the end OF the ar in the
sense OF the act of l779 if the war were to be
considered as ending with the capture of Lord Corn
Wallis.
thought, until very recently. that there were
strong motives TO Influence the Legislature in making
discrimination between those who served TO the end
oil the war; and Supernumeraies Especially tho great
number becoming by the reduction Of ii egiments
or battaons, in l777 from 10 to companies and ne
yer again called into the service-and that such dis
elimination had been made: That neither the words,
command or'-nor the provision for Supe rnu mera-
ries, in the act of l779 rendered nugatory by
that construction, since the words command or SER
vice., might we'll be applied disributivey, officers
who, when in actual service, had command and
such as had no command, Chaplains, Physicians &C.
and special provision necessary for Supetnume-
rares ii they were intended to be provided for in any
case whatever:-since none such, whether then being
or thereafter becoming Supernumerary, could claim
under the former part Of the provision as thew could
not claim as having served "henceorth (from the pass
ing OF the ACTOR from the time of their being COM
missioned until the end Of the war; That no subse.
quen act Of legislation, had varied or settled the con-
srucon OF the act of I779-and that no construction
could be put upon the words OF the of 1779 which
would not have the effect of rendering nugaorv or su
perhuous and unneaning, either the expression, if
required 20 to do the requisition to serve to ths
end of The todr''-to secure which service seemed IN
be the sole object and policy of the statute; and il one
or me other OF those expressions rejected az
mere surplussage, could not hesitate between them
and this would he the necessary consequence if the
expression, il required to do" referred to and
qualified only the preceding expression, and shall
again enter the said service and not the
expr esson, and continue therein unit, the end Of the
war;; in which case, the last expression would impose
an absolute condition, not qualified by the expression
IT required so 10 do'-and this was the natural eff.
iect OF the words in the context in which they stood
| Subsequent reflection has satisfied me, that was
mistaken in this last particular II does much less VIC
lence TO the language of the Statute TO consider the
expression, il required to do" as pervadinq and
qualifying the whole sentence make il read in
effect, as II those words ransposed the be gin.
ming or end OF the sentence, "and shall if required so
to DO again enter into the said service in the same or
higher rank, and continue therein until the end Of the
war;, or " and shall again enter into the said service
in the same any higher rank, and continue the
until the end of the war; if required s, TO do" than 10
reject them as mere surpiussage. The expression ain
The same or any higher rank" ortjes this construc-
ton: II seems 10 have been Inserted for the purpose o
preventing the Government, from requiring an officer
TO enter the service again in rank inferior to tina, in
winch he had before served aud thus, If he refused TO
impose upon him the forfeiture of his right 10
these words, taken in connexon wish the words if
required TO do, and treated in The same way would
give meaning TO the whole sentence az IL il were
written, and shall again enter into the said service
and continue therein until the end of the war if re.
CURED so do, in the a higher rank and ,bi,
mink, is the true construction of the S,auts-Capt
Lilly was therefore, entitled 10 half-pay for life
Has anv thing occurred TO impair that righ,?-The
a'ute oil Limitations does not this is any ac'ion or in
the nature OF any action, limited by tina, acts: claim
founded upon Legislative Acts presented in the peculiar
orm prescribed by law; does the question arise whr
Their the Joint resolution of the two Houses of The
General Assembly OF Dec. 1888, prohibiting the ssu.
ing Of warrants or certificates for haIfn until a.
further order Of The General Assembly and which was
revealed by the act OF 1890 only far as related 10 The
officers OF the State Line, who had served the end of
me walls an impeachment to the claim Of Lily, re-
Presenatives for that resolution did not embrace the
officers OF the Navy. The warrant ought in point Of
law, 10 have issued when applied Tor.
The only question which remains is, whether inter
est ought 10 be allowed upon the arrears Of half-pay
do not think should. The real and intrinsic difficult
y in these questions, in respect TO the baf-pay of o.
ficers Of the State Line and Navy, serving to the
end OF the waf-the conflicting oninions i'm tile Judi
claI AMI Legislative Departments, on that subect-and
the hnal decision OF the Supreme Court of Appeals
against those claims, the Governm en from the
lmPnta'lon Of any wrongful delay in satisfying them
and the aches s on the part Of the claimants al least
on the part Of such of them might without impede
fnent have resorted TO the Courts Of Justice.
oyigire, form d S%sB Blu Of Aay 177o.
citizens &c 3 oS SS of The " sd s army being
subaerns commanding tho troops on CONT
mental establishment and accounted Of tho
Commonwealth who shall hcncoforwnd time of
Gr being commissioned until tho cod Of tho shall DO
commando
Amended by striking "Gae ne eouqeata by inserting
TROOPS" ~ '' "
= Wy striking ont "aHd accounted part Of me quota Of
Cogoeoeaih" and inserting thereof "or serrag IL Tie
6at1oHs rdd r he immediate defence of
ing afterwards and after "aoe of STATE tho words or for
re dg.p Of ne limited SUITES beg citizens Of mis- Commonwealth
% not eerg ~ sciee 81 Geogiq NJ any oit Sa grovdod
40 not make provision
B. Add by inserting acr of he aoar tho words tagd all
gc officers hg hare sbau become prnamary reduction
~ ayg ne san baNdons and H enter into the srd
"o.er required 90 bdo ~ ne higher rank and
ti'aHc Dtcrei9 until 1o end II ne MARI
Amendments Nv tho senate.
l. Wy striking last amendment above mentioned
"mheaercr" aud inserting IN Lou thereof, H."
2 By inserting after tho words bill "eonmaudin0
| the words cor shall command0 ~"
The other amendments those
oy the cons uction IN favour Of again
called into service 's'