Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1864-02-17
For the Standard.
In the Matter of Rradshaw.


discharge OF the duties of his Office In April 1863
ne was sent to the camp Of instruction as con.
script on the 9th of May, 1868, he sent to the
army where he served about six weeks. On ion.
ing the army, he received bounty but has never re.
ceived any pay; he came home on furlough until
MS case could be decided A correspondence was
mad between Gov. Vance ana the Confederate au.
tnor'les, which need not be set forth On the 10Th
January, 1864, he sued outa writ of ha5eq. corpus
May l., 1863, Congress enacted, ain addition to
tns State officers exempted by tho act lst October,
lS6z, there Shall be exempted all State orflcers
whom the Governor of any State may claim to have
exempted for the due administration Of the govern.
ment and the laws thereof" &c.
May 9, 1853, Gov. Vance claimed to have exempt
Cd "all justices of the peace" &C., "cons,abes who
entered into bond previons to the 1lth MAY, 1863,
and their successors in Office" &c. :.
December II, 1868, the Legislature adopted and
made Permanent the claim which had been made by
Gov Vance,
l.. The receipt Of bounty by the petitioner was a
waiver to any claim to exemption under the act DC.
tober IL, 1862; but of course, 1t could not have
the legal effect of being waiver of any exemption
to which he might afterwards become entitled Its
euect is 10 put him in the condition of soldier, hav
ing at that time no right to exemption
2. The next question is, did his being placed in
the military service as conscript racate his office
OF constable or did he continue to hold that Office
while ne was in the condition of a soldier? Alb
sence from the country non user does not nor 80
deprive one of public Office it may because of for
tetue but the Office continues until there be prop
er legal proceedings to put him out of it. This is
well settled; 81. Com 153
-. The question then is narrowed to this: Does
the act OF Congress, and the claim that Gov Vance
made IN pursuance thereof, and the act OF the Leg
lsature, embrace the case of q constable who WAS,
at tie date Of the claim of the Governor, in the mill
tary service Of the Confederate States; or is the ex
emption confined to constabes who were not in
military service? The words Of the act of Congress
are general: There shall be exempted all State
cDeers whom the Governor of any State may claim"
DC. The words of the Governors claim and of the
act OF the Legislature are also general" All justices
Of the peace, &C., constabies who gave bonds pre-
vious to the llth May, 1868" &c.
can see no ground TO except, from the opera
ton Of these general words State officers who were
in the military service. If such was the intention,
proviso to that effect would have been made;
ard there is no rule Of law under which it can be
made by construction. l am, therefore, of opinion
that the petitioner is exempted
1t was suggested in the argument that the ex-
| ception should e made by implication from the
use of the words 'sha be exempted" and it was
said that the word exempted" is restricted in its
meaning to persons who are not in the military
service, and "diseharged" is the proper word,
when referring to persons who are in the military
| service. This distinction may obtain in military
circles, but the word "to exempt" is not tech
nical term it is plain English word, and means
literally ITO take out of or FROM and its ordinary
signiGcation is "to free FROM not be subject to
| any service or burthen to which others are made
liable; as TO exempt from military service to ex
empt from taxation; and it is settled rule of con-
structic:., words in statute are to be construed
according to their ordinary r,-."i,g, unless there
| is something to show they used in df1eren,
sense. The Courts cannot expect Congress TO take
notice of the military parance, and require, in
der to express the intention that all the Stale OH
GERS whom the Governor may claim as necessary
&c, shall be free from military service, that this
particular mode Of expression shall be adopted, tG
wit "All State officers not in the military service
shall be exempted and all who are in the military
service shall be discharged, when the Governor
may claim as necessary" &C. IT,, meaning as ex-
pressed by the act of Congress to exempt all State
| officers, is clear and the words used to express
| the intention are appropriate according to their
we'll known signi6cation.
1t was further suggested that from the nature Of
the subject the act should lie construed not to
embrace State officers who are in the military ser
vice; and it is assumed that Congress did not in.
tend to take any one out Of the army. There is
the same reason to assume that Congress did not
intend to keep any one out Of the army! 1t may
be said on the other side the power Of Congress to
| conscrpt was seriously questioned and especially
its power to ccnscript State officers who were neces
sary for the due administration of the government
and the laws thereof, and this extended exemption
was concession designed to avoid all conflict with
the Statcs and the use OF the peculiar words whom
the Governor of any State nsay claim to have ex-
empted" countenances this idea. But these are
conjectures on political questions into which the
Courts are not at liberty to enter.
>f md Rruon IN Nrhy yrh
it is held that the conscrption acts do not embrace
persons already in service and the cases OF Guyer
and others, in which it is said that the exemption
act of the 11th of October, 1852 did not embrace
mechanics between 1S ard 35 who were already in
service may seem at first blush to oppose the con-
clusion to which have arrived; but upon exalnin-
alton, these cases will be found negatively to sup
port it The general words Of the CONSUMPTION acts
embrace all white males between l8 and 35 and be-
tween So and 45, and it is only by reference to
the nature of the subject and the context that per-
sons already in service were excluded The nature
of the subject for there was no occasion to con-
scrpt persons in service for three years or the war;
they were soldiers already. The contert; for the
nrcyision as to camps Of instruction. calling the
men into service at different titres &c, were not
anpcable to persons already in service
So the general words Of the exemption act OF llth
October. 1862, embraced all shocmakers, black
snths &c. and it is only from The context that
.shoemakers blacksmiths, &c, already in service
were excluded They were required to be "aetualt,
emplovsd in their respective trades at the time,
which, in reference to those between IL and s5 wa
held to be at the passage of the act in order to d
it to the conscription act of April, lS62; ana II
reference to those between 30 and 40 or who atter
wa,ds come to the age of IL, ''at the time" il
taken to mean when called into service; and THU
actual employment in their respective trades eou VI,
have no application to men who we're in the mta I. a
w service and so could not Le actually employed
their trades
Rut in our case we have seen there il nothing !:
the subject matter which the courts can JUDICIAL
t.ke notice Of, and there is nothing in the con.ex
to control the general words, 80 as to e1elnee oa'
s;ne .sa position to be correct of which there ca
be Nd I'd doubt, that being in the military service dc'