White v. Sellars , 34 Ga. 200 ( 1865 )

By the Court.

Jenkins, J.

delivering the opinion.

The defendant in error rests his case upon the judgment of this Court in the ease of Andrews and, Strong. Strong liad been enrolled, appeared at a camp of instruction, and was thereupon detailed to the management of his own plantation, until otherwise ordered. After the lapse of several months, he was ordered to report for duty at Atlanta, but having, in the interval, been elected and commissioned as a Justice of the Peace, he exhibited his commission, and claimed exemption. This was denied him, and he sued out a writ of habeas corpus to obtain his discharge. The majority of this Court thought he was entitled to exemption. Prom that opinion I dissented, and my views being unchanged, I hold that this defendant in error is not entitled to a discharge from the army by reason of his election to the office of constable. My brother Lyon, still adhering to the opinion that Strong was exempt, distinguishes between the cases, and agrees with me that Sellars is not. The distinction he makes is threefold: 1. Strong, although enrolled, had never been actually mustered into the service, which he regards as necessary to his status in the army. lie? therefore, was not in the army when elected to the office of Justice of the Peace. Sellars had not only been mustered in, but had been in actual service, and had never been discharged. 2. The office held by Strong is created by the constitution of Georgia, whilst that of Sellars is the creature of a statute. • 3. Another statute empowers Justices of the Peace to appoint constables in lieu of those regularly elected, in the temporary absence of the latter from their districts, which prevents any detriment to the public service.

My impression is, that the obligation of military service attaches upon enrollment; and that Strong’s detail being for no specified time, hut at the will of the Government, he could not use this indulgence to invest himself with a civil office, and thus throw off his military obligations. It is conceded that at every moment after his enrollment he was subject to be ordered into camp ; and lie was, therefore, at no time exempt.

Though reasoning differently, we arrive at the same conclusion — reversing the judgment of the Court below, and holding the defendant in error subject to the military service of the Ooflfoderatc States.