Kesler v. Brawley

• Decision Date: 31 October 1864
• Citation: 2 Win. 4,60 N.C. 402
• Court: North Carolina Supreme Court
• Parties: JACOB KESLER, v. JOHN M. BRAWLEY.

2 Win. 4

60 N.C. 402

JACOB KESLER,

v.JOHN M. BRAWLEY.

Supreme Court of North Carolina.

October Term, 1864.

A conscript between 45 and 50 years old, enrolled under the act of Congress of 17th February, 1864, is entitled to his discharge when he is 50 years old.

This was a writ of certiorari from this Court sued out by Capt. Brawley in order to review the decision of Chief Justice Pearson on a writ of habeas corpus at the suit of Tobias Kesler against John M. Brawley, a captain in the army of the Confederate States, complaining of being illegally restrained of his liberty by Capt. Brawley. It appeared on the trial before the Chief Justice, that the petitioner had been enrolled under the act of Congress of the 17th of February, 1864, as one of the senior reserves, he being then between the ages of 45 and 50, and that he became 50 years old on the ____ of October, 1864, and he was discharged.

Blackmer for the petitioner .

W inston, Sr., for Brawley .

PEARSON, C. J.

“From and after the passage of this act, all white men, residents of the Confederate States, between the ages of seventeen and fifty, shall be in the military service of the Confederate States for the war.”--Act of Congress, 17th Feb., 1864, sec. 1.

One of two constructions must be adopted: 1st. It applies to individuals who are, at the date of the passage of the act, between the ages of 17 and 50, as descriptio personarum, the same, in legal effect, as if the persons answering the description were named, and puts them in the military service “for (that is, during) the war.” This meaning can be given by adding the words “who are now” so as make it read “all white men” residents of the Confederate States who are now between the ages of 17 and 50 shall be in the service of the Confederate States for (that is, during) the war.” “This act shall take effect from and after its passage.” According to this construction, all white men, who are, at the date of the passage of the act, under the age of fifty, would be liable to military service during the war, notwithstanding they afterwards arrive at that age, because they are embraced by the description, and all white men who are, at the date of the passage of the act, under the age of 17, would not be liable to military service, because they do not answer the description. So that if this construction be adopted, and judgment is therefore rendered against the petitioner, the Courts and Judges will be bound, as a matter of course, upon the authority of this decision, to discharge every one who has been, or may be, put in the military service, who was not, at the passage of the act, 17 years of age.

There are two fatal objections to this construction: 1st, in order to express the meaning it is necessary to add words which are not found in the act, and the addition of which varies the sense materially. This is not authorized by any rule of construction 2d. According to the whole scope and tenor of the act, one of its main objects is to bring into the military service the young men who are continuously arriving at the age of 17; and the purpose is not only to embrace those who are 17 at the passage of the act, but all who shall thereafter arrive at that age: which purpose would be defeated by this construction, and it can only be contended for on the ground of an oversight or casus omissus in framing the act, which, in so important a matter, the Court is not at liberty to assume.

The second construction is that the section applies to a class composed of all white men between the ages of 17 and 50, without regard to the time when they may be between those ages, and puts them into military service as a class for (that is, during) the war. This meaning can be given, simply by changing the position of the words “for the war,” so as to make the section read, “for (that is, during) the war, all white men, residents of the Confederate States, between the ages of 17 and 50, shall be in the military service of the Confederate States.” “This act shall take effect from and after its passage.” The Court is authorized, by a well-settled rule of construction, to change the position of words. See Dwarris on Statutes.

Indeed, this change in the position of words in this instance, is only for the purpose of making the sense clearer. For if persons are conseripted as a class, it follows, of course, that they cease to be liable when they pass out of the class, and become liable when they enter the class. When no time is fixed at which they are to be between the ages designated, the conscription is necessarily as a class; the distinction being, when a time is fixed the conscription is as individuals, descriptio personarum. When no time is fixed, the conscription is as a class. Here the time is fixed; so the conscription is as a class, and that consequence follows without reference to the position of the words “for (that is, during) the war,” although it makes the sense clearer to put the words at the beginning of the section, instead of at the end. “For the war” is evidently used in the sense of “during the war,” and conceding that the conscription is by a class, if the words “for (that is, during) the war” had been placed at the beginning of the section, the fact that a “senior reserve” would not be liable after arriving at the age of fifty, is too plain for discussion; and it would be strange if the result can be different from the circumstance, that the words “for (that is, during) the war” happen to be at the end of the section. These words have no reference to the time of service; that is fixed by conseripting as a class, and the words are manifestly used to enact that the intended conscription of all between the ages of 17 and 50 should continue, or be in force, during the war.

According to this construction, all persons under the age of seventeen, for the time to come, on arriving at that age, enter into the class, and are liable to military service; and all persons under the age of fifty, from time to time, on arriving at that age, pass out of the class, and are no longer liable to military service: the rule working both ways, unless some provision be made to the contrary.

It may be objected to this construction, that it lets out of the military service all who arrive at the age of fifty. The reply is, there is nothing in the act tending to...