The Portland daily press., 1865-03-16
OPINION,
attorney Generals C1tce,
February 9, 1855.

March, 1853 comm 1nly caueo the nrolInent Act
Ist That the words "pericd Of service since the
commence ment of the rebel ion, used in the l2,h
section of the Act. do not quite tbs President in
ming The quOtss TO The sever States ta in
to consideration the whole term of enlistment of the
v.Guntesr ana militia man; ard ,t1
I'd That that part Of the Act of the Sd of Mareh,
1898 which Ea es the period Of service an elemert
ia the calculation necessary o determine the NUM-
per Of men due rom STATE ds.Ss q oo the At S
amendstorg of the Enrolmert Act approved z4'n
Feb uary, 1864. .s.-...,-.r,,.. .s...a9
Item be mo conv niert to consider these qles-
tions Ia tue reverse order nasmuoh as If it sh III De
found that the repeal has been mad, as contendsd
TOR the first point made by the Governor need not
90 30 srs@t Objects ofthe Enrolment Act ar
lst 10 declare who shall constitute the national
~ I'd To organize plan by which the national
forces can be made available. lt.s.
Subordinate 10 the purpose of raising and organ
izng the ma on al forces the plan adopted BY Con-
gress shows desire that the draft Vi on the nous
trial p9pula ion of the several States and the COM
munities thereof, should be equaized as nearly as
By the 4th section of the Act of the Sd OF March.
1854 the Tinted States is divided into distrcts Of
which the District Columbia shall consul one,
as the President shall direct and each Cos gresional
District the respective States fixed BY aiaw OF
the st &c next preceding the euro ment, shall N
stute QUE The sctionprovides that there's hall
be Beard o. Enrolment IN each District. BY the
9th ctiop, it is provided that if tbs Board of En-
rolment fhal deem.it necessary, dis ret may be
divided into two and with the assent of the Secreta
ry OLIVER INTO any grea ef mum Der ofSuD divisions
By the ~ section. it Il made the duty OF the
President in assigning to the Distdcts tie namter
ofman be furnished here rom, 10 + ke into c5n-
slider The number of volunite ana militia fur
shed by and ir0u tne several states in whch said
DstIicis situated and the pc iod OF their service
since the commencement OF the resent rebellion =
and sha 30 Ike sad assgnm mt as to equalze the
numbers among the Dis riots Of he several states.
Considering and allowing for the numbers already
It's evident, from the face OF tbi Act that the
sew IA, States and Districts had furnished number
otvountees and mill ia, ana for periods of service.
The iir duty Of the Presid mt was to have the
tiopa 70 eGrc IL his next DUTY vas to atcsT
tain what number of volunteers and militia had be
furnished RON the several st and tie pefiode of
Their eervc since the commencement OF he present.
bellion; and tn IN from what Di.tFics in The
eral Sta IS they came. that he might aaiize the
numbers among the Districts of the al States
considering and allowing for the numbers already
fl nisheu af nd and the time of ,heir service.
Under tn Act OF the third OF March, 1863 it is plain
thai be had no right power to cut up District
toto counties, township precincts, or wards l.
der equ aize the aft therein The auth rity CIV
en- in thu h section to sub-divid District for
the pur f facilitating expedtpg tae enroll
| meut, ara VITA no re g ence 10 equalization 1t
might AMI doubtless i'd hapl in many DIS riots,
that one well aefned portion ota Distric as q O. un-
| ty township, or ward, had furnished greatly more
than the number dina therefeom, whilst otneF paris
of the District, equally well d. fued, hal fur
| nished few or none thereby making q draft upon
tbs Di strict necessaFy al yet, nv der the Act,
draft otherwise than eQusl over the whoe DIstrict-
This was unjust and Oppressive. n order to cor
/
BY tie I'd sscton ofthe Ct of 24f February, 1854,
| and which is in amendment of the Act of Sd Mach,
1863 declared that the quota of Inward ofa tity,
town, township, precinct, or electi district, of
county, where tine cou ty is not divide iatp ards
towns, tcwn hips, precincts, or election dist let's
| shall be. as nearly possible, in proportion
| to the number of men resident therein liable 10
mi itay service tax ng into acsornt. far ae prsc.
tieabls the number which has been previously FUR
It is earnestly INSIST d, and most iugenieusly ar
gued. this I'd section otthe dcd Act repeats
f,offh I'M l,h nft ha Ant
March, 1863 makes it the duty 0, the Fresdentto
take into consideration be period OF service o. The
volunteers ana mi itia from The several States The
| a gument avor of the repeal rests wholly upon
the words of The aiendatory Act the NUMBER
which has been previously furnished thsrsfrom." 1T
| 8rithmetca count cannot % understand it. 19A
Ihs Act of the Sd March, 1862 had prescribed
mode by which the NUMBER of men due Tram the
several States sbould DO ascertained ar that ode
required. NO, simple count but a oonsiieration of
he period of service OF mea previously furnished
the amepdatory Act unde' standing thai the mode
of count prescribed ia ths original Act would be
mere are many evidences upon the face of the
amendatory ACT which show that it was lot the in.
tenton ofCongress 20 change tina mode ofoount pre-
scribed 10 the original Act
The amended Act does net undertake to say how
he quota OF State District is to be
In ascartaing what nomber is due from State or
Ditrict,the Pr sident must pursue the mode pre-
scribod in The 18th ssctol OF the original Ac--he
must take into csn iceraion the period OF service
and vel, undsr tho construction insisted upon WHOM
becomes to equaize the dTat as authorized do by
tho amended Act. in th= Districts, he must be con-
trolled by simple numbers L cannot BE- that Con :
e ess intel ded enc mo ofc unit for the states and
d strcts, and adifere At and wholly ihconsis one
for The sub. divisions Of Districts IGexr cable coz
fu ion would result. Mlb--n1@ l1z2ta
From the ian suage us d in various pa Is of the
amend ito act II is esid mt that Congress did not
intend to disturb the mode OF coun Prescribed in the
original act For instance, in the 9Th section of the
ameadat9rY act, it is said that the town, war or
twneip shall be credit by his serUices ana in The
18th section, 1.-THE period which he shah have been
enlisted ald the period Tor which be shall hsys
been drafted - all going TO chow that time of vice
| was hela TO be an element in The count i497f
| Nor do 1 think that The argument In favor of
the rep a. is aided BY ths Ia guage the LIST section
OF the CT. Titled can act further to reg2ate and
provide for he cllng OUT the ma ionai forees"
proved 4th July 1854. The act says, that 'any such
volunteer. or IN cgse0f draft, h rein provided,
any substitute shall be credited to thetown," Sc
Congress meant that the credit should be aiven ac-
eerdngt the mode OF count prescribed in the oct of
The whole purpose ofthe I'd section of the amend
atory act was to enable tbs President to equaze the
drat in the several dictric sutey not TO have enc
mode of count in asc raining the quotas of the
eral tates and Districts and another mods equal
iziag hedstricts Besides it is hardly to be eonsd
| er that Congress wou d. thus Incidentally strike
| from 90 important statute a fsatuleso prominent
am. there ore of the opinion that the mode ofas
/ pertaining andassgning to States aud s,rcts their
respective gu tas, as escr bed in the 18th section
4 or the act of the 3D. July, 1868, is not repealed
| and that the same mode must be pursued ia equa-
zing the draft among the sub divisions OF each dis
| = { e. + d g
| Next comes The que ton, what is the moFe of
| 81 Marco. 1853? .s4 49, bltts 81 Il
1t is vey plain that Congress regarded that a
cousde OF thu eriod OF service would change
| the rule from merely numerical one. come credit
was TO bsgsen for the period of service well as
service, and st tes aud districts, and fractions OF
districts had furnished for the periods of
vlca. Now how is the CIR dit to be given mta az
Before proceediag TO answer the question, it may
be pro err to state, that is insitsq that the words
period of time and Ttime OF strVice," as used in
the 10 sec ion of The act of March 8. 1853, msan
something different from teanaof serVsce 1t seems
to me that the phrases mean oee aad tie thug
Whn the word term Is used in reference to time, il
is according to the exicbgr aphers very rcarly tue
synony OF perios. The difference hetwixt hem If
any is too uncertsin aud snadowy to belle that
Congress meant by the use OF one tomething differ
ent from what is understood bgAthe other. Bat the
cords perf ID ana term, bo'h ocer in after u rss Of
the acts now under consideration In the 18th sec
tion the act OF 1864 the term of service is
ofahd the term of re- nils ment whilst in the 7fh
section o. the amended act il IS the period for which
he al have enlisted and the period for which he
shall have bsen drafted. Thus 1t will b. pssceived
that upon the very face of tnese acs Congress
theso words a. meaning the same thing. 1t happens
too in no act that aetaer word may be US ami vet
the same idea intended as ia the 8th section Of The
smnded act y be tn language is shalt be credit
Regarding tncn period f ,yIce, and Ateru, Of
service as meaning the same thing, any argurenE
Z pre- Icate1 upon ference must be dis egsrdsl.
And thus we are broug ht back TO the question how
is the credit to be given Must ,hs dit DO Tor tha
OF actudi StFVices CT ptrl00 Stme0tf
think that Cong ress INTENDED by the woros ..pe.
rod OF service to give credit for the time OF his
/ enlistment. When a enlists in the iervice of
the G cvsramentf one. two three years his GER
vices due the Government for thst period and
during b AZ period hs services are withdraw from
the industrial pursuits of lie The act speaks as
though there was csfta and fixed period for the
erycss of each man and yet If shy period time
is taken other than the ERIN enlistment, BY sore
system of averases or guesses rule must be hxf d.
To do would viola ethe certainty contenpla ed by
the act EHmmFE
AN therefore, of the opinion that the President
tnust, md tha act, give edit by the whole period
vi y Ferm Tor which the man enlisted.
od.d bet thi is the rule which should have been
az Dy congress. whether it does not operate
uu .n.s aah whether it is xacty jast or not, sra
qussIons Ioa Cannot row be coDs dsrel 1t is fla
IN, ll 10 "a M special of hardship will
thu aw, as wri.'ep, must e. parsued sud enforced.
Verg respec fully, your obedie5 serva l. : -