Jamestown weekly alert. [volume] (Jamestown, Stutsman County, D.T. [N.D.]) 1882-1925, 1911-01-05
OPINION OF THE COURT
Rendered BY Judge Winchester of
Bismarck in POOle-Peake
Militia Case


kota ex rel. T. Fl. Poole, plaintiff,
VS.. A. P. Peake, defendant will be of
interest to the militia boys of the
state. The following is the opinion
of the court:
State of North Dakota, county of
Burleigh. In District Court, Sixth
Judicial District.
State of North Dakota, Ex Rel.
Thomas H. Poole, plaintiff VS.. ANA
sa A. Peake.
Order for Judgment
The above entitled proceeding
came before this court for hearing on
the 18th day of August, 1910, at Bis
marck, North Dakota, the hearing
having been postponed from time to
time by stipulation of the parties.
Edward Engerud appeared for relator
and Hon. Andrew Miller, attorney
general, appeared in opposition. The
defendant filed motion to quash,
which was overruled and thereupon
the return to the writ was. filed. Aft
er hearing argument of counsel and
being advised in the premises, the
court finds: That all the allegations
of the REALTORS petition are true;
that the relator, Thomas H. Poole,
was, on and prior to the 9Th day of
January, 1909, the adjutant general
of this state and his term as such
expired on the 9Th day of January,
1909, and the Hon. Governor, John
Burke, as governor and commander
in-chief of the militia, on January
7th, published document in the
form of a military order, appointing
Col. Peake acting adjutant general
to succeed said Adjutant General
Poole, and placing the latter on the
retired list sof the national guard,
said order to take effect at once, and
also on the same day published an
other order announcing said Poole's
retirement from the active service in
the national guard and commencing
his past services. That thereafter,
on the 18th day of January, 1903,
the said Governor Burke in his ca
pacity of commander in chief made
the formal written accusation ap-
pearing I'm the record charging said
Poole with having wilfully disobeyed
said orders and a certain other order
subsequent thereto, and on said day
ordered and directed court martial
to be convened to hear and try said
accusation. That pursuant to said
order a court martial was convened
and heard said accusations and found
the said Poole guilty of some of said
charges and acquitted him of others,
and imposed sentence that said
Poole be dishonorably discharged as
a retired brigadier general of the
national guard of the state. That
the proceedings and judgment of said
court martial were duly reported to
said Governor Burke as commander
in chief of the militia and the pro-
ceedings, judgment and sentence OF
said court martial were thereafter
on the 1st day of March, 1909, ap-
proved by said Governor Burke as
commander in chief Of the militia,
thereby purporting to deprive said
Poole of his lawful honors and priv
ileges as such retired brigadier gen
eral of the state of North Dakota.
AS conclusions of law the court
holds, that said Thomas H. Poole was
not at any time amenable to the 1ur-
isdiction of said court martial and
the facts alleged and found against
him in said conclusions before said
court martial did not constitute any
offense triable by court martial and
the purported military orders set
forth in said accusation were null
and void and the order convening
said court martial and it's proceed
ings, orders, judgments and SEN
tence and the order of the Hon.
John Burke and governor and COM
mander in chief of the militia Of date
of March 1st, 1909, approving the
proceedings, judgment and sentence
of said court martial and purporting
to deprive said Poole Of his rank and
title as retired brigadier general
of the national guard Of North Da-
kota are each and all null and void
and should be set aside and held for
naught. The clerk Of this court Will
enter Judgment accordingly.
Dated at Bismarck, N. D., this 7th
day of December, 1910.
BY order Of court:
w. H. Winchester,
District Judge.
Dana Wright for the. next sher-
In