The Chattanooga Daily Rebel. [volume] (Chattanooga, Tenn.) 1862-1864, 1863-03-11
Review Of the Hon. sohn G. Gaat's oPinion
Ia tho EIomiitt,. Case.

was published No novelty attached 70 the
question involved, and it is evidently dis
cussed by Judge Gaut. with less than his ac-
customed care. AS Chancellor Welckers sig
nature is given as mere matter Of form, ne
is not responsible for the opinion, and we shall
treat il as purely thework Of Judge Gaut 1t
appears in the columns of newspaper, ihus
inviting criticism. 1t merits criticism, if ever
judicial action did. There is not the sem
blance of law in it.
Tire following is tile statement Of facts, as
given Ivy the Judge
"That the said petitioner, Thomas y McNillin;was,
on the 2lst day Of January lSO2 duly and legally ap
pointed and qualified as deputy Clerk and Master OF
the Chancery Court at Cleveland, Bradley county
Tennessee and from that time up 10 the time OF ms
arrest he performed the duties Of Clerk and Master
of said Court, receiving the fees and emoumens ol
said office; that by reason Of his said office, Wimm
1. Campbell, Chairman Of the County Court ana En-
rolling officer OF said county, on the l7th day Of Oc.
iobpr, l8s2 gave the said McMillin certificate OF
exemption from military service in the arpy OF the
Confederate States of America, during his continu-
ance.n Office as Deputy Clerk and Master as aloro-
said, which was approved by Col Blake at Knoxville,
the 10th December, 1862; ttGt on the 18th day Of
Decemher 1862, the said Mcmillan was arrested as a
conscript by order Of Maj John H. Hopkins or Lieut..
Col. Blake, or both, and the proof did not distinctly
show which one made the order--he was ordered un-
der guard with the Others who were put In jail that
! said McMhln was transferred TO the defendants,
! Capt Alvin Beegle's Company to avoid gongto said
ia, but under protest that be was nota conscpt ana
was not subject to said arrest"
And this is his statement Of the laws
"The second section OF the Exemption Law, passed
by the Confederate Congress aud approved 90 the
2Ist day OF APRIL 1852, eXempts all clerks and OH
Gers Of the State aud Confederate governments allowed
by law and all judicial and executive officers OF the
! Confederate and State governments" from military
duty and from enrSlmentuude the COnscrpt Act Of
1.-The 10th Of April 1862. The first section Of the Ex-
lempton Law passed by the Confederate Congress and
lapproyed llth OF October, 1862 exempts from militia
ry service III the army Of tho Confederate States un'
der the law Of the 9th September, 1864, extending
the conscript age from eighteen to forty-iye years
1.-THE officers, judicial and executive OF the Coneder
ate and State goyefnments' and "all clerks now in
the Offices oil the Confederate and Sii-te governments
tanthorlzed by law, receiving salaries oriees"
We will strip the case Of the suporduous
law.
The. Exemption Act of April 2lst, 1862, was
repealed October il, 1862, and Judge Gaut
knew it when he penned his opinion. Why
docs he use q law thathe well knew had'ceas
cd to exist Tor three months before he tried
the cause2
Again: By tho act of September 81, 1862
all clerks in the Offices Of the State govern
ments authorized by law receiving salaries OF
foes are exempt This clause could not ap
ply to McAlillin, for the law gives him as a
deputy neither salary or fec. Ills principal
hires him, and may give him what oompensa
ton he peases, but he gets nothing under
and by the law, as an officer. In the act OF
April, the words receiving salaries Of fees
Id6 not occur, ana iifgy We're don0tiess used in
the act Of September to exclude all but clerks
who were appointed OF elected as principal
clerks. II the language OF tho old law had
been continued in the now, it might have
lstrengthened somewhat tho opinion but it
must be a weak cause indeed, that appeals to
repealed statute to supportit it.
The only clause then by which McMillin
could pretend to exemption is that which eSf
empts "all judicial and executive officers O.
tho Confederate and State governments.
"Let .us glance at the facts. Tho Judge says
that McMilin was appointed deputy Clerk
and Master, and he performed the duties Of
Clerk and Master. receiving the fees and emol-
umentsof the oiIices The profession would
term this language exceedingly careless, for
every lawyer knows that deputy does net
and. cannot by the law receive ethe fees and
cmoluments Of the Office" If he gets the fees
OF the office, it is as wages given to him by
his employer This language was evidently
intended to make case under the act of Sep
lember. of q clerk receiving salaries or fooe. "
The point of failure is this; Salaries or fees"
In the law means salaries or fees allowed By
! la1p to the clerk, who receives them; and fees
ard emolumentBY in the Judges case, mean,
lalthough he failed to 80 state, receiving pay
OF the clerk az his hired servant. In the
lIudge's case the services are rendered in the
name of the clerk, ihe fees are taxed in his
name. and must be received and recciptod FOR
Inv him or In his name. The deputy has moth
ling 10 do with It for himself. The deputy rep.
Iresents not himself but the clerk
THO truth Of tho arrest is this; On the
day that the conscripts Of Bradley county
were ordered to assemble, Maj Hopkins and
ICol. Blake held that MoMillin wad subject TO
Icousoripiion, and he, like other conscripts
was placed underground When or by whom
the order to conhne him in jail was given, we
Iprcbumo neither Of tho gentlemen lSuow IT.
thowover, the order was made by any one we
Isuppose Il was doomed 10 be necessary We
understand that McMillin voluntarily joined
Capt, Beegle's company twas held That
he was consoript IL that be 30, and wo be-
llievo The fact is too notorious for denial, he
could not b0 released nom MS QbllgQupn as 2
soldier To obtain such rcliot bis enlistment
must have beon compulsory, and not yolun
tary. Even the "jail order docs not amount
to compulsory enlistment 'm
The Judge, after these se;ss';s'. ''sssbble state
montB Of law and fact, proceeds to make his
argument IIe rests his case upon the ques.
ton: "ls McMillin clerk IA lure by the
flaws OF Tcnnessee|
lie shows by the Codo that the clerk can pp-
point d deputy who, after taking oil the pre-
acrbcd oaihs. haH power 10 transact all the
business Of tho clerl, by whom hoisappoiuted,
aud thon cchcludCs,; We think II is clear
beyond quoeiion that MoMilln Is q clerk Of
the State Of Teiuesseo, with the same power
and authoriyos his principal while IN office
in discharge Of the duties thereof" and in
this Wow oc tho case we arc sustained by the
Supreme Court Of Tennessee 9th Hum
phreys, AIS M
IN Judge Cant had said q wo thtnk II clear