Ex parte Lockhart , 39 Ala. 450 ( 1864 )

STONE, J.

Edmund Mitchell, tbe petitioner for habeas corpus in tbe court below, after be was enrolled as a conscript, placed in a camp of instruction, and assigned to a company and to duty, became sole contractor for carrying tbe Confederate mail on a route of more than ten miles in length. Tbe act of congress, approved April 14, 1863, declares, “that tbe contractors for carrying tbe mails of tbe Confederate States, shall be exempt from tbe performance of military duty in tbe armies of tbe Confederate States, from and after tbe passage of this act, during tbe time they are such contractors.” — Acts of 1st congress, 3d ses., p. 107. It is contended, tbat Mr. Mitchell cannot claim the benefit of this exemption, because he became a contractor after the enactment of the statute, and after his enrollment as a conscript, and assignment to duty. We do not think this objection sound. In the very section of the act of congress which grants the exemption to mail-contractors, copied above, is found the following proviso: “That no person to whom a contract for carrying the mails may be transferred, with the consent of the post-office department, after the passage of this act, shall be exempt from military service on that account.” Under a well-known rule of construction, the plain inference from this proviso is, that persons who became mail-contractors after the enactment of the statutory exemption, are embraced in its provisions, unless their contract for carrying the mails was transferred to them after the passage of the act. Inclusio unius est exclusio alterius. There is nothing in the record before us, which tends to show that Mr. Mitchell acquired his contract by transfer from another. If such had been the fact, doubtless so important a statement would not have been omitted. But we are not'authorized to presume the existence of any fact, not shown by the record, as a ground of error in the rulings of the primary court. It is the duty of a party who complains of error, to show its existence affirmatively. In any view we can take of this case, we find no error in the rulings of the probate judge.

It may not be out of place to remark, that the act of April 14,1863, from which we have quoted above, was, in express terms, saved from the operation of the repealing clause found in the 10th section of the act “to organize forces to serve during the war”, approved February 17, 1864, by the sixth subdivision of that section. — See acts of first congress, 4th session, p. 215.

Certiorari refused.