The Montgomery advertiser., 1903-05-15
HIGDON CASE ARGUED
SUBMITTED TO SUPREME COURT
 ON BRIEFS.
Deposed Commander of Third Infan- try Appeals to Supreme Court to Compel Governor to
 Reinstate Him.

The application of Col. Elijah l.. Hfgdon of the 3rd Infantry for an alternate writ of mandamus to compel the Governor to restore him to the command of his rcss4- ment was submitted to the Supreme Court yesterday.
 The case originated in the City Court of Montgomery where the petition was denied. It was submitted yesterday od ap- peal from the lower court.
 Colonel Higdon was yesterday repre- sented before the Supreme Court by for mer Congressman Jesse F. Stallings. Col mel Claude Hamilton, Judge Advocate General on the Governors staff, repre- scented Governor Jelks.
 The case was submitted on briefs. No oral arguments were made.
 Colonel Higdon, 1t will be recalled, was relieved from the command of the 3rd In- fantry more than year ago. He had been previously relieved but had been restored to his command. On his restoration to his command he declined to accept the command from which he said he had been relieved by the Governor without cause, until the Governor had stated his reasons for his action. Upon the receipt of Col onel Higdon's communication the Cover nor again relieved him from the com mand of the regiment.
 Judge A. D. Sayre of the City Court of
 
 tried, dismissed the petition. holding the Governor of Alabama could not be man. damused fir any act of his as commander in chief of the National Guard. Judge Sayre also held that 1t was doubtful if the Governor could be mandAmused for any official act.
 In his brief to the Supreme Court Mir. Stallings sets out that Colonel Higdon was relieved of his command January @, 1902, and that on January 29, 1905. he had filed petition for a mandamus to compel the Governor to restore him. The brief alleges that Colonel Higdon was deprived of his command without cause or reason. The principal contention in Mr. Stall lings's brief is that the Governor had no right to relieve an officer of the Alaba- ma National Guard without either a court of equity or a military court martial Sev- eral other points are stressed but the aD- sence of a court martial prior to the re- lief of Colonel Higdon from his command is emphasized.
 Mir. Stallings submitted long argument to combat the conclusion of the lower court that no mandamus could apply to the Governor. If that contention was cor rect. he declares, the Governor could abolish the Alabama National Guard with | out interference from the courts of the State or that If he chose he might tear down the Capitol.
 In his brief Colonel Hamilton sets out the fact that on his restoration to his command Colonel Higdon had asked of the Governor private or public apolo- BY. The brief declares that the courts of the State cannot force the Governor tp make any apology. The main contention of Colonel Hamil- ton is that the courts have no power In any case by any means to compel the Governor to take any action In military or any other case. It is further contended that the civil courts are without jurisdic- | tion in military cases.
 As to the doctrine that the Governor cannot be reached by a mandamus the | hrief cites the famous case of the Ten nessee and Coosa Railroad Company vs Governor Moore. It contains number of other cases in which that decision was | sustained and confirmed.