
    EX PARTE M. C. TALKINGTON.
    The applicant is a resident of Collin County; is thirty-one years of age ; had been enrolled in the G S. Army. On the 30th of September, 1862, he furnished a substitute over forty-five years of age, and was regularly discharged from the C. S. Army. On the 4th day of January, 1863, J. Bankhead Magruder, Major General C. S. A., commanding the District of Texas, New Mexico and Arizona, made a call on the Governor of the State of Texas, for the State militia, to the number of 10,000 men. On the 8th day of June, 1863, F. R. Lubbock, Governor of the State of Texas, issued an order, directing a draft of the militia of the State, to fill said call. On the 15th of July, 1863, under and by virtue of said order, the applicant was enrolled and drafted. At the time of applying for the writ, he was held in custody by Lieut. W. A. Portman, in obedience to orders from the said Major General Commanding, disposing of the troops called into service as above stated. The name of the applicant, at the time of the draft, was not drawn until after fifty per cent, of the names had been drawn out of the hat. Writ issued Aug. 6th, 1863, directed to.said Port-man. Meld, that the applicant, under this state of facts, was not entitled to be discharged.
    A party who has furnished a substitute in the Provisional Army of the Confederate States, under the Conscript Laws, is not thereby exonerated from military service as a militia man, under the laws of the State ; nor is he thereby excused from a draft ordered by the Governor, in response to a call made upon him for a part of the militia for Confederate service.
    Ex parte F. L. Randle, page 8, cited and affirmed.
    The President is authorized by law to call for the militia, which he may do through the Commanding General charged with the duty of executing the laws, suppressing the insurrection, or repelling the invasion, for which the services of the militia are needed ; and the recognition of the validity of such a call by the Governor of the State, is sufficient evidence that it was made by the Commanding General, by the direction and in obedience to the orders of the President.
    The law provides that those upon whom the duty of responding to the call for a part of the militia is devolved, shall be selected by chance; and this shall be ascertained by drawing, by lot, from among all who are subject, the number that is called for. If the draft has been so conducted as to leave the selection of those who are drafted to fortune, the mere details by which the drawing has been governed, are wholly immaterial.
    Appeal from Collin. Tried below, before the Hon. R. L. Waddill.
    
      Easton, Brown & Breedlove, for appellant.
    
      Attorney General, for appellee.
   Opinion by

Justice Moore.

Judgment affirmed.

Chief Justice Wheeler did not sit in this case.  