
    
      Ex parte James Graham.
    
      Act of the Legislature — Construction.
    An Act of the Confederate Congress allowed exemptions from military service to be granted for one year to overseers, on payment by the employer of five hundred dollars ‘. — Held, that an exemption granted under the Act was not revoked by a repeal of the Act within the year.
    An Act of the Legislature will not be construed to have a retroactive operation, unless the intention that it shall so operate be clear beyond all reasonable doubt.
    The repeal of an Act will not defeat rights which have vested under it.
    BEFORE MUNRO, J., AT CHAMBERS, ANDERSON, MAY, 1864.
    The case will be sufficiently understood from the decision of his Honor, the presiding Judge, which is as follows:
    Munro, J. The petitioner applies for a habeas corpus, based upon the following facts set forth in an affidavit accompanying his petition, "that he is thirty-seven years of age, and therefore prima facie liable to conscription, but that he has been duly and regularly exempted from such conscription, and from all military service, under the provisions of an Act of- Congress, approved May the 1st, 1863, by contract made with the Conscript Bureau, from the 21st day of December, 1863, to the 21st December, 1864; that he is the overseer of Mrs. Eliza E. North, near Pendleton, who owns fifty-four slaves, and works twenty or more hands; that the said Mrs. North complied with all the provisions of said Act of Congress, including the payment of five hundred dollars into the public treasury in consideration of the exemption of deponent from conscription,” &c. In the answer of the respondent, Captain McCreary, while he admits the foregoing facts to be true, he however insists that, by the provisions of the Act of Congress, approved the 17th of February, 1864, the exemption granted to the relator, as well as all other such exemptions, were revoked, and that relator is now liable to military service; and, being so liable, respondent claims to hold him in custody.
    The second section of the Act of May 1st, 1863, is in these words: “ For the police and management of slaves, there shall be exempted one person on each farm or plantation the sole property of a minor, a person of unsound mind, a feme sole, or a person absent from home, in the military, or naval service of the Confederacy, on which there are twenty or more slaves.” The conclusion of the section is as follows: “ that for every person exempted as aforesaid, and during the period of exemption, there shall be paid annually into the public treasury by the owner of such slaves the sum of five hundred dollars.”
    The tenth section of the Act of the 17th February, 1864, is as follows: “ That all laws granting exemptions from military service be and the same are hereby repealed, except the following.” The fourth paragraph of this section prescribes the terms to be complied with, by those who claim exemption under its provisions.
    The object of the government in arresting the relator, if I understand it correctly, is to compel him to comply with the terms substituted by the foregoing section of the Act, in lieu of the terms prescribed by the Act of the 1st of May. The question that arises here is, Was a contract created out of the foregoing transaction between Mrs. North and the government ? I suppose it will hardly be doubted that, if Mrs. North had not paid the five hundred dollars in advance, but at the end of the year had failed to do so, a cause of action founded upon the contract would have accrued to the government. Assuming it to be a contract, then, the next question is, Has it been at all affected, and if so, to what extent, by the Act of the 17th of February ? That the Act of the 1st of May was repealed by the Act of the 17th of February, hardly admits of a doubt; but the question is, What effect had the repealing Act upon contracts entered into under the original statute ?
    Sedgwick, in his work on Con. Law, at page 182, in speaking of the effect of repealing statutes upon civil rights, remarks: “But the effect of a retrospective construction of repealing statutes is entirely to derange the plans and defeat the arrangements of the parties who have proceeded on the faith of the antecedent legislation. Efforts have been made to resist these results, and certain exceptions have been made to this retroactive application. The first is, that where a right in the,nature of a contract has vested under the original statute, then the repeal does not disturb itand cites Fleicher vs. Pede, 6 Cranch, 89, and several other cases.
    The doctrine as to the construction of retrospective legislation will also be found very fully discussed by Sedgwick from pages 188 to 222. At page 190, he says: “ The efforts of the English Courts appear, indeed, to give the statutes of that kingdom a prospective effect only, unless the language is so clear and imperative as not to admit of doubt and at page 191 he says: “ In this country the same opposition to give statutes a retroactive effect has been manifested.” In the case of Dash vs. Van Klude, 7 Johns. Rep. 477, Thompson, J., said: ‘ It may in general be truly observed of retrospective laws of every description, that they neither accord with sound legislation, nor the fundamental principles of the social compact. How unjust, then, the imputation against the Legislature that they intend a law to be of that description, unless the most clear and unequivocal expressions are adopted.” And Kent, Ch. J., said: “ I should be unwilling to consider any Act so intended, unless that intention was made manifest by express words; because it would be a violation of fundamental' principles which is never to be presumed.” See the whole of this elaborate and able judgment, commencing at page 499. In Qalder vs. Bull, 3 Dali. 386, per Chase, J.: “ Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust or oppressive, and it is a good general rule that a law should have no retrospect.”
    See Johnson vs. Burrel, 2 Hill, (N. Y.,) 238, where it was held to be a general rule, that a statute affecting rights and liabilities should not be so construed as to act upon those already existing. To give it that effect, the statute should in terms declare an intention so to act. See also Bailey vs. Mayor, 7 Hill. In Boyd vs. Barranger, 23 Miss. R. 290, it is said: “As a general rule for the interpretation of statutes, it may be laid down that they never should be allowed a retrospective operation, where this is not required by express command, or by necessary and unavoidable implication. Without such command or implication, they speak and operate upon the future only; especially should this rule of interpretation prevail where the effect and operation of a law are designed apart from the intrinsic merits of the rights of the parties to restrict the operation-of those rights.” And in the case of Me Gate vs. Emerson, (2 Harris Penn. R. Ill,) Rogers, J., in delivering the opinion of the Court, remarks: “ My respect for the Legislature is too great to allow me for a single instant to suppose that they designed so great a wrong as by a retrospective Act to make that right which was clearly wrong. But, granting that intention to be clearly expressed, I have no hesitation in saying that the Act is unconstitutional and void. ■ The Legislature has no power, as has been repeatedly held, to interfere with vested rights To give the property of A to B is clearly beyond legislative authority.
    If we submit to the test of the foregoing rule of interpretation the repealing clause of the Act of the 17th February, it appears impossible to give to it any other than a prospective effect; for, apart from any express command, or necessary and unavoidable implication that would constrain us to a contrary construction, from the plain and unambiguous language of the entire clause, the obvious design of its authors was nothing more than simply to repeal all existing laws on the subject of exemptions, but without any intention to interfere with any existing rights that may have been acquired under the original statute.
    Additional force is, I think, imparted to this view of the subject by comparing the repealing clause in question with the Act of Congress of the 4th of January last, repealing the law in regard to substitution. It is in these words : " That no person shall be exempted from military service by reason of Ms having furnished a substitute.” The following is the clause under consideration: “ That all laws granting exemptions from military service be and the same are hereby repealed,.and hereafter none shall be exempted except the following.”
    The distinction between the two is at once exhibited by the words in italics, and furnishes an ud erring indication of the intention of Congress to give to the Act of the 4th of January a retroactive effect, while the absence of similar language in the clause under consideration indicates as clearly a contrary intention.
    On this view of the case I am content to rest my judgment.
    It is therefore ordered that the relator be discharged from the custody of the respondent, Captain R. B. McCreary.
    An appeal was taken, by the respondent, Captain B. B. McCreary, to tbe Court of Appeals, and that Court ordered the case to this Court, where it was now heard.
    
      Melton, for appellant.
   The opinion of the Court was delivered by

-contra.

Inglis, Oh.

James Graham, who is within the conscript age, had, as the overseer of Eliza E. North, and at her instance, been, on the 21st December, 1863, exempted from military service for one year from that date, under the authority of the second section’ of the Act of Congress, approved May 1st, 1863, entitled “An Act to repeal certain clauses of an Act to exempt certain persons from military service,” dec. On the 1st May, instant, and therefore before the expiration of this exemption, the enrolling officer for Anderson District, supposing that by the ‘Act to organize forces to serve during the warf approved Eebruary 17, 1861, the exemption thus previously granted had been revoked, caused Graham to be arrested and detained as a conscript. Upon an inquiry into tbe sufficiency of the causes of arrest and detention had in a proceeding by habeas corpus, the Judge below considered that, by a compliance with the terms prescribed in the earlier Act, (of May 1st, 1863,) a right to exemption from military service for the full term mentioned in the certificate of exemption had been acquired, and that the repealing clause of the later Act (of Eebruary 17th, 1861) did not operate retrospectively so as to defeat or divest that right; and thereupon, ordered the discharge of the prisoner. The correctness of this judgment is brought into question by the appeal of the Commandant of Conscripts, which has been heard in this Court.

The Act of Eebruary 17th, 1861, (section 10,) repeals all former laws granting exemptions from military service, and defines the persons and classes of persons who should alone be thereafter exempted. Certainly, by this enactment, the previous law of May 1st, 1863, was repealed; and no one could therefore subsequently procure an exemption from military service for an overseer upon paying five hundred dollars into the public treasury, and otherwise conforming to the conditions prescribed in that law. But the inquiry here is, whether the arrangement long before consummated under the authority of that earlier law, between the government and Eliza E. North, executed on the one part by the payment of the stipulated consideration, and on the other by the grant of a eertifioat#of exemption, was, by this later Act, at onqe discontinued, so as to deprive her of the benefit of the unexpired portion of the term. The solution of this inquiry will not need a discussion of the competency of the Confederate Congress, constitutionally or otherwise, to accomplish such a result. The purpose, not the power, of that legislature is to be ascertained.

The authorities cited in the judgment below sufficiently evince that the rule of law, governing the construction of statutes in reference to the particular now under consideration, is.there correctly stated. Judge Sharswood, in his note (37) to .1 Bl. Com. 92, expresses it thus: “ A statute shall always be so construed as to operate prospectively, and not retrospectively, unless, indeed, the language is so clear as to preclude all question as to the intention of the Legislature.” To the same effect, Smith in his Commentaries upon Statute and Constitutional Law, says: “ It is a general rule that statutes are not to be construed retrospectively, or so as to have a retroactive effect, unless it shall clearly appear that it was so intended by the Legislature.” He adds, “and not even then, if by such construction the Act would divest vested rights.” In The United States vs. Heth; 7 Cranch. 399, Patterson, J., says: “ Words in a statute ought not to have a retrospective operation, unless they are so clear, strong and imperative, that no other meaning can be annexed to them, or unless the intention of the Legislature cannot be otherwise satisfied. This rule ought especially to be adhered to, when such a construction, will alter the pre-existing situation of parties, or will affect or interfere with their antecedent rights, services and remuneration, which is so obviously improper that nothing ought to uphold and vindicate the interpretation but the unequivocal and inflexible import of the terms and the manifest intention of the Legislature.” As to the effect, in this respect, of a repealing statute, Dwarris, in his treatise on Statutes, page 676, says : “ When an Act of Parliament is repealed, it must be considered, except as to those transactions passed, closed, as if it never existed.” Smith, in his wort above cited, says: "Inchoate rights generally derived under a statute are lost by its repeal, unless saved by express words in the repealing statute. It is otherwise, however, in regard to such civil rights as have become perfected far enough to stand independent of the statute, or, in other words, such as have ceased to be executory and have become executed.” Section 759.

It will be seen from these authorities that the mere repeal of a statute, without more, does not avoid or disturb transactions passed under its authority while in force, and that the party who affirms such retroactive operation must show in the statute such evidence of a corresponding intention on the part of the Legislature as shall leave no room for reasonable doubt. It is not necessary that the Court shall be satisfied that the Legislature did not intend a retroactive effect. It is enough, if it is not satisfied that the Legislature did intend such effect. Such evidence only as must compel assent can induce the mind of the Court to rest without disquiet, in the conviction of such intention. “ The confidence which it is the interest of every government to cherish in the minds of its citizens, will always strongly incline the mind to the conclusion that it could not have been the purpose of the Legislature to defeat a reasonable expectation suggested by its own laws,” or to avoid acts done, or destroy or abridge rights acquired under the sanction of its own authority. In the case now before this Court, the Confederate Government, by its legislation, induced Eliza E. North not only to engage the services of this appellee, for a valuable consideration, in the assurance that she had thereby made provision for the oversight and management of her property for a year thereafter, but also to pay into its own treasury a comparatively large sum of money in consideration of the waiver of its claim upon those services. The sense of justice of the dullest mind could not fail to be shocked by an exercise of power which, while the consideration price is retained, would deprive her of the services to which she has thus, in the confidence inspired by the law, purchased a double right. “Unless, therefore,” in the language of Johnson, J,, in United States vs. Heth, cited above, the words are too imperious to admit of a different construction, it will be the duty and the pleasure of the Court to vindicate the j ustice of the government, by restricting the words of the law to a future operation.” And what evidence is found in the terms and provisions of. this statute, which should compel a belief that the Congress intended a retroactive operation in reference to the class of cases to which the present belongs ? The words of repeal in the tenth section, broad as they are, cannot constitute such evidence of intention, for it has been seen that the law attaches no such import to mere terms of repeal, and the Congress will, of course, be presumed to have used language in contemplation of its legal effect. Nor can the general words of description in the first section alone, or in connection with the repealing section, sufficiently evince such intention. The one section (first) defines the class of persons who shall, from and after the passage of the Act, be in the military service of the Confederate States for the war;” and this appellee falls -within the terms of definition. The other (tenth) defines the several classes of persons who shall, thereafter, be exempt from such military service, and this appellee is not within the terms of definition of any of these classes. It is claimed that it must hence be inferred to have been the intention of Congress to revoke the temporary exemption previously granted, and, regarding it as at' an end, to put him, with others in like circumstances, forthwith to active duty. But that the Congress itself did not regard these provisions as in themselves accomplishing such results is manifest from the introduction, into the Act, of the fourth section, which, upon such a view, would be wholly unnecessary. Every one between the ages of seventeen and fifty, whether he had before furnished a substitute or not, or being otherwise previously discharged or not, would be within- the terms of description of the first section, and so in the military service; and his having previously furnished a substitute, or been otherwise discharged, would not bring him within the terms of definition of any of the exempted classes enumerated in the tenth section. If, then, the provisions of these sections in themselves imported an intention on the part of Congress to arrest the operation of all past arrangements between the government and individuals in reference to exemptions and discharges, made under the authority of previous laws, why were the special provisions, to this end, of the fourth section added ?

But it is argued, in the language of the third ground of appeal, that the express proviso in the fourth section, “that no person heretofore exempted on account of religious opinions, and who has paid the tax levied to relieve him from service, shall be required to render military service under this Act, is equivalent to an express declaration that all other persons exempted by former Acts, who have paid the tax levied to relieve them from service, shall be required to render military service under the latter Act.” The argument is, that the introduction of this proviso evinces the' understanding of Congress that, without it, persons of the class therein described would, under the operation of other provisions of the Act, notwithstanding their-having paid the stipulated price of exemption, have been forthwith in the military service; that the appellee and others in like circumstances who, it is said, have no higher claim against a retroactive operation of the repeal than those described in the proviso, must, in like manner, have been understood by Congress, in the absence of such express saving, to be put by the Act forthwith into the military service; and the failure to introduce such saving,' therefore, evinces the purpose of Congress that as to these such should be the effect.

By an Act of October 11/ 1862, persons holding certain peculiar religious opinions in regard to the lawfulness of war were “ exempted from military service,” upon condition that each one claiming the exemption should furnish a substitute, or pay a tax of five hundred dollars into the public treasury. This exemption was in terms general and without limit of time, as the considerations which induced it, if they justified it at all, apparently required that it should be. The provisions of the Act of February 17th, 1864, evince an entire abandonment of this policy, and, since its ratification, no one otherwise liable to military service can, on any terms, be exempted from that liability, out of respect merely to his religious scruples. Such a change of policy might be regarded as involving all those who bad hitherto enjoyed exemption from personal service, on the ground of their religious opinions, without distinction, in an immediate liability to military duty. This result would, as to those who had paid for the concession to their scruples a pecuniary consideration, have involved a breach of faith, and a violation of the plainest principles of commutative justice. The saving in the proviso of the fourth section was probably introduced to allay the fears of those who apprehended such a construction of the law. The appellee and those in similar circumstances are not exempted generally from military service. By a special arrangement between the government and those in whose employment they are, they are, for a limited period, relieved from military duty, and may, without impropriety, be regarded as in the military service, subject to the temporary claim of the employer. In the course of legislation on the subject there was not laid a like foundation for an inference of the kind above adverted to, as to persons of the class to which the appellee belongs, and there was, therefore, not the same occasion to guard against such inference. It still continued to be the policy of the government to exempt from service a proper proportion of persons engaged in agriculture. The fact of providing new and altogether different conditions upon which such exemptions should thereafter be granted, did not at all imply a design to disturb existing exemptions for the same purpose granted upon conditions of valuable consideration prescribed by laws previously in force. There is, however, another, and, it may be, a more satisfactory manner of accounting for the introduction of this proviso. It has been seen that the condition upon which persons of these peculiar religious opinions were allowed their exemptions was in the alternative " to furnish a substitute or pay a tax of five hundred dollars.” As the fourth section had just declared that those who had furnished substitutes should not be any longer exempt, it might be plausibly argued that, as paying the tax was but an alternative for furnishing a substitute, a reasonable construction of this declaration would require that one who had chosen the alternative of paying the tax could not have been intended to be put in a better plight than his brother who had, at as great, perhaps greater, cost, furnished a substitute; and that his exemption must also cease. The proviso may have been introduced, out of abundant caution, to exclude such a conclusion.

But the introduction of the proviso in the fourth section is the clearest recognition by the Confederate government of obligation to fulfil, to their utmost exigency, the engagements for exemption from military service which it had made upon an executed pecuniary consideration. The proviso “ hath this extent, no more.” It is without reason, other than this. Can it then be supposed that the Congress which was so careful to maintain the faith of the government when such maintenance involved the discharge for the full term of the war of a citizen capable of rendering, and otherwise liable to, military service, upon the consideration of five hundred dollars, intended that that faith should be violated in a class of cases where its maintenance involved a much less sacrifice on the part of the government, in the individual instance, and doubtless in the aggregate, upon the same pecuniary consideration. That the Congress did not intend the Act of February 17th, 1864, to have a retroactive operation in reference to the class of cases to which the present belongs, seems put beyond all reasonable doubt by the fact that when a retroactive effect is designed to be given to the Act, it is expressly so provided; as in the case of persons who had previously furnished substitutes, embraced in the terms of the fourth section.

While, therefore, the rule requires that the Act of February 17th, 1864, shall not be construed retrospectively, or so as to give to its provisions a retroactive effect, unless the language is so clear as to preclude all question as to the intention of the Legislature ” that it shall so operate, the terms and provisions of the statute, so far from thus clearly evincing such intention, do in fact, strongly import an opposite intention. The conclusion under such circumstances must be, that it was not the purpose of Congress, and therefore is not the effect of the Act, to revoke or disturb arrangements which, like the present between' the government and Eliza E. North, had been perfected before its ratification, under the authority of the law then in force, and that the exemptions resulting from such arrangements continue until they expire by their own limitation. The judgment below is therefore affirmed and the appeal dismissed.

Dunkin', Wardlaw, Glover, and Munro, J. J., and Carroll, Ch., concurred.

Appeal dismissed.  