Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-02-13

be to attribute to them an intent tC
depart from the we'll known, and we
believe almost universally recognized
rule to the 4contrary in this country
See Smith v. Whitney, 116 U. S., 1877,
and cases cited, where it was said ::
"And this court, although the que
ton of issuing writ of prohibition
to a court martial has not come be-
fore it for adjudication, has repeated.
ly recognized the general rule that
the acts of a court martial, within
the scope of it's jurisdiction ond
duty, cannot be controlled or re-
viewed in the civil courts, by writ OF
prohibition or otherwise" citing num-
erous cases.
The constitution should be con-
strued in the light of we'll settled
principle recognized in this country
prior to it's adoption and also in the
light of contemporaneous history,
and when thus construed no such in
tent will or can be inferred from the
language employed in section S6. Fur
thermore, it is very apparent that the
courts, over which this court is given
a experimenting control, are the in
ferfor courts belonging to the judi
cial department and which are ex
pressly enumerated IN the presiding
section of the constitution. A court
martial can, in no sense, be said tc
belong to the judicial department OF
the state although its functions are
judicial in character. AS before stat
ed, such court martial belongs to the
executive department and is organ
lied and it's judgments approved by
the governor as commander in chief
Of course, if it exceeds it's jurisdic-
ton or acts without Jurisdiction, its
judgments are a nullitv, and any per
son aggrieved thereby may seek prop
er redress in the civil courts having
Jurisdiction, and such courts will fur
nish appropriate relief. Whether, in
proper case, the writ of prohibition
may be employed by a court having
power in the exercise of its original
jurisdiction to issue the same, tc
enjoin and prohibit a court martial
from exceeding its jurisdiction OF
from acting In a case without juris-
diction, we are not here required to
decide. Such question is not before
us and we therefore refrain from in
timating an opinion threon further
than to say that the authorities ap,
pear to leave the matter in doubt. See
Smith v. Whitney, supra, and the few
early American and English coses
therein cited; Is Encyc. of Pleading
and Practice, 1108; see also the val
liable note in Ill Am. State Reports
at page 936; Grove v. Mott, 46 N. J.
L., 1928, and cases cited; Johnson "
Sayre. 1853 U. S., 1903; and also 2 An
drews Amer. Law (2nd ed.), PIP. 207
and 1912, citing numerous cases. The
author of this valuable treatise
among other things, says: "The writ
of prohibition is not proper writ in
such. cases for the reason that the
court martials are not inferior to, and
in fact are not within the same de-
partment with, the judicial establish
mment of the state" citing High on
Elk. Leg. Rem. e ed), 720-732.
It is entirely clear, however, for
the reasons heretofore stated, that
this court has been given no jarisdic-
ton to issue such a writ for the pur.
pose aforesaid, or for ony purpose
other than in aid of its appellate or
original jurisdiction or where the
same is necessary to effectuate its
experimenting control over inferior
courts. d.
Entertaining these views it is un-
necessary, as we'll as improper, to no
tice the various contentious Of coun-
sci upon the merits Z
Writ denied
Let A. w. Lucas CO.. frame your
,,;ot,,.In..A 49,, bnow hnw Swell