
    THE STATE, ex rel. GRAHAM, in re PILLE.
    [PETITION POR CERTIORARI TO REVISE PROCEEDINGS UNDER HABEAS CORPUS.]
    1. Persons within conscript ages, held constructively in military service of Confederate States, and not subject to militia service. — Under the provisions of the act of ooDgress approved February 17, 1864, persons who are witliin the ages of seventeen and fifty years, and who are not shown to he specially exempted, are constructively in the military service of the Confederate States, and are, therefore, not subject to militia duty at the call of the State.
    2. Inability of domiciled foreigner to'ymilitary se>'vice. — A. foreigner, who is domiciled in this country, is liable to military service in the armies of the Confederate States; and being placed constructively in that service by the act of congress approved February 17,1864, he can not be taken by the State as a militia-man.
    In tbe matter of tbe petition of Polinice Pille for tbe writ of habeas corpus, by wbicb be sought to procure bis discharge from tbe custody of Col. ¥m. B. Graham, who held him as a second-class militia-man under tbe call of tbe governor. Tbe writ was sued out before tbe probate judge of Montgomery county, who, on tbe bearing, discharged tbe petitioner; and appbcation is now made to this court, in tbe name of tbe State, for tbe writ of certiorari, or other remedial process, to revise bis decision.
    P. T. Sayke, for tbe State.
    Geo. Goldthwaite, contra.
    
   A. J. WALKER, C. J.

In a case recently decided by us, we held that persons within tbe age of conscription, and bable to conscription, were constructively in tbe mihtary service of tbe Confederate States.—Ex parte Graham, in re Emerson, at tbe present term. This decision was made under tbe influence of tbe first clause of tbe act of congress of 17th February, 1864, wbicb is in these words-: “From and after tbe passage of this act, all white men, residents of tbe Confederate States, between tbe ages of seventeen and fifty, shall be in tbe military service of tbe Confederate States.” This express and positive declaration of tbe statute places every man, bable to conscription, constructively in tbe military service of tbe Confederate States; and a man in such service can not be taken into tbe military service of tbe State as a militia-man. Tbe claim of tbe State to the military service of a man must yield to tbe conflicting claim of tbe Confederate States; for tbe constitution, and laws of tbe Confederate States passed in pursuance thereof, are tbe supreme law of tbe land.

Pibe, who obtained tbe habeas corpus in this case, is bable to conscription, and in tbe military service of tbe Confederate States, if be is domiciled in this country. Therefore, if be is a domiciled foreigner, be is in tbe service of tbe Confederate States, and not liable to the military service of the State; and in no point of view could the State have a right to take him into the army as a militia-man.

We approve the decision of the court below, and refuse the certiorari asked.  