Ex Parte MITCHELL

Ex Parte MITCHELL. [PETITION POR HABEAS CORPUS.] 1. Right of esc&ttvptíon from militm-y service as bonded agriculturalist.— When a person makes application for exemption from military service as a bonded agriculturalist, under the 10th section of the act of congress approved February 17, 1864, and shows to the proper officer that he has a right to make such application, and complies with all the requisitions of the law on his part, as to the execution and delivery of his bond; the government is allowed a reasonable time, within which to ascertain and determine whether his offer is in conformity to the law, and to accept his offer; but the failure of the government to signify its acceptance within a reasonable time, cannot defeat or prejudice bis right of exemption; nor can the government make the approval of the bond by any officer necessary to perfect his right. 2. Burden of proof, on question of Mobility to miMtia service. — On habeas corpus, by a person who is held in custody as a militia-man, and who claims exemption on the ground that he is in the military service of the Confederate States; the petitioner having shown that he has been enrolled as a conscript, the onus is on the State to show that he has been discharged from that service; and proof of the fact that he has made application for exemption as a' bonded agriculturalist is not sufficient, unless it is also shown that his right of exemption on that ground has been consummated by a full compliance on his part with all the requisitions of the law. The petitioner in this case made application, on tbe 18th August, 1864, to the probate judge of Montgomery county, for the writ of habeas corpus, to procure his release and discharge from the custody of Capt. Gray Thigpen, who held and detained him as belonging to a company of second-class militia, who had been ordered out by the governor. “On the trial of the cause,” as the bill of,exceptions states, “the petitioner proved that, on the 20th May, 1864, he was enrolled as a conscript by the enrolling officer of Montgomery county, under the act of congress approved February 17, 1864; that he subsequently applied for an exemption as an agriculturalist, under the 4th paragraph of the 10th section of that act; and that, on the 5th August, 1864, he was furloughed by said enrolling officer, for sixty days, to await decision on said application. The State then introduced as a witness the enrolling officer of said congressional district, who testified, that the practice was for the enrolled men to make application for exemption, under said paragraph, to the enrolling officer of the county, by whom it is sent, with his action endorsed, to the enrolling officer of the congressional district, by whom it is examined, his action thereon endorsed, and sent, with bond, &c., if approved by him, to the office of the commandant of conscripts for the State, Col. H. 0. Lockhart, for approval; that the application, when acted on by said commandant for the State, is returned by him, with his endorsement thereon, to the enrolling officer of the congressional district, and, if approved, he issues the final exemption; that the application of the petitioner in this case was approved by the enrolling officer of the county, on the 20th May, 1864, and sent up to him (witness), by whom it was considered as complete under tbe orders and regulations tben existing, and was approved bj bim, and forwarded to tbe office of tbe said commandant of conscripts for action; and that it bad not been sent back by bim. Tbe witness testified, also, that there were orders issued since tbe 20th May, which tbe bond may not have been in accordance with. Tbe petitioner tben proved, that tbe commandant of conscripts bad directed bis appbcation and bond, which bad been sent up to tbe office of said commandant, to be returned to tbe enrobing officer of said congressional district, for revision, with this endorsement thereon, made by order of said commandant: ‘Montgomery, July 20th,' 1864, Respectfully returned for revision; bond must be made as required by circulars from this office, of 20th June, and 8th July, 1864’; and that said appbcation and bond bad not, up to that time, been returned. This being all tbe evidence in tbe case, tbe probate judge decided that tbe petitioner was bable to mibtia service, and remanded bim to tbe custody of said Thigpen; to which ruling and decision tbe petitioner excepted.” Tbe petitioner renewed bis appbcation to this court on tbe 5th September, 1864, and appended to bis petition, as an exhibit, a copy of tbe proceedings bad before the probate judge, as shown by tbe bill of exceptions. By an agreement of record, entered into between tbe counsel of tbe respective parties in this court, it was admitted, that tbe bib of exceptions should show “that tbe petitioner was •furloughed, on tbe 20th May, to await tbe decision of bis claim to exemption; that bis furlough was renewed, on that ground, from time to time, until tbe present; and that tbe sureties on bis bond for exemption were good and sufficient.” Geo. Goldtbcwaite, for tbe petitioner. P. T. Saybe, for tbe State. [MAJORITY — A. J. WALKER, C. J.] 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.