Ex parte Cain , 39 Ala. 440 ( 1864 )

STONE, J.

“ Every minister of religion, authorized to 'preach according to the rules of his church, and who, at the passage of this act, should be regularly employed in the discharge of his ministerial duties,” is exempted from ■military service in the armies of the Confederate States. Act of congress approved February 17th, 1864, section 10, subd. 3. The proof in this case is clear, full, and convincing, that on the 17th of February, 1864, for many years preceding, and ever afterwards, the petitioner was a minister of religion, being regularly ordained, in the Primitive Baptist church, and was regularly employed in the discharge of his ministerial duties. Neither this court, nor any other authority, judicial or executive, in this government, is a hierarchy, clothed with the power of determining the orthodoxy of any religious sect or denomination. It does not vary the question, in the present case, that Mr. Cain belonged to a sect of religionists, who perform ministerial labor gratuitously; and that therefore he resorted to some secular employment, as a means of subsisting himself and his family. If regularly employed as a minister, the fact that, in the interval between his appointments, he pursued some other vocation, which did not, according to the rules of his church, disqualify him for the sacred functions of the ministry, cannot take his exemption from him. The language of the act of congress is, “regularly employed.” The word regularly means, according to rule — in uniform order — methodically. It is not the synonym of continuously. Mr. Cain was employed in the discharge of his ministerial duties regularly — according to rule — and was, therefore, exempt from military service, under both the letter and the spirit of the act of congress.

[2.] The State courts have jurisdiction of the question presented in this case. Mr. Cain, as we have shown above, “ stands absolutely and unconditionally exempt from military service, because he belongs to [a] sect or class which the act of congress declares operates an exemption.” The enrolling officer has erroneously applied Ms authority to a person not within its scope.-Ex parte Hill, 38 Ala. 429, 458.

The counsel engaged in this cause have agreed to a state of facts, and have consented that a final judgment may be rendered, without awaiting a return to the writ of habeas corpus. The petitioner, under the proof, is entitled to his discharge; and the writ of habeas corpus is ordered to issue, unless the counsel engaged are content to apply to the judge below for the relief they seek, as herein indicated.