Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-02-13
The DECISION! ! IN
in P00LE ]
Opinion Filed Denying Ap.
pIicatio|l!n. for Wit III. Of Pro-
hibitiOn Against Court
Martial. Judge Ellsworth
! Di$ents 10 Part But
: AqreeS to Result :.

. Az ISSS III hcSu
Following is the syllabus and deci,
sion handed down by the supreme
court in the application Of T. H. Poole
for a writ of prohibition; directed
against the court martial which was
trying Gen. Poole for military Of
lenses:
Syllabus.
The State of North Dakota, ex rel,
Thomas H. Poole, plaintiff, VS.. S. L.
Nuchols, w. c. Truemann w. R.
Purdon, B. c. Boyd, Arthur Mexican
and R. A. Thompson, as members
of a court martial convened for the
trial of Thomas H. Poole upon GER
tain charges OF violation Of the Ar
ticles of War, defendants.
1. Sections Sc and 81 Of: the con-
stitution of North Dakota constitute
a grant of power to the supreme
court and the language thereof being
restrictive in it's terms, this court
has such jurisdiction, and only such,
as Is expressly or by necessary i'm
plication therein granted.
2. BY section Sc the supreme court
is granted appellate jurisdiction only.
except as otherwise provided in this
constitution together with "a gen.
eral experimenting control over all
inferior courts =" Section 81 is
the only place in the constitution
where it is otherwise provided. This
section grants power to the supreme
curt ito issue writs of habeas corpus,
quo warranto, certiorari,
and such other original
and remdial writ as may be necessary
to the proper exercise OF its jurisdic-
tion.' Held, that the writ Of prohi-
bition, not being one of the enumerat-
ed writs, this court is without jurisdic-
ton to issue the same, except where
its issuance is necessary to the prop
er exercise of its jurisdiction in a
pending cause or to effectuate this
courts general experimenting control
over inferior courts.
3. A court martial is not An infer
ior court within the meaning of Sec
ton Sc of the constitution, it not be-
longing to the judicial but to the exc
cutive department Of the government.
The inferior courts referred to in Sec
ton Sc are the courts enumerated in
section IS which belong to the judi
cial department.
Ellsworth, J., dissenting.
(syllabus by the court.)
Original application for the issu.
ance Of a writ of prohibition. Denied.
Engerud, Holt & Frame, for plain
tit. E:S
Andrew Miller attorney general,
and M. A. Hildreth. Judge advocate.
Opinion by Fish, J. Morgan, Spald-
Ing and Carmody, J. J, concurring.
Ellsworth j., dissenting in part but
specially in the result.
The Opinion.
Fisk, J. Relator makes application
to this court for the issuance Of a
writ of prohibition to enjoin and pro-
hibit defendants, who are members OF
q court martial, from further proceed
ing with the trial of relator upon GER
tain designated charges and specifca.
lions, a copy of which was made,
part Of the application. Elaborate ar
guments we're presented on behalf
u relator and also against his conten.
t.t- and numerous reasons were
urged both in favor Of and against
the issuance of such writ, but they all
relate to the merits, being based upon
The apparent assumption, which we
deem erroneous, that this court pos
sesses Jurisdiction to issue such writ.
A majority OF the court are agrrsd
that re such jurisdiction las teen
conferred by the constitution and
berg" the realtors application must
BE- ae1zeG. This is not a Ease, such
Is has frequently arisen in this stase,
wte:r the exercise Of original fT.is-
d!ction Is discretionary, and depend-
ent upon whether the subject matter
is publici juris and affects the ,,,ss
ereignty Of the state, its franchises
and prerogatives or the libe.ties Of
the people,. but it is one in which We
are asked to- exercise a jurisdictfonI
not conferred at all b. the coEstitu-a
ton. It Is a case Of a total want q
Jurisdiction. This is clearly appar-
emit by the language employed I'll tne
.LAWYsa, MERCHANT Or wAeE
less vel. We have made a special