Semi-weekly standard. [volume] (Raleigh, N.C.) 1853-18??, 1864-08-26
OPINION OF JUDGE PEARSON.
HABEAs COMPREHENSIVE VS.. WHITING.

HABEAS COMPREHENSIVE VS.. WHITING.
In 1864 Daniel L. Russell, IT., was commissioned
a Captain Go. G., 36th Regt N. G. Troops. In
February, 1864, he was sentenced by general
court martial " to be dismissed from the service,
which sentence was approved by Gen. Whiting,
so far as to deprive him of his commission" and
the General granted him the privilege of selecting
another company if he desired to do so, and gave
him leave Of absence for thirty days In March,
1854, Russell was appointed county Commissioner
by the Justices of Brunswick county, gave bond
and catered upon the duties of the office on the
llth of March; the Governor certified that he was
q county officer necessary for the proper admins
tration of the government of the State. Notwith.
standing his appointment and the Governors GER
tiffcIte Gen. Whiting claimed him as private liza
Gle 10 military service; whereupon he sued out
writ of hGbeds corpus, asserting his right to exemp-
ton.
The act of Congress, 18th February, 1864, is
general CONSUMPTION law. By the !st section, all
white men residents of the Confederate States be-
tween the ages of II and 80 are conscrpted for the
war The ID section has reference to men between
the ages of Is and 45 in service and the sole
purpose obviously is to make distinction between
them and other conscripts By retaining them in
the same regiments, 6attaLiOns and companies to
tchiGh they belonged at the passage Of the act in
steadof having them enrolled and sent to camp of
instruction. There is nothing in the act to show
an intention to pu: them different footing from
other conscriptS in any other respect TO exclude
them from the operations of the provisions in rela
ton to exemptions 1t follows that the first ground
taken in the return, to wit that Russell being al
ready in service cannot be conscTipt, and conSe.
oGCntly is not embraced by the provision in rela-
ton to exemptions, is untenable. So the question
is: Does the I'd clause of the 10th section exempt
ore who is in service at the time he is elected ap
pointed State officer amember Of the Legislature,
for instance; or State officer whom the Governor
may certify is necessary for the proper admnStra-
tin of the State government; E., q Judge of the
Supreme or Superior Court flor as the act is worded,
these officers, although constituting coordinate
b. anch Of the State government are required to
title themselves to exemption by the certificate Of
the Governor0 or justice of the peace, constable
Vi county commissioner?
The question is;stated broadly in order not to raise
the issue made by the petitioner and return as to
whether Russell at the time of his appointment
was in actual military service, only con-
ructiVey so; for assuming that the effect of the
sentence of the court martial not to dismiss
. linn from the service, and subject him to conscrip-
ton de moro, but simply to deprive him of his COM
mission, and make him private in the company
OF which he had been captain, am OF opinion that
is appointment to the office had the effect of ex
eDpting him from military service, both by force
Of the Constitution and of the act of Congress- and
the certificate of the Governorn pursuance thereto.
The authority of the government: to conscript is
eTNGu HOu Tue pOM6T COilleTTeu OH congress 10
raise and support armies ;" this power from the
very nature Of things is subject to the restriction
that it shall not extend to the Governors members
of the Legislatures, Judges other officers neces
sary for the proper administration of the State
government; for as the Confederate government is
creature of the States it is absurd to suppose that
the intention was to make grant of power which
would enable the creature to destroy its creator
Hnd cause the existence of the States to be de-
Tendent on. the pleasure of Congress.
Apart from this, the act of Congress in general
terms exempts members of Congress, and of the
several State Legislatures and such other Confeder-
ate and State officers as the President or the Gov
errors of the respective States may certify to be
ecessary for the proper administration of the Con-
Tolerate and State governments as the case may be-
The province of deciding what officers are me-
cessary for the proper administration of the State
governments, belongs to the Legislature. That
body has deemed it Necessary to provide for the ap
pointment and exemption of county commissioners,
(set OF 1864 and in compliance Herewith the Gov
ernor has certified in pursuance of the act of Con-
gress, that this oficeris necessary
Will it be said the States must procure their
Governors, members of the Legislatures, Judges
and other necessary officers from among the citizens
who are over the age of CONSUMPTION, or at all
events those who are not already in service and
cannot take man out of the army TO fill any of
these Offices? On what ground is this assumption
baSedH There is no such provision in the Consti-
tuition or in the act of Congress- or in the act of
the Legislature, and there is nothing from which
itcan be implied on the contrary the implication
is directly against it. and the courts cannot pre-
sumo that it was the intention thus to narro,o the
field of selection in regard TO State officers. Moth
ing short of plain and direct words could be al
lowed 10 have the effect The practice in such
cases, and the legislation Of Congress, whereby it
is provided that military officer may resign, when
elected or appointed to civil Office in State, con-
firm this conclusion and leave no room to Question
the position that private although in the ranks,
whenever he is elected or appointed and is qualified
and indicted into an Office under the State and the
Governor certfes, in pursuance to the act of Con.
gresS becomes by force ard effect thereof exempted
The second ground taken in the return is also
untenable The court or Judge in proceeding of
this nature is not at liberty to go behind the record
Of the qualification and appointment of party
fhe validity of his appointment, on the ground
that Russell is under the age of q Years, cannot
be impeached in this collateral way. 1t can only
be done by a quo a0qrranto or other proceeding in
which the matter can be put directly at issue, and
. the ot1ee be adjudged forfeited or vacated
, The writ Of hdbeGs corpus is rsed in cases like
me present as civil remedy for the purpose O
having the liability of the petitioner to conscrip
H0h S1luqleated For the reasons given by me il