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

person charged with any crime; that
the articles of war do no. govern the
militiamen except while In actual
service.
It is needless to detail appellants
contentious. They are squarely OPP
posed to those Of the relator. We are
compelled to uphold REALTORS conten.
lions and will proceed to point out
what We deem to be the basic fallacy
in appellants argument. His counsel
apparently wholly ignore the radical
and fundamental distinction between
the militia of the state and the regu-
lar army and navy of the United
States, and the laws governing EACH
Such distinction is perfectly clear and
is recognized in both the federal and
state constitutions as we'll as in the
statutes. Neither of such constitu-
tons forbid prosecutions for felonies
otherwise than by presentment or in
dictment in cases arising in the land
and naval forces (army and navy,
even in times of peace; but they each
clearly forbid such prosecutions in
cases arising in the militia, except
when such militia is in actual service,
in time of war or public danger The
regular army is at ali times governed
by the articles of war, and its officers
and soldiers are amenable to courts
martial for any violations thereof. as
we'll in times of peace as In times Of
war. Not so, however, with the state
militia. The latter is governed;
thereby only while in actual service
in time of war or public danger or
when express y so provided by local
state law. A moments reflection will
serve to demonstrate the wisdom Of
such distinction. A moments reflec.
tion will serve to demonstrate the
wisdom Of such distinction. AS said
by Judge Vaun in People v. Hoffman,
supra, there g wide distinction be.
tween the regular army of the nation
and the militia Of state when not
in the service of the nation for dis.
cipline which is ample for the latter
will not answer for the former. A
member of the state militia belongs to
civil life, has civil avocation. and
only occasionally engages in the ex
ercise of arms A member of the
United States army on the other
hand has no employment except that
Of q soldier and arms constitute the
business of his life. Hence, more rigid
rules and higher state of discipline
are required in the one case than in
the other Moreover, the state mil
tia is organized by statutes of the
state, and the legislature, under the
limitations Of the constitution, has
power to regulate the entire subject,
to invest boards of examination with
such authority, and to give the civil
courts such power to review as it sees
fit."
As We understand the position Of
appellants counsel, 1t is that the arti-
cles of war govern and control our
state militia in times of peace the
same as they govern and control the
regular army. The charges against
the relator on which he was convicted
by the court-martial, are based on al
legged violations of the articles of war.
It is perfectly manifest to our minds
that such proceedings were a. nnllity
for the obvious reason that our legis.
lature had not, in its wisdom, seen fit
to thus ordain. The military code In
force in this state at the time relator
was tried and convicted, being chap.
ter q Pol Code 1905, expressly pro-
vided that "the militia while in ac=
tive service shall be governed by the
military law of the state, and the
rules and articles of war of the
United States" (Sec. 1NO but such
code will be searched in vain for any
provision adopting the articles of war
for its government when not in active
service, or in other words, In time
of peace, and such statute nowhere
defines any military offenses punish
able by court-martial or otherwise In
time of peace But appellants coun.
sci quote section 1852 of the code
which pertains to the drill, discipline
and uniform OF the national guard,
and say, "by what military code are
the powers and duties to be measured
of an officer in the national guard Of
this state? The respondent comedies
that there are no military regulations
of the state. The legislature having
adopted the rules and articles that
govern the armies of the United States
have therefore said in the most SOL
emn manner that the national guard
OF this state shall be governed by the
same rules and regulations. There
fore if the commanding officer of the
whether in command or not,
should commit misdemeanor or a
felony. he certainty would be tried by
general court-martial under the laws
Of this state.' Right here is, in our
opinion. the basic fallacy in appel.
lant's contention. Counsel wholly mis-
interpret said statute It deals mere.
y with matters relating to drill, dis
,ipline and uniforms, and it merely
adopts the regulations of the army,
articles of war and acts of congress
IS authority and to govern in such
matters in cases not provided by the
avs of the state, etc. The word "dis-
;ipline" as there used means System
II drill =" "systematic training "train. |