Ex parte Mitchell , 39 Ala. 442 ( 1864 )

A. J. WALKER, C. J.

Tbe petitioner asks for a discharge from detention in tbe service of tbe State as a mbitia-man. He says be is in tbe military service of tbe Confederate States, and therefore cannot belong to tbe State militia. Tbe State, on tbe other band, says be has been exempted, as an agriculturalist, by tbe Confederate States, and tbat be therefore is liable to render service in tbe militia. So tbe issue of tbe ease is an affirmation on one side of exemption bom tbe military service of tbe Confederate States, and on tbe other a denial of it; and tbe adjudication of this issue depends upon tbe question, whether such proceedings have been bad under tbe act of congress of 17th February, 1864, as to invest tbe petitioner with an immunity from service in tbe army of tbe Confederate States.

Tbe facts before us are, tbat tbe petitioner was enrolled as a conscript; tbat be applied for an exemption, under tbe 4th paragraph of tbe 10th section of tbe above-named act; tbat bis bond was approved by tbe enrolling officer of tbe county, on tbe 20th May, 1864, and sent up to tbe enrolling officer of tbe congressional district; tbat it was approved by tbe latter officer, and by him forwarded to tbe commandant of tbe State; and tbat on tbe 20th July, 1864, tbe commandant endorsed bis decision on tbe bond as follows : “Respectfully returned for revision; bond must be made as required by circulars from this office of 25th June and 8th July, 1864.” Tbe sureties on tbe bond were good and sufficient, and tbe petitioner has been continually furloughed since tbe 20th May, to await tbe decision of bis claim to exemption. Upon these facts, and these alone, we are to decide whether tbe exemption of tbe petitioner from tbe milita,ry service of tbe Confederate States has been consummated.

Tbe act of 17th February, 1864, only gives an exemption where tbe following conditions exist: 1st, tbat there were on tbe 1st January, 1864, and at tbe date of tbe act, fifteen able-bodied field bands, between tbe ages of sixteen and fifty, on tbe plantation; 2d, tbat there was no white male adult on tbe plantation, not bable to mihtary service; 3d, tbat tbe person claiming tbe exemption was, on tbe first day of January, 1864, either tbe owner and manager, or tbe overseer of tbe plantation. Whether these three conditions existed in this case, we are not informed. Tbe case, however, seems to have been treated below, as it has been treated by counsel in this court, upon tbe concession tbat tbey did exist; and it is perhaps inferrible from tbe fact tbat tbe bond was approved, and forwarded by tbe local enrolling officer, tbat tbe existence of those conditions was ascertained by him before be acted on tbe bond. I shall, therefore, proceed in tbe investigation of tbe case npon tbe supposition, tbat tbe status of tbe petitioner was such as to entitle him to apply for and obtain an exemption by complying with tbe further requisitions of tbe law.

Tbe law of 17th February, 1864, requires tbe applicant, as a condition precedent to tbe exemption, to execute a bond, payable to the Confederate States of America, “in such form, and with such security, and in such penalty, as tbe secretary of war may prescribe.” It also prescribes tbe condition of tbe bond, and requires tbe taking of a further obligation in reference to tbe sale of tbe marketable surplus of provisions and grain. On tbe 18th March, 1864, tbe secretary of war, acting through tbe bureau of conscription, prescribed tbe penalty of the bond, and directed tbat tbe bond should be secured by personal security, or a deposit of treasury-notes. On tbe 24th March, 1864, tbe war department of tbe government, in what is denominated “Circular No. 12,” prescribed tbe form of bond, which embraced tbe specified obbgation as to tbe sale of tbe marketable surplus of provisions and grain. We are not informed whether tbe bond executed by tbe petitioner was drawn in conformity with tbe prescribed form, or was in tbe prescribed penalty; and we have no means of ascertaining, except as we may infer from tbe action of tbe three different officers of different grades, through whose bands it passed. It is inferrible tbat tbe enrolling officers for tbe county and congressional district decided tbat tbe bond was correct in every particular, when tbey approved it. Their judgment of approval includes such a decision. No such inference can be drawn from tbe conduct of tbe commandant; for be withheld bis approval, and returned tbe bond for revision, with a direction tbat bond must be made conformable to certain orders from bis office. This action must be deemed tbe expression by tbat officer of a disapproval of the. bond.

Tbe orders of tbe war department contemplate tbat tbe enrolling officer should, with tbe advice of an advisory board, pass upon tbe application, and accept tbe bond; and that tbe application and bond should be transmitted to tbe commandant of tbe State for bis approval. General Orders, No. 26, III, IY; General Orders, No. 33, YIXI. §§ 3, 4, 5. It was certainly competent for tbe government, through tbe war department, to charge some particular officer with tbe duty of accepting tbe bond, and approving it, if found conformable to tbe law and tbe regulations; and, for greater security, it might direct, as it has done, that tbe appbcation and bond should pass under tbe supervision of two officers successively. It has been seen that tbe secretary of war is authorized by tbe law itself to prescribe tbe form, penalty, and security of tbe bond. Tbe secretary of war has prescribed tbe form, penalty, and security, and designated officers to determine tbe conformability of tbe bond to bis directions, and, deciding affirmatively upon those points, to accept and approve.

This acceptance and approval of tbe bond may be given actually, or facts may appear from which they will be presumed. If tbe applicant for an exemption should execute and deliver bis bond, in conformity to tbe law and orders governing tbe subject, and show to tbe proper officer that be was of tbe class of persons having a right to claim an exemption, tbe law would, after a reasonable time, in the absence of evidence that tbe bond has been acted on, presume tbe acceptance and approval.—United States v. Dandridge, 12 Wheaton, 64; Postmaster-General v. Norvell, Gilpin’s R. 106; Broome v. United States, 15 Howard, 143; United States v. Le Baron, 19 Howard, 73; Green v. Wardwell, 17 Ill. 278; Carmichael v. Governor, 3 Howard, 236; Bruce v. Maryland, 11 Gill & J. 382; State v. McAlpin, 4 Iredell’s Law, 140.

Tbe act of congress authorizes tbe bestowment of an exemption, and prescribes tbe consideration and condition .precedent. This arrangement under tbe law has tbe similitude of a contract between tbe agriculturalist seeking an exemption and tbe government. In determining tbe rights of tbe parties under tbe law, we must allow to it tbe incidents of a contract, so long as tbe law remains in force. Tbe government, by a law, gives tbe right of an exemption to a certain class of persons, upon tbeir compliance with a: certain condition. "When they have complied with that condition, they have a right to an exemption, subject to this qualification, that the government shall have a reasonable time to ascertain and determine whether the offer is in conformity to the law and the orders adopted in pursuance of it, and to accept the offered compliance. This I understand to be the law of contracts, where a, party has a right dependent upon the performance of a condition, which he cannot perform without the acceptance of the other party. Addison on Contracts, 1132. I therefore think that, while the government has a right to appoint officers to accept and approve the bond, the party has a right to have that acceptance and approval announced within a reasonable time; and that upon a failure in that particular, the right of exemption springs up, as it would have done with an acceptance and approval.

While the war department has a right, through its officers, to examine and accept the bond, and make the approval of the bond the evidence of its acceptance; the law does not make an approval indispensable to an exemption. The right to an exemption cannot be made to depend upon the approval of any officer. The law does not subject it to such a condition. It is not like the case of an official bond, which the law requires to be approved by some particular officer or court. In such a case as that, the qualification if ne office, and acceptance of the bond, are not complete •. util the approval is given.—McClure v. Colclough, 5 Ala. 65; Crawford v. Meredith, 6 Ga. 552; McBride v. Commonwealth, 2 Watts, 448; Carmichael v. Governor, 3 How. 236; United States v. Le Baron, supra. Here, the law does not make the right of exemption depend upon the approval of the bond by any officer. The right exists as soon as the government has had .a reasonable time to examine and accept it; and the secretary of waj; has no right to superadd the condition, that the bond should be approved. It may appoint its agents and officers, to ascertain whether the bond is in accordance with the law and orders of the department passed in pursuance of it, and prescribe that those officers shall approve the bond; but, if tbe applicant has done all required by tbe law, and given tbe proper bond, tbe officer of tbe government cannot, by withholding bis approval for an unreasonable time, or by disapproving tbe bond, deprive tbe appbcant of tbe exemption, to which tbe law gives him a right. I shall not undertake to decide what is a reasonable time. It is not necessary for me to do so in this case. I will remark, however, that tbe third paragraph of tbe orders of March 1st, 1864, (General Orders, No. 26,) authorize tbe county enrolling officer, upon approving an application, to grant an exemption for a period not exceeding sixty days, upon tbe evident supposition, that sixty days was long enough for tbe examination and acceptance or approval of tbe bond. This seems to indicate that, in tbe view of tbe department itself, sixty days would be a reasonable time. Tbe officers in this State seem, from tbe record before us, to have adopted tbe plan of granting furloughs during tbe interval ' of tbe pendency of tbe application. This course certainly does not lessen tbe necessity for dihgence in passing finally upon tbe appbcations.

In this case, it does not appear that tbe petitioner bad executed tbe bond required. Nothing in favor of tbe bond is shown, except that tbe sureties were good and sufficient. It cannot be affirmed that be has done what is necessary to clothe him with tbe right of exemption. He, prima facie,, is a conscript in tbe service of tbe Confederate States. He is proved to have been enrolled as a conscript. Tbe onus was upon tbe State to show bis exemption from that service. This tbe State has faded to do, as far as we can discover from tbe record.

I decide, that tbe judge of probate erred in deciding, upon tbe evidence before him, that tbe petitioner was not in tbe service of tbe Confederate States, and was Hable to serve tbe State in tbe militia. Judge Stone concurs with me in my conclusion, though not in my argument.

Tbe judgment of tbe probate judge is reversed, and tbe petitioner discharged.