The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1912-01-08
POOLE Won IN
SUPREME COURT
couRTMARTIAL or FORMER Ap.
JuTANT HELD TO HAVE
BEEN NULL AND
VOID.

Bismarck, N. d, Jan. s.-A decision
or the supreme court handed down
late Saturday afternoon holds the
articles OF war of the United States
do not govern the militia or NATIONAL
guards of the state in times of peace
and hence the judgment of the court
martial in the case of Brig. Gen. L. Ii
Poole, retired, is null and void De-
cause in excess Of jurisdiction. When
General Poole's term Of office expired
and his successor was appointed he re-
fused to- give possession. claiming the
appointment was for life time or until
resignation. Poole was courtmartialed
on the charge of violating an article
OF war OF the United States and dis
missed from the national guards OF
the state and judgment and sentence OF
the courtmartial were approved by
Governor Burke and commander-in-
chief OF the militia. Poole appealed
to the district court for the purpose
of-determining whether the courtmar-
tial has exceeded it's jurisdiction and
received favorable action and the case
was then appealed to the supreme
court by Amasa p, Peake, the ad-
jutant general Of the militia, with the
result. of another victory for Poole
The syllabus is as follows:
The state OF North Dakota, ex rel,
THOMAS II. Poole. respondent, VS..
Amasa p. Peake, as adjutant general
OF the state Of North Dakota, appel
liant.
Relator, Thos. H. Poole, as brigadier
--m~-. Fm.AGm~7N 30 +L@ y,a4fnna1 rraHuT6
OF this state. was tried n convicted
by q general court-martial OF certain
alleged felonies claimed to have beer
committed by him in violation OF the
Articles of War of the United States.
The Judgment and sentence OF such
court-martial, which dismissed him
from the nationl guard, were approved
by the governor and commander-in-
chief Of the militia, by the issuance of
an order accordingly. Relator sued
out a writ OF certiorari In the district
court Of Burleigh county for the pur-
pose Of obtaining a review OF such
Judgment and order. This appeal is
from the Judgment Of that court hold
ing the judgment and order Aforesaid
null and void as being without and in
excess Of jurisdiction.
Held:
l. That certiorari is a proper RENE
..dy to review the proceedings OF q
scourt-martial for the purpose of deter"
mining whether 1t exceeded it's juris-
diction.
2. The Articles Of War of the Unit
ed States do not govern the militia oil
national guard OF this state in time o.
peace, and consequently relator was
not amenable to general court-martia
for the alleged violations of such Arti
kclea Of War. Hence, the distric
court properly held that the judgmen
of such court-martial and the orde
of the governor and con1mander-tn
chief approving the same, were nul
and void because in excess Of jurisdic
ton. ... b.
(Syllabus by the court.)
Appeal form the district court, Bur
leigh county, winchester, J.
Certiorari to review the proceeding
of a general court-martial,
From q judgment in REALTORS favor
defendant appeals. ,
Andrew Miller. attorney general, Mel
vim A. Hildreth. brigadier genera
national guard (retired) judge advo
cate, for appellant.
Engerud, Holt & Frame for respond
ent.
Opinion by Fisk, J.. Spalding. c. ;
concurring specially.
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