Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1863-02-11

suppose that It's language would 10 some man
! uer have conveyed that purpose But Wnen lt
exceDts from its operations those who are legally
/ exeaptsd from military service, be who exhibits
q discharge granted to nm by eomPetsn1 i.l al-
tboritv. which exemptS him rom military ser
vice. is fairly to b9 considered IS one oi that
class Who are excepted from the operation Of Ih9
act And Il Congress, bJ new ees' e@ls1
into service those who lFe1e not hsole uii49t lH9
former set, It could not operate only On snyS9
vbo had not vet undertaken TO rsnder Znillt%fy
service. If one had already enrolled anQ mus
tered fn for three years, unless the war slAL
have sooner ended, it is not to be supposed thal
Be would be discharged for the purpose q Dellg
again enrolled and mustered in Tor the SAINT
tenn
There is no doubt that one, although not en-
braced in the terms Of the act approved the
10Th April, 1852 nevertheless could oy yolun-
tary engagement, impose upon himset the same
obligations Of military service IS If he were
called out under that act If by subSeqaenL
set he became included in its provisions, o0tn
acts contemplating the same service, be woqie
not be considered among those who were cailsl
forth By that subsequent act BE had, By his
own engagement, consented to be considered az
one who had been legally called He hsd been
sccspted, and in that was recognized as one who
had been properly called To say that ne was
subject TO q call for military service, while he
was ia the actusl discharge Of that service 70
which he bad been presumptivsly already called,
would seem to involvs the question Of actual
and prospective liability in great deal OF con-
fusion.
The act Of the 9th September, 1852 cannot
| be considered as sustaining the construction,
that 4 subslituts within tha ages which it makes
subject 20 the call Of military ssrTiee is, by It's
! operation, prevented from containing to na, z5
be was when accepted legal substitute under
! the act Of the 16th april, 1862. If the act Of
Congress then does nos require that construction
which il set forth ia general orders No. 64, dated
/ Sth September, 1862, IN these words, "a subsH-
tut3 becoming liable to CONSUMPTION renders his
/ principal also liable unless exempt on other
/ grounds " and if ne special order Of the Presi-
dent has been ssued TO the same erect, 1t only
remains 70 inquire whether, unde. the 9th sec
| ton of the act approved 18Th April, IS52, the
! Secretary of War wss authorized to declare, by
I general orders No 6l, that for the causes there
stated the liability oi the principal for military
service should be renewed
That sha power given 70 the Secretary Of War
20 nnsks regulations for the admission Of su5st-
/ futes would authorize him 20 modify these Iegu-
latons according 70 his convictions Of expedi-
eucY viii not be disputed But that such 8
power esn be exercised SO IS to affect one who,
| having complied with established regulations,
has ta7TeuDon besn discharged may well be
doubted. Retrospective legislation, having rat
respective operation, IL a recognized but 3 very
high power Of government. When exercise, =
| is always upon the ground Ct somo manifest
public policy. That Congress intended to admit,
in certain cases the privilege Of substitution, is
clear Thst It could take away that privilege
By retrospective legislation, IS equally clear.
That its delegation TO the Secretary of War Of
the power to make regulations concerning sub
slitutas, would authorize that officer, If he had
considered it necessary, 70 inssyt IN the ais
charge The condition thst If by subsequent legis-
ladon, the case Of the proposed substitute was
embraced, TIE substitution would be svoided,
and the discharge imperative, Is also clear But
that without the insertion or expression of any
such condition, Congress intended to confer the
same high power of legislation, which D. pos
sessed So that the Secretary of War could
avoid a discharge, which he hsd granted upon
/ his aceeptancs Of a substitute, cannot be main
tanned.
The orders Of the Secretary Of War,
moreover, have expressly declared the cases in
which the exemption Of the principal procured
by the acceptance Of his substitute, may be
cancelled il fraud or mistake be discovered,
/ the exemption ceases. The expression Of these
two as the cases in which exemptions would
cease, must have been from abundant caution
If not expressed, the same consequences wOuld
have resulted upon the discovery of either But
tho expression Of these is significant of the
fact that it was then considered, except in such
cases, the discharge, if fairly obtained, was
conclusive SO far ss the Secretary of War wa
CONCERNED.
Considering shat the act approved 9th Sep
tenber, 1862, does not support the construction
in general orders No. 81, concerning the liability
of principals who have furnished substitutes
sud that no order Of the President as com
mander-in-cbief has been issued touching this
matter; aud that the power given TO the Secre
tary Of War TO make regulations concerning
substitutes, does not authOdzs him, after he ha.
granted discharge, in q case where neithe
fraud nor mistake is alleged, TO impose nev
condition upon one who has been BY his orde
; discharged from military service; aud by the en-
forcemens of tkst condition impose upon hir
! the performsee of that military service tTor
2 which the order Of that Office has exempted hin
7 am Of opinion that the dstantion Of Leopol
C0hn by the enrolling officer is Illegal. II
order viii therefore be entered for his discasIg