Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-01-08
POOLE; REINSIATED
in NATIONAL GUARD
SUPREME COURT HANDS DOWN
DECISION IN NOTED Mill.
TARY CASE.
Tribunal Holds Court-MartiaI and o.
ficers Thereof Exceeded Their Au-
tk1ority and Powers.

The supreme court has handed
down it's decision in the Poole court
martial case, and Poole is sustained
by the court, and it is held that the
articles of war of the United States
do not govern the militia or national
guard of the state in times Of peoce.
Therefore the Judgment of the court
in the case of Brigadier General
Poole, retired, is null and void be-
cause of excess Of jurisdiction. When
Poole's term of Office as adjutant gen.
eral expired at the end Of the first BIZ
ennial period, Governor Burke ap-
pointed Amasa p. Peake as Poole's
successor, but Poole held there could
be no vacancy in his office unless ef-
fected by death or resignation and he
refused to give possession of the rec
ords He was contaminated on the
charge of violating an article Of war
Of the United States, and dismissed
from the national guard of the state.
The Judgment and sentence Of the
court-martial was approved by Gov
ernor Burke, commaneder-in-chief OF
the militia. Poole appealed to the
district court of Burleigh county for
the purpose of determining whether
or not the court.martial had exceeded
it's jurisdiction, and he received a ia
vorable decision from Judge Winches-
ter. The case was then appealed to
the supreme court by Peake. who was
then adjutant general, which resulted
in another victory for Poole, which
also gives him the rights of the ma
tional guard and gives him the retir-
ing rank of brigadier general. The
syllabus as handed down is as fol-
lows :
In the Supreme Court, State of
North Dakota. April Term, 1911.
The State of North Dakota, ex rel,
Thomas H. Poole,
Respondent
Amasa P. Peake. as Adjutant Gen.
eral of the State Of North Da'
kota, APPELLANT
Relator, Thos. H. Poole. as Briga'
der General (retired) of the Nation
y, Guard If this state, was tried and
convicted BY a general court'martial
Of certain alleged felonies claimed
to have been 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 Ma
tional Guard. were approved by the
Governor and Commander-in'Chief Of
the Milltia. by the issuance Of an or
der accordingly. Relator sued out
writ of certiorari in the district cour
of Burleigh county for the purpose O
obtaining review Of such judgmen
and order. This appeal is from tn
Judgment of that court holding tn
iudgment and order aforesaid null
! and void as being without and in ex
cess of jurisdiction.
HELD:
That certiorari in rrope
remedy to review the proceedings o
court-martial for the purpose of de
termining whether it exceeded 1T
| jurisdiction. o..
2. The Articles of War of tn
United States do not govern the mi
litia or National Guard of this stat
IN times of Peace. and consequent!
relator was not amenable to genera
court-martial for the alleged viola
lions of such Articles of War. Hence
the district court properly held tina
the Judgment of such court-martfa
and the order Of the governor ant
commander.in-chief approving tht
same, were null and void because II
excess of jurisdiction.
(Syllabus by the court)
Appeal from district court, Bur
leigh county; Winchester, J.
Certiorari to review the proceed
ings of a general court-martial.
From a Judgment in REALTORS ia
vor, defendant appeals.
Andrew Miller, Attorney General
Melvin A. Hildreth Brigadier Gener
al. National Guard (retired) Judge
Advocate, for appellant.
Engerud, Holt & Frame, for re-
spondent -.
Opinion by Fisk, j., Spalding, G
J. ccncurring specially.
Wireless telegraphy clearly ex
planned and demonstrated at Presby-
AH@r11.. Hi0hf