It is earnestly insisted, and most ingeniously argued, that this second section of the amended, act repeals so much of the twelfth section of the act of the 3rd of March, 1863, as makes it the duty of the President to take into consideration the period of service of the volunteers and militia from the several States. The argument in favor of the repeal rests wholly upon the words of the amendatory act-"the number which has been previously furnished therefrom." It is insisted that "number," as here used, means an arithmetical count. I cannot so understand it.
The act of the 3rd of March, 1863, had prescribed a mode by which the number of men due from the several States, and the districts of the several States, should be ascertained; and that mode required, not a simple count, but a consideration of the period of service of men previously furnished. Congress used the word number in the second section of the amendatory act, understanding that the mode of count prescribed in the original act would be preserved.
There are many evidence upon the face of the amendatory act which show that it was not the intention of Congress to change the mode of count prescribed in the original act.
The amended act does not undertake to say how the quota of a State or district is to be ascertained. In ascertaining what number is due from a State or district, the President must pursue the mode prescribed in the twelfth section of the original act- he must take into consideration the period of service; and yet, under the construction insisted upon, when he comes to equalize the draft, as authorized to do by the amended act, in the districts, he must be controlled by simple numbers. It cannot be that Congress intended one mode of count for the States and districts, and a different and wholly inconsistent one for the subdivisions of districts. Inextricable confusion would result.
From the language used in various parts of the amendatory act, in is evident that Congress did not intend to disturb the mode of count prescribed in the original act. For instance, in the eighth section of the amendatory act it is said that the town, ward, or township shall be credited by his service; and in the seventh section, "the period for which he shall have been, enlisted," and "the period of the shall have been drafted;" all going to show that time of service was held to be an element in the count.
Nor I think that the argument in favor of the repeal is aided by the language of the first section of the act entitled "An act further to regulate and provide for the calling out the national forces," approved 4th July, 1864. The act says, that "any such volunteer, or in case of draft, as hereinafter provided, any substitute, shall be credit to the town, " &c. Congress meant that credit would be given according to the mode of count prescribed in the act of 3rd of March, 1863.
The whole purpose of the second section of the amendatory act was to enable the President to equalize the draft in the several districts; surely not to have one mode of count in ascertaining the quotas of the several States and districts, and another mode for equalizing the districts. Besides, it is hardly to be considered that Congress would thus incidentally strike from so important a statute a feature so prominent and equitable.
I am, therefore, of the opinion that the mode of ascertaining and assigning to State and districts their respective quotas, as prescribed