Opinion
(December Term, 1864.)
A man who was between the ages of 18 and 45 at the date of the passage of the act of 17 February, 1864, and arrives at the age of 45 before he is enrolled, is exempt from service for the war, but is liable to serve in the Senior Reserves.
HABEAS CORPUS, returnable before Shipp, J., and by him adjourned into the Supreme Court.
The facts are stated in the opinion of the Court.
Bynum for petitioner.
Bragg for Caldwell.
Previous to the act of 17 February, 1864, entitled "An act to organize forces to serve for the war," the petitioner was exempt by reason of his being a blacksmith. This exemption being repealed by that act, he became liable to military duty, but was not enrolled until 2 October. In the meanwhile — that is, between the passage of the act and the enrollment — he reached the age of 45 years. The enrollment and arrest are for duty in the army generally, and not as a (520) senior reserve.
We have had occasion at this term to declare in several cases (as in that of Upchurch v. Scott, next case) that the act of 17 February does not, of itself, operate as an enrollment, something more being required to put a citizen in military service. This being so, it follows that if the citizen, at the time he is called for, be not liable to perform the service required, he cannot be rightfully enrolled and made to serve.
The act of Congress divides the army into three parts: (1) The junior reserves, between the ages of 17 and 18; (2) The great body of the army, between 18 and 45, as organized under the acts of 1862; and (3) The senior reserves, between the ages of 45 and 50. Had the petitioner been incorporated into the army by enrollment, and ordered into camp, when between the ages of 18 and 45, he would have been rightfully put in the second division mentioned above, and would have been in for the full term prescribed by the act of 1862. But inasmuch as he was not called for until after he had passed the terminus (45) of that division, he ought to have been enrolled in the third.
He is entitled to relief, therefore, from his present custody, and will stand subject to duty in the corps of senior reserves.
He is discharged accordingly, the officer to pay costs.
NOTE. — Vide Haswell v. Mallett, ante, 432.