The sun. [volume] (New York [N.Y.]) 1833-1916, 1899-07-21
NAY DISMISS MAJOR SMITH.
,,,,, mr. pROHIBITION REFUSED TO
mr. 7IST MAN.
r,,m,n,nr Board. the Court says o"h not
~" Tr,trrined from Ina"irinE Into his
,',,I,rt Mt snn Juan Hi +" Determine
,Y,,,,.. for state Military Service.

Major Clinton H. Sm''h nlo'lo" W -. -"
n.rto,nent tenn lEary VIZ - 'i,,.,
r,.,raining the Na'''"'''- ,,',th ,ha
nv GOV Eonseyri from pr'c''u."N ",'n -, ~,
inquiry Dr!eieI mo n,S "'ne7S W. go, H..
ocj..r ~ the state militia was "oh''u ~
,ico BceAmau ~ 'hi o"p'''"' Jul -,I
Smith alleged MAJ ''' p"''" We ,,,.n
tutel that II """H ~. ~ .''', -, a,aoo,,
Ing and he h""'p' ''' Vii. 49, ,t,o a.,l
orng To- oitF'SS MN '',~"'.
nation. Justice Hr"hu"" s"'S ,o,
Tho reH''t is "u" 49,,
IN Wv ",, ,v.,r with stain vas in the ser.
inE W h, In.teI states comm ssioned as
1tsp,.pnut Colonel II tue SeNehN'Urst heHi-
I'' Infantry. New York Volunteers His
NEIL ~ '''"" a.. r,dorol service III wn.
conduct VINE III ','' ,,, :,
NJ san Juan HI, having peeh '"e "utJe.. VI
s,,,trisr, after he had neen mustered out OF the
cu''s'N'" "a I,.,,.l S,,,.s a cnnrt Of inouiry
sery'e o. me h!'e' - " e.', ,,,,.a,',,,
was ordered un his written re luee' pursunh.
!" wv ",',' t ros,ert to the arcusatIop
took evidence wa" ,i,,, .nt rs,,ort.I ,rs
-. ,Le officer ny whom the court Was con-
'a"'e ...bor with a statement of the facts
'rned' 'osr,he. ",', 49,. nIrr, ths,sor which
nv adverse 10 the rolatOr that recon-
va, I,,.~,, wa. made that charges he preferred
msnoa,I" ,ri,l ly a ourtmartial, or il
''Sho,,a ha considered that such a couctwould
IL 'I,' sliri,p to entertain such charges
because they inve'Ned oHehces committed
uhn, in the United states service. then that
VIM q" t.l i.rorr an examining boarl TO
he be ordeto' '''o' "' -, -. ~
determine his CAPACITY and fitness % serve as
oNln.r OF the state militia. The proceed
al o'''t'' c,,,t having been approyed, and
inEs pI '"o ''"' ,t.I -, =, ,ha 49,,
the doub: suggested WlIN respert % the COM
.,.rcy n a court. martial to act in the matter
ernor directed the rciator to appear before
49, ,rr thr purpose 20 tie examined with re-
.noet -, ina mora character capacity and gen.
s ara ' c''S,tmn1lis,ionrl onicer
'"iIthNIIsh inl.i'ary courts are not EN- braced
ri,hiu The ,niicial system OF the state. but
r,tbrT al pertain 10 the Executive Department,
80 nbIrh l. corNdel the administration Of the
Military 'aw the ,tate; they are tribunals ii,li
n her nature Their jurisdiction Ia special
and Ie Llar and j. confned to the trial Of per
I"waud their p,,nis hnaht IL found to he guilty.
It has Geen hti n England and here that
ton with rpsIert To- the matters that come
within tn-lr Iur,irw. they are still amen
Sbs to the rly oourts in % Tar as questions
\ ,triin,d hy writ Il prohibition from proceed.
, ins in Excess Of Jur',dlction. =.
II, f.. think, weli e-tahii shed that a writ OF
,roh'Ib,,ion Nrimgs up Questions of jurisdiction
nnir and VII, not warrant the court in inter.
ferins with the action or proposed action o!
The tTibura, lolOw with respect to matters OF
rrorelurp upuu winch il has the right to pass
IN inc due exercise IT its powers. 1t is this
vary thin, which as view il. this court Is
askel T. 10 III tn. case at bar
70 question 10 raised respecting the lawful
ness OF the Organization. of tho board or of its
jurisdiction to act in lie matter. but II lis
Claimed tia thew propose to receive or to con
siIer evidence not admissible i'll the common
law courts. that they intend 10 act on INSULT
ACT. IL az
Ing OIL evidence Of alleged offences against
military law cosniza'e elsewhere and :, for o,
under me Jaw, NJ this state. With the eXcep-
lion Of the last IF these riaims Il is. | think
OF them prssentIn sufficient basis for "A writ
Concerned. Il + had .sn aJlressed to rhnrges
for the trial OF which court martial had
Seen ordered. it may Ie hat prohibition would
run to thu court on the ground Of lack OF jurs,
d!ction OF the suheot matter: but 1t is I'M
ntcessary 10 d-t-rlninc this inasmuch az moth
ing Of the kind has 'een ATTEMPTED 'i
commit cd tiiler within or.witnout the state,
nor has a court martial been convened for
any such purpose. II is true that he has been
10 called hi. in it, nature, wIrp0s. and scope
Of inquiry such a l,oard i. radically dire rem:
from court. nartiaL Although performing
functions which ia q broad sense may be
characterized a. judicial it cannot be called a
court i is an executive agency Of an en-
TREY different character
''ftnes: FOR the service il the sole object of
The inquiry. ara l. i. Of course. evident that
there is mo- p,Nrai doIinnu.nmv Or vi0Iot;nn ~
law on the lar' of the officer In no sense
whatever !, it within the competency Of the
dress any wrovS. and its findings 10 no, OF
themselves cary with them any oppTobrium
winch tn. I'm nT ."E Of ' tms tahG N'H he
\ rTedcasi j. Of ITSELF reprehcnsbie In short,
s ssps S19 y 9i HaMnott.n is an aEenSy de-
charge his responsibilities az Commandment in