Ansley v. Starr , 34 Ga. 85 ( 1864 )

Lyon, J.

[1.] The plaintiff in error was not entitled to a discharge by reason of his, having put into the service a substitute under the conscript act of 16th April 1862, and the amendment thereto of September 27th, 1862. The exemption thereby acquired, was put an end to by the act of 5th January 1861; which law, this Court ajudicated in Darly and Fitzgerald vs. Harris, to be constitutional.

[2.] It is claimed that the plaintiff was entitled to his discharge, because he was already in the military service of the Confederate States as a volunteer in “ The Wheeler Dragoons,” a company formed for the defence of the city of Augusta, under an act of Congress entitled “ An act to provide for local defence and special seiwice,” approved August 21st, 1861; that the company was formed, in July 18.63, tendered to the War Department for the war, and was accepted upon the terms and conditions of its organization, and its officers commissioned accordingly. The company was not completely organized until September 1863. It was insisted that this enlistment into the military service, although for local defence and special service, by the applicant, and its acceptance by the President, formed a contract between the Government of the Confederate States of the one part, and this applicant, as well as every other member of the company, of the other part, that the members of the company should perform certain service, and that the Government, in consideration thereof, would not, during the term of enlistment, require of them any other military service. We do not see hotv this position can be maintained. The act certainly contains nothing to warrant such an idea, nor do the regulations'of the War Department, in force at the organization of .the company, authorize it. And to these only must we look to ascertain the intention of the parties, as well as their respective duties, rights, and privileges in the formation and reception of this company. They are operative as well on the Government as on the companies, etc., formed under them. General Orders No. 86, for 1863, applicable directly to companies, battalions, and regiments formed, or to be formed, under this act of August 21st, 1861, provides, in paragraph 1st, that “Companies, etc.,.composed of persons not within the age of conscription, (eighteen and forty,) will be accepted as volunteers throughout the Confederacy, under the act of August 21st, 1861, for local defence and special service; ” pargraph 10 — “ That these organizations will be preferred to, and exempt their members from any call of militia.” The 1st paragraph of this order was amended by General Orders No 98, of 20th July 1863, so as to read as follows; “ Companies, battalions, and regiments, composed of persons not within the age of conscription, eighteen and forty-five, will be accepted as volunteers throughout the Confederacy, under the act of August 21st, 1861, for local defence and special service.” “ Those persons belonging to such organizations, who are of conscript age, and neither exempted by law nor already in the service, will be discharged and reported to the bureau of conscription for enrolment.”

Ansley, the applicant, entered the service as a volunteer, in the company organized under this act, in September 1863. He was within the conscript age, but not subject to it at the time, by reason of having put in a substitute. He accepted the service, subject to these regulations, and when his exemption from conscription subsequently ceased, by reason of the passage of the act of Congress, “ To put an end to the exemption from military service of those who have heretofore furnished substitutes,” he fell within the regulation imposed by-paragraph 2, of General Orders 98, copied above, and was subject to conscription, and it was under this provision, which we think to have been in conformity to law, that ho was enrolled and properly held in custody for the performance of the military service prescribed by the conscript act.

[3.] -The applicant was not entitled to exemption by reason of his being a member of a firm that held a contract under the Confederate Government to manufacture pistols for it-The exemption act does not exempt the contractor, but the artisans, mechanics, and employees in the establishment of such persons as are engaged under contract with the Government in furnishing arms, etc: Provided, That the chief of the ordnance bureau, or some ordnance officer authorized by him for the purpose, shall approve of the number of operatives required in such establishment. Ansley, although a member of the firm, was employed as the book-keeper of the establishment, and his services in that capacity were necessary for the business, but' he failed to show the necessary approval of the chief of the ordnan.ee bureau to entitle himself to the exemption.

Judgment affirmed.