Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-03-25
|DENlAL Of Petition
for REHEARlNG POOLE
| court MARTIAL CASE

Fisk, J. We have carefully consid-
tered the petition for a rehearing filed
by appellant and find nothing therein
to cause US to change our views as
above expressed.
In denying such petition we deem it
advisable to briefly notice some of
the principal contentious made in such
petition. 1t is manifest that appel
lant's counsel are laboring under
misapprehension regarding the courts
holding, for they start the petition
with the following assertions: The
decision of the court proceeds upon
the theory that the militia of state
can only be subject to trial by court.
martial when they are in the actual
service of the state or nation" This
is very far from the fact. for the exact
contrary is true. We held that the
Articles of War do not govern the
state militia in times of peace, for
the legislature has thus ordained, and
consequently the officers and mem.
bers of such militia are not subject
to court martial in time of peace for
!
War. But We distinctly said that the
power of the legislature to provide for
the enforcement of discipline in the
organized militia by fine and imprison.
ment imposed by courts-martial for
infractions of rules and regulations,
even in times of peace, is undoubted.
Counsel in their petition again call
| our attention to Sections 1873 to 1913
| of our state constitution and insist
that we have overlooked the same. In
this they are again mistaken. There
is no room for doubt that "all able
bodied male persons residing in the
state between the ages of IS and As
years." with certain exceptions, con-
sttute the militia Of the state, nor is
there any room for doubt that the Or
ganized militia or National Guard con-
. stitutes the active Mill~ia.' But the
terms "active militia" and 1.-THE militia
when in actual service in time of war
| or public danger" are entirely dis
tinct and of different meaning and the
J basic fallacy in counsels contention
apparently is their failure to distin-
guish the difference between these
terms. Section Of our constitution
which provides that no person shall
for felony be proceeded against
criminally otherwise than by indict-
ment, does not except from its pro-
visions the active militia in time of
peace but it excerpts 1.-THE militia waen
in actual service in time of war or
public danger" No doubt the trainers
of the constitution contemplated that
the legislature would prescribe rules
and regulations for the government of
the organized or active militia in time
of peace as we'll as when called into
active service for the state in time of
public danger ETC., for section 1872
clearly contemplates that there may
be trials by courts martial but it is
perfectly manifest that until such time
as the legislature has made provision
therefore no such trials could be had.
Our attention is called to Section 1853
r. c.. which makes certain acts a
misdemeanor and concludes with the
statement land upon conviction shall
be fined in a sum not less than $4,000
nor more than $4,000, or may be
caahiered." THIS section is somaN
what vague. But conceding all That
is claimed for it by appellants counsel
the most that can be said is that the
cases falling within the provisions of
said section members of the militia
may be court martialed, but this does
not aid appellant in this case for re- ;
spondent is not charged with viola
ton of said section but is. as we have
seen, charged with a violation Of the
21st and 61st Articles Of War.
Our attention is called in the petit
ton the fact that in three instances
during the statehood prosecutions by
courtrmartial have taken place in this
state, but this fact is in 70 manner
controlling nor does it operate in the
least to change our views of the law
as above expressed.
Counsel evidently do not understand