which, when exercised in such matters, must be respected: United States vs. Eliason, 16 Pet. 291; Martin vs. Mott, 12 Wh. 19; Luther vs. Borden, 7 How. 1; People vs. Lewis, 7 J. 73; Lackington vs. Smith, Pet. C. C. R. 466; Vanderheyden vs. Young, 11 J. 150. It is one of the fundamental rules of construction, that, when duties are imposed upon an executive officer of the Government, and he is confined to no specific method of carrying them out, he may select such means as are reasonable and proper, at his option.

So far as the State of Michigan is concerned, the President has not found it necessary to do anything more than make the proper requisition on the Governor, leaving him to carry it into effect by the State laws, if under them provisions had already been adequately made to furnish the troops, and if not, by other means-suggesting as appropriate in such case the steps actually taken. That these suggestions or requests are equally valid with a positive order, there can be no question. The requisition for troops is such an order, whether made in one shape or another: Martin vs. Mott, 12 Wh. 19. Although as an executive head of a State, there may be no process of compulsion directly against a Governor (as decided in Commonwealth of Kentucky vs. Denison, Governor of Ohio, 24 How. 66), yet he would be guilty of a gross violation of duty were he to disregard such a requirement; and the call must then be carried out through other channels. But this immunity from ordinary process has led with manifest propriety to the use, in intercourse between public officials, of the courtesy common between nations, of resorting to requests instead of peremptory demands-a courtesy which the authorities of this State have fairly deserved. But it is made a question whether the Governor can lawfully exercise such a discretion as is here left to him, of determining whether resort is necessary to any new mode of action.

To determine this we must first look to see precisely the nature of the discretion so remitted to him. It does not involve merely the question whether the State laws have made adequate provision for answering the call of the President. The act of Congress contemplates that there may be adequate laws inadequately carried

out. The first question is to some extent one of law, and yet not entirely, because the adequacy of the laws may depend somewhat upon the nature of the emergency. The second question is one involving considerations of mixed law and fact, peculiarly proper for executive consideration, and as plainly proper to be determined by the local Executive, who alone can have complete access to the necessary information. When he, as the organ of the State, is called upon to furnish troops, he is necessarily required to come to a conclusion whether those troops are attainable by ordinary means, and at once. If not, the call of the government must be disregarded, or resort must be had to other necessary and proper means. But to disregard the call, would be to violate the Constitution of the United States, which gives Congress an absolute right to authorize the President to make the call. In Michigan, the Governor is made by the Constitution itself, "Commander-in-Chief of the military and naval forces, and may call out such forces to execute the laws, to suppress insurrections and to repel invasions." He, therefore, is vested with such discretionary powers as are vested anywhere; and, as in the case of the President, he must have sufficient power to carry out any duty imposed upon him by the Constitution or the laws. In military emergencies he has the combined powers of a civil executive and a military Commander-in-Chief, subject, of course, to any constitutional restrictions, but subject to nothing which will prevent his obeying the Constitution. What might be the consequence of a needless resort to any but the regular and ordinary machinery of arriving at a lawfully prescribed result, when such machinery exists, is only to be regarded when such violation of duty appears. The orders of the President do not contemplate any needless resort to discretionary means, and it is not to be presumed that such a resort has been had without necessity. But it is proper to examine the State law of 1862 with reference to the variations. from it which have occurred.

The law provides how an enrollment shall be made, but expressly authorizes the Governor to cause the lists to be made by any other person when deemed necessary for the public safety. L. 1862, p. 22. Of this necessity the Governor is sole judge. In obtaining

from each county the necessary number, the Governor is directed to notify the sheriff of the number required, and thereupon the sheriff is required to notify the county clerk or his deputy; and, together, they are to copy from the lists, and put in a box, all the names on these lists, and draw them as jurors are drawn; and the persons so drawn and liable to do military duty, shall be determined to be legally held to serve. In drawing jurors, if a person drawn is known to one of the attendant officers to be dead, or insane, or to have permanently removed from the county, another may be drawn in his stead. 2 C. L. 1191, § 4363. If the sheriff and clerk have a similar power in drafting, they have no further power. The only preliminary method of establishing exemptions, provided for by the statute of 1862, is by application to the assessors, at the annual review of the assessment rolls. L. 1862, p. 47. The officers are required to note as exempt, at that time, all who are actually exempt by law, whether claiming exemption or not. But the law does not give them final and conclusive powers in the matter; and if the lists are made out otherwise than by them, it gives them no power at all. It is manifest that if the draft is made by the sheriff and clerk under this statute, the number actually drawn may be materially diminished, not only by exemptions but by personal disabilities, unknown or arising after the annual review. The law of Congress contemplates that, when the States are called upon to furnish troops, they shall furnish able-bodied soldiers; and although possibly some latitude is necessary in doing this, yet some means of securing in advance, as near as may be, the selection of men who may be lawfully held to service, must be regarded as very desirable, if not absolutely necessary. The appointment of these Commissioners, in accordance with the President's suggestion, to conduct the draft, by making it, or causing it to be made, in what is certainly a substantial compliance with all the safeguards of the statute, furnished a method of securing, with considerable accuracy, against drafting exempts, or persons physically unfit for service. In this matter the Governor has adhered as closely to the law as was possible; and has carried out its design by supplying its manifest deficiencies. So far as the arrest is concerned, the law is lit

erally complied with, for it contemplates that other proper officers than the sheriff may have custody of the delinquent; and where the person is not to be mustered in within the county, the sheriff has no power, under his mere official authority, to go beyond his own bailiwick. It is evident that the law can only be carried out by some discretionary agency, under the control of the Governor. But, even if the law in this respect were complete in its details, it permits a discharge by the sheriff-on payment of a penalty, which is not recognised by the Act of Congress, and which, if allowed, would prevent the Governor from furnishing the State quota, insomuch as no draft is provided for in lieu of the person commuting. The Governor has not, in my judgment, gone beyond the fair exercise of a legal discretion; and it is unnecessary, therefore, to consider how far this Court could, if it were not so, review his conduct.

I am opinion that the relator is lawfully detained by the Draft Commissioner, under the military authority of the State of Michigan; and that he should remain at the disposal of that officer, as lawfully drafted for service.

Writ dismissed for want of jurisdiction. MANNING, J., delivered an able opinion concurring for reasons similar to those assigned by the Chief Justice. We are compelled to omit it on account of the length of the case.

Supreme Court of the United States.-December Term, 1862.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE BANK OF COMMERCE, PLAINTIFFS IN ERROR, vs. THE COMMISSIONERS OF TAXES AND ASSESSMENTS FOR THE CITY AND COUNTY OF NEW YORK.

The stock of the United States is not subject to State taxation. The case of Weston vs. City Council of Charleston, 2 Peters 449, commented upon and followed.

In error to the Supreme Court of the State of New York.

The opinion of the Court was delivered by

NELSON, J.-This is a writ of error to the Court of Appeals of the State of New York.

The question involved in this case is, whether or not the stock of the United States, constituting a part or the whole of the capital stock of a bank organized under the banking laws of New York, is subject to State taxation. The capital of the bank is taxed, under existing laws in that State, upon valuation, like the property of individual citizens, and not as formerly, on the amount of the nominal capital, without regard to loss or depreciation.

According to that system of taxation it was immaterial as to the character or description of property which constituted the capital, as the tax imposed was wholly irrespective of it. The tax was like one annexed to the franchise as a royalty for the grant. But since the change of this system, it is agreed, the tax is upon the property constituting the capital.

This stock, then, is held by the bank the same as such stocks are held by individuals, and alike subject to taxation or exemption by State authority. On the part of the bank, it is claimed that the question was decided in the case of Weston and Others vs. The City Council of Charleston, 2 Peters 449, in favor of exemption. In that case the stocks were in the hands of individuals, which were taxed by the city authorities under a law of the State. The Court held the law imposing the tax unconstitutional. This decision. would seem not only to cover the case before us, but to determine the very point involved in it.

It has been argued, however, that the form or mode of levying the tax under the ordinance of the city of Charleston was different from that of the law of New York, and hence may well distinguish the case and its principles from the present one. This difference consists in the circumstance that the tax in the former case was imposed on the stock eo nomine, whereas, in the present, it is taxed in the aggregate of the tax-payer's property, and to be valued at its real worth in the same manner as all other items of his taxable property. The stock is not taxed by name, and no discrimination