United States v. Murphy (70 U.S. 649)/Opinion of the Court

We are of opinion that under the circumstances of this case, the Circuit Court had jurisdiction of the cause.

We see no reason in the nature of the transaction, nor in the language of the statute of 8th of August, 1846, under which the remission is supposed by the counsel of the United States to be justified, why a case brought into the District Court by an order of this Kind should not be sent back under proper circumstances. The order can only be made on the motion of the district attorney, or whenever in the opinion of the District Court difficult and important questions of law are involved in the case. There is, therefore, no danger of collision between the courts on account of such orders; and as they tend to the despatch of business, and to sound decisions on legal propositions, there is no reason for limiting the rule further than the language of the statute requires.

As respects the second question.-The defendants were indicted for assaulting an officer while engaged 'in making an enrolment of men subject to do military duty.' This language describes with entire accuracy the offence provided for by the 12th section of the act of February 24, 1864. But the indictment was found before that act was passed. It was found under the 25th section of the act of March 3, 1863, on the supposition that making an enrolment was a service relating to the draft; and the judges divided on the question whether this was so, within the meaning of the last-mentioned act.

If Congress had not passed the amendatory act of February 24, 1864, it might very well have been asserted that making an enrolment of persons liable to draft, was a service relating to the draft; for being a necessary preliminary to putting the draft in force, it bears a very close relation to it. We have, however, held in the case of the United States v. Scott, just preceding, upon a comparison of the 25th section of the act of 1863, with the 12th section of the act of 1864, that the one is limited to the prevention of resistance to the draft, and the other to preventing resistance to the enrolment. Comparing the two acts together, the later one must be held to be a legislative construction of the first, by which a service in relation to the enrolment cannot be held to be a service in relation to the draft.

The first of the questions certified to us must be answered in the affirmative, and the second in the negative.

ANSWERS ACCORDINGLY.