Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-01-29

: There has been a great deal of con.
troversy in national guard circles
throughout the state regarding the de.
cision in the Poole case as handed
down by the North Dakota supreme
court: Some of the officers OF the
North Dakota regiment deem that the
decision precludes the enforcement of
discipline by militia officers in time
of peace. The fallacy of this view is
seen by anyone who reads the com.
plete opinion which the Tribune pub.
fishes herewith:
Dakota, October, 1911, term.
The State of North Dakota, ex rel
Thomas H. Poole, respondent, vs..
Amasa P. Peake, as adjutant general
of the state of North Dakota, appel
liant.
Appeal from district court of Bur.
leigh county, w. H. Winchester, J.
Certiorari to review the proceedings
of a general court-martial. From q
judgment in realtors favor, defendant
appeals. Affirmed.
Andrew Miller, attorney general;
Melvin A. Hildret brigadier general
national guard (retired), judge advo'
cate, for appellant. Engerud, Holt
and Frame for respondent.
Fisk, J. While fully realizing that
we are in no manner responsible eth
er for the facts or the law which must
control in disposing of this appeal,
the duty which has been assigned the
writer Of giving expression to the
views of the court Is not a pleasant
one, owing to the nature Of the litiga-
ton and the apparent Ill feeling en-:
gendered thereby, and more especial
ly in view of the fact that our conclu-
sion does not coincide with the views
entertained by the chief executive OF
the state, as we'll as by prominent of.
ficers of the national guard who were
instrumental in iustituting and prose.
cutting the proceeding before the gen.
eral court.martial, hereafter men.
toned, out of which proceeding this
litigation arose. Although the views
of these high officials Of coordinate
branch OF the state government are
entitled in case Of doubt to much re-
spect and weight relative to the ex'
tent of the powers delegated to them
by the constitution and statutes, yet
such views. when clearly erroneous,
must be declared so by the courts, and
the acts of such officials, when mani
testify in excess of jurisdiction. must
be adjudged null and void whenever
their legality is properly challenged
in court, for otherwise the court would
not be discharging its constitutional
duty.
The facts necessary to full under
standing of the questions involved are
correctly stated in appellants brief,
and in substance are as follows:
This cause comes to this court on
appeal from a judgment of the dis
tnct court of the Sixth judicial dis
trict, entered on the 9Th day Of janu-
ary, 1911, which In effect vacates and
annuls the findings and sentence Of
a general court-martial which found
the respondent, Thomas H. Poole,
guilty of having violated the military
code of this state and dismissing him
from the service of the national guard
of the state.
The respondent was tried before a
general court.martial on the 18th day
of January, 1909. He was found guilty
Of having violated both the twenty
first and sixty-frst articles of war, and
sentenced by the court to be dis
missed from the service OF the nation.
al guard Of the state of North Dakota
This sentence was approved by the
governor of the state. On the 9TH
day Of August, 1909, on application Of
a writ Of certiorari was H.
sued, directed to Amasa P. Peake, as
adjutant general Of the state, requir-
ing him to certify and transmit to
the district court Of the Sixth judicial
district a true and full record Of all
he proceedings of said general court
martial and the orders Of the govern
,r, and praying that all the said pro-
;eedings be declared null and void and
hat the respondent be restored to big
'ank of a brigadier general (retired)
n the North Dakota national guard.
rhe court made findings and an order
or judgment, which adjudged and de-
ermined that the order made and
ssued by Honorable John Burke, as
governor and commander-in-chief Of
he national guard of the state OF
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