Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-01-29
DECISION IN POOLE CASE CASE Will
: NOT EFFECT DISCIPLINE in THE
;;;NORTH J dakota NATIONAL GUARD

is entirely clear that certiorari is an
appropriate writ to review the pro-
ceedings of such court-martial for the
purpose of determining whether it ex.
ceeded its jurisdiction. While it is no
doubt true that it was not a court
within the meaning of Sections IS and
So of our state constitution, nor with.
in the meaning of Section 1910 R. c.,
1t was a tribunal within the meaning
Of the statute aforesaid, and it's acts
may be inquired into through the use
of such writ, not for the purpose of
correcting any more errors which
may have been committed by it. but
solely for the purpose of determining
whether such tribunal exceeded its
jurisdiction. 1t would be strange, in
deed. if this could not be done, for
otherwise great injustice might be in
flicted on a person by such a tribunal
while acting wholly without jurisdic-
ton, and yet such aggrieved person
might have absolutely no redress. Our
attention has been called by counsel
to no authority sustaining appellants
contention. The case Of the State v.
Nuchols, 1a N. D. 237, cited by appel
liant, is not in point. In that case we
held, it is true, that court-martial
is not an inferior court within the
meaning of Section 86 of the constitu-
ton, as it belongs to the executive
and not to the judicial department of
the state; but we also there said:
"Of course, if it exceeds its jurisdic.
ton or acts without jurisdiction. its
judgments are utilities, and any per-
son aggrieved thereby may seek prop
err redress in the civil courts having
jurisdiction, and such courts will fur.
nish appropriate relief"
See in this connection the valuable
note to said case as reported in 20
l.. R. A. IN. 81 413, wherein the au-
thorities are reviewed at length and
they will be found to support our
views as above expressed. One of the
leading cases is that of People, ex rel
Smith v. Hoffman, 1855 N. Y. 1852, Ga L.
r A. 597, 60 N. E. 1877, wherein that
great court, speaking through Judge
Vaun, most thoroughly considered this
point which was the sole question be.
fore it. and reached the conclusion
that certriorari will lie. The appel
lants contention in the case at bar
is there most effectually answered,
and the reasoning and conclusion of
the court meets with our full approval.
This brings US to the merits, which
involve the question whether the gen.
eral court-martial had any jurisdiction
to try the relator for the alleged Of
lenses charged against him and rem.
der its judgment and sentence dis
missing him from the national guard.
If this question must be answered in
the negative, it, of course, necessarily
follows that such judgment. as well
AZ the order made March l, 1909, by
the governor and commander-in-chief
approving the findings and judgment
of such general court.martial, and pur.
porting to dismiss relator as an officer
in the national guard, are utilities
and he would still retain his rank In
the guard as before.
We will now notice some of the
principal contentious of the respective
parties. They are widely and radio
ally at variance and involve numerous
of law. but we shall con-
slider only those which We deem con.
trolling and decisive Of the appeal.
Realtors chief contention is that he
was not amenable to q court-martial at
all. because he was not a militiaman
in active service, and there was no
war or public danger. In other words
he plants himself squarely on the con.
stitutional guaranty found in Section
8 of the state constitution, and also
in the fifth amendment to the federal
Section 8 reads: Until
otherwise provided by law, no person
shall, for a felony, be proceeded
against criminally, otherwise than by
except in cases arising in
the land or naval forces, or In the
militia when in actual service in time
IF war or public danger. =" ="
He asserts that said sections clearly
'orbid prosecutions Of militiamen for
'elonies by court-martial, except when
such militiamen are in actual service
n time of war or public danger, and
hat the charges on which he was thus
are felonies. Also that at
he time of such trial and conviction
here was no law in this state author
zing court-martial for the trial of q