
    THE STATE, ex rel. ELLERBE, in re DANIEL.
    [certiorari to revise proceedings under habeas corpus.]
    1. Construction of acts approved October 7th, and December 8th, 1864, as to employment of county reserves, or first-class militia. — Under the proviso to the 7th section of the act approved October 7, 1864, entitled “ An act to aid in arresting deserters and stragglers from the army,” and the act amendatory thereof, approved December 8th, 1864, -which declares, that nothing in the former act “ shall warrant th e employment of the county reserves, or first-class militia, osa, regular and permanent guard for Federal prisoners, at any of the Confederate prisons in the State,” — the employment of the county reserves, by order of the governor, in guarding Federal prisoners, for a continuous term of three months, is not a violation of the law, such as will justify the interposition of the courts to discharge them on habeas corpus.
    
    2. Construction of 8th section of said act of October 7th, prohibiting “ appointment of Confederate States army officers to command county reserves.’ The clause in the 6th section of said act of October 7th, 1864, which provides that “ nothing in this act shall be so construed as to authorize the appointment of Confederate States army officers to the command of such reserve force,” simply requires that the county reserves, when tendered to the president for service in the capacities authorized by that act, should be commanded by officers who were elected or appointed in the manner prescribed by the acts of the legislature, and does not inhibit the placing of their respective company organizations under the control of the necessary officers of the Confederate States army; nor can a member of such company obtain, under habeas cotpus, a discharge from the legal custody of his captain, on the ground that the company was illegally placed under the command of a superior officer.
    In tbe matter of the petition of Nathan Daniel for the writ of habeas corpus, by which he sought to procure his discharge from the custody of Capt. A. M. Ellerbe, who held him as a member of his company of county reserves, doing provost-guard duty at Cahaba. The petition was sworn to on the 30th December, 1864; and the hearing was had, on the 2d January, 1865, before the probate judge of Dallas county, who held the petitioner entitled to his discharge. Application was thereupon made to this court, in the name of the State, on the relation of Capt. Ellerbe, for the writ of certiorari, or such, other remedial process as might be necessary, to revise the decision of the probate judge. By agreement of record between the counsel for the State and the petitioner, the issue of a certiorari or other writ was dispensed with ; and it was further agreed that the court should, on an inspection of a certified copy of the proceedings had before the probate judge, which was admitted to be correct, render such judgment as the probate judge ought to have rendered.
    Geo. W. Gayle, for the State.
   A. J. WALKER, C. J.

The seventh section of the act of 7th October, 1864, entitled “An act to aid in arresting deserters and stragglers from the army,” is in the words following: “The first-class militia shall not be called out, or used, in any case, except to repel invasion, enforce the conscription laws, suppress insurrections, arrest deserters or stragglers, enforce the laws in their respective counties, and do patrol duty as prescribed by this act, and other services as herein provided for: Provided, that the governor may cause any portion of the militia of the first class, or all of them, in their respective counties, to he used to guard, Iceep, and transfer prisoners, captured either by the forces or authorities of this State, or of the Confederate States, but shall not order them out of their counties.” An act to amend the above-named law, adopted December 8th, 1864, provides, that nothing in the law of 7th October, 1864, “shall warrant the employment of the county reserves, or first-class militia, as a regular and permanent guard for Federal prisoners, at any of the Confederate prisons in the State.” The last clause in the sixth section of the act of 7th October, 1864, is in the words following: “Nothing in this act shall be so construed as to authorize the appointment of Confederate States army officers to the command of such reserve force.”

The discharge of the petitioner in this case, who belongs to the county reserves, is placed upon two grounds. The first is, that the petitioner is employed as a “regular and permanent guard for Federal prisoners,” in contravention of the act of 8th December, 1864. The second is, that a Confederate States army officer bas been placed in command of bim, in contravention of tbe last clause of tbe sixth section of tbe act of 7tb October, 1864. These grounds we shall consider in tbe order of their mention.

From tbe 3d October, under tbe order of tbe governor of tbe State, each of tbe different companies of county reserves of Dallas county bad, up to tbe suing out of tbe writ of habeas corpus in this case, with tbe exception of two weeks, served in succession tours of duty of two weeks in guarding tbe prisoners of war at Cababa, and in their regular turns tbe companies were still serving in that capacity. Tbe petitioner bad been on duty for about four days, when be applied for tbe writ. Tbe argument in support of tbe judgment of tbe court below is, that tbe facts above stated, of themselves, prove an employment of tbe county reserves “as a regular and permanent guard for Federal prisoners” at a Confederate prison, in violation of tbe act of 8th December, 1864,

To render tbe employment illegal, it must be both regular and permanent. Without scrutinizing tbe import of tbe word regular, we pass on to tbe inquiry, whether tbe facts stated prove tbe employment to have been permanent. We have here an instance, in which an indeterminate expression bas been used by tbe legislature. It is difficult, if not impossible, to define tbe precise meaning of tbe word, as it occurs in tbe law. It certainly imports a lasting, fixed employment, — one not temporary or transitory. But, when does such an employment cease to be temporary, and become permanent? Is an employment for three months necessarily a permanent employment ? We think not. It is conceivable that, in some exigency of public affairs, tbe county reserves might be employed during tbe exigency, even though it lasted longer than three months, and yet not be properly said to be permanently employed. Tbe expression is relative in its character. Tbe same period would stamp one subject with tbe character of permanency, while in reference to other subjects it would impart what would be denominated a transitory or fleeting character. Human life is said to be fleeting ; while tbe country in which one has bis domicile is called bis permanent home. Tbe State government bas not imposed npon its reserves tbe entire duty of guarding prisoners: but for intervals, for periods wben it is demanded by tbe necessities of tbe times, tbe executive is authorized to assign them to that duty. Much, of course, must be left to tbe executive judgment and discretion, in tbe ascertainment of tbe length of service which shall be required. We shall not attempt to define what duration of service will render tbe employment permanent. It is sufficient for this case to bold, as we do, that a service for three months is not necessarily a permanent employment. We can not presume, in tbe absence of a manifest intention to do so, that tbe governor intends to act illegally, and impose tbe guarding of prisoners as a permanent duty on tbe reserves.

Nothing in tbe act is to be construed so as to authorize tbe appointment of Confederate States officers to tbe command of such reserve force. It must be observed, that this is not an inhibition of tbe command of tbe reserves by Confederate army officers. We presume it was not intended that tbe reserves, wben called out to repel invasions, should be free from tbe operation of tbe orders issued by tbe general, or other superior officer, to whom tbe duty of repelling such invasion might be assigned, if tbe governor should, for tbe sake of co-operation and concert of action and greater efficiency, place them under tbe guidance of such orders. It is a mere rule for tbe construction of tbe act. It excludes such a construction of any of its provisions, as would authorize tbe appointment of Confederate officers to command them. Tbe second and fifth sections authorize tbe governor to make appointments. Tbe clause under consideration may be understood, if it should be at all material, as prohibiting him from tbe appointment of Confederate officers under either of those sections.

But we apprehend that tbe legislature, in tbe adoption of that clause, bad in view tbe first section, which empowers tbe governor to tender the reserves to tbe president, to act as a provost-guard; and also to tbe part of tbe seventh section which empowers tbe governor to cause them to be used to guard, keep, and transfer prisoners, within their counties. Wben they are tendered for service as a provost-guard, or caused to guard, keep, or transfer prisoners, tbe sections under which those things are done are not to be construed to authorize the appointment of Confederate States officers to the command; by which we understand, that they are to be commanded by officers elected or appointed in the manner designated in the acts of the legislature, and that they are to go into the services designated with the officers provided for in the law. But we do not understand it to mean, that when they enter upon the duty of serving the Confederate States, in any of the modes mentioned in the law, the organizations to which they belong must be free from the control of that government, exercised through its proper officers. The legislature could not have intended to make it the duty of the reserves to guard prisoners for the Confederate government, only upon the condition that it would yield the entire control of the prison to such reserves.

The complaint of the petitioner is not, that he is not under the command of an officer appointed or elected according to the State statute; but that he, together with the whole company organization, is under the command of the commandant of the post, who, we infer, has charge of the prison, and to whom the companies are ordered to report. We can not suppose that the legislature contemplated a surrender by the Confederate government of the control of the prison to the reserves. Unless the control is thus surrendered, the reserves guarding the prison must, of necessity, be under the control of the Confederate authorities, so far as the government and direction of their duties is concerned. It is not alleged that the petitioner is detained by a Confederate officer. He is detained by his immediate captain, an officer of the State. The Confederate officer is neither alleged nor proved to have exercised any other command or authority over him or his company, than such as is necessary to preserve the authority of the Confederate government over the prison. Under these circumstances, we do not think that the petitioner is entitled to a discharge upon the second ground.

The petitioner does not deny that he is under the immediate command of an officer of the State reserves, authorized and legally qualified to command bim. We have decided that the service in which he is employed is one allowed by the statute. He is detained by the State officer, and not by a Confederate officer. The complaint is, that the organization to which he belongs, is subjected to the command of a Confederate officer, in violation of the statute. If we concede that a Confederate officer improperly gives orders to the company, it does not therefore follow that the petitioner is entitled to a discharge under a writ of habeas corpus. Indeed, it is plain that he is not entitled to such discharge. His detention is legal and rightful, and by an officer having a right to detain him. The courts have no right to discharge a man whose detention is thus lawful and rightful. Their province is to relieve from unlawful imprisonment. It was, therefore, improper for the probate judge to take the petitioner out of the custody of Captain Ellerbe, who is alleged to detain him, and admits it in his return. If there was any thing illegal in requiring the company of Capt. Ellerbe to report to Col. Jones, a Confederate officer, and submit to his command, there is, no doubt, a remedy; but it is not found in an application to the courts for a discharge under the writ of habeas corpus. A soldier can not be entitled to a discharge from a legal service, because an officer unlawfully takes command of him, or because he is required to report to an officer having no authority over him.

Judgment and proceedings of the probate court reversed, annulled, and quashed.  