135 N.W. 197 | N.D. | 1912
Lead Opinion
While fully realizing that we are in no manner responsible either 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 view of the court is not a pleasant one, owing to the nature of the litigation, and more especially in view of the fact that our conclusion does not coincide with the views entertained by the chief executive of the state, as well as by prominent officers of the National Guard who were instrumental in instituting and prosecuting the proceeding before the general court-martial, hereafter mentioned, out of which proceeding this litigation arose. Although the views of these high officials of a co-ordinate branch of the state government are entitled in case of doubt to much respect and weight relative to the extent 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 manifestly 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 a full understanding of the questions involved
This cause comes to this court on appeal from a judgment of the ■district court of the sixth judicial district,. entered on the 8th day of ■January, 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 12th day of January, 1909. He was found guilty of having violated both the 21st and the 61st Articles of War, and sentenced by the court “to be dismissed from the service of the National Guard of the state of North Dakota.” This sentence was approved by the governor of the state. On the 7th day of August, 1909, on application of respondent a writ of certiorari was issued, directed to Amasa P. Peake, as adjutant General of the state, requiring him to certify and transmit to the district court of the sixth judicial district a true and full record of all the proceedings of said general court-martial and the orders of the governor, and praying that all the said proceedings be declared null and void, •and that the respondent he restored to his rank of a brigadier general (retired) in the North Dakota National Guard. The court made findings and an order for judgment, which adjudged and determined that '“the order made and issued by Honorable John Burke, as governor and ■commander-in-chief of the National Guard of the state of North Dakota, on the 12th day of January, 1909, directing and ordering that a .general court-martial be convened to hear and try certain charges and specifications against the relator, Thomas H. Poole, be and the same is hereby held to be null and void and without jurisdiction. And said ■court-martial convened and held pursuant to said order, and all its proceedings and acts, sentence, and judgment are hereby set aside and •annulled; and it is further adjudged, determined, and decreed that the order of the Honorable John Burke, as governor and commander-in-chief, made March 1, 1909, approving the proceedings, findings, sentence, and judgment of said court-martial, and purporting to remove and •discharge said Thomas H. Poole from the organized militia of this state, and depriving him of his rank as brigadier general on the retired list, is hereby declared null and void, and of no effect.”
In the second place, conceding for the sake of argument, that they are properly before us, such motion to quash did not raise such question. • The grounds of the motion are in substance as follows :
1. It appears on the face of said writ that the general court-martial complained of was legally assembled, organized, and constituted.
2. That said Thomas H. Poole was at the time- a member of the National Guard of the state of North Dakota.
3. That said court-martial had jurisdiction over the person of Thomas H.- Poole.
4. That said court-martial had jurisdiction over the subject-matter.
5. That said court-martial, acting within its jurisdiction, rendered' judgment finding the defendant guilty as charged in the specifications.
6. That his excellency, the governor, as commander-in-chief of the National Guard, approved said judgment, and
7. That this court is without jurisdiction to inquire into, review,, or question the proceedings of said court-martial or the orders of the governor and commander-in-chief in relation thereto.
It is therefore clearly apparent from the above that no question as to the correctness of the remedy invoked was made in the conrt below, as each ground of the motion went to the merits, and consequently appellant is not in a position to raise such question for the first time in this court. But if we could brush aside these well-settled rules of practice we would nevertheless be obliged to overrule appellant’s contention, for it is entirely clear that certiorari is an. appropriate writ to review the proceedings of such court-martial for the purpose of de
This brings us to the merits, which involve the question whether the general court-martial had any jurisdiction to try the relator for the alleged offenses charged against him, and render its judgment and sentence dismissing him from the National Guard. If this question must be.answered in the negative, it, of course, necessarily follows that such judgment, as well as the order made March 1, 1909, by the Gov
We will now notice some of the principal contentions of the respective parties. They are widely and radically at variance and involve numerous propositions of law, but we shall consider only those which we deem controlling and decisive of the appeal. Relator’s chief contention is that he was not amenable to a 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 constitutional guaranty found in § 8 of the state Constitution, and also in the 5th Amendment to the Federal Constitution. Section 8 reads: “Until otherwise provided by law, no person shall, for a felony, be proceeded against criminally, otherwise than by indictment, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger. . . .” He asserts that said sections clearly forbid prosecutions of militiamen for felonies by court-martial, except when such militiamen are in actual service in time of war or public danger, and that the charge on which he was thus convicted are felonies. Also that at the time of such trial and conviction there was no law in this state authorizing a court-martial for the trial of a person charged with any crime; that the Articles of War do not govern the militiamen except while in actual service.
It is needless to detail appellant’s contentions. They are squarely opposed to those of the relator. We are compelled to uphold relator’s contentions, and will proceed to point out what we deem to be the basic fallacy in appellant’s argument. His counsel apparently wholly ignore the radical and fundamental distinctions between the militia of the state and the regular 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 well as in the statutes. Neither of such Constitutions forbid prosecutions for felonies otherwise than by presentment or indictment 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 mitilia,
As we understand the position of appellant’s counsel, it is that the-Articles 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 alleged violations of the Articles of War. It is perfectly manifest to our minds that such proceedings were a nullity for the obvious reason that our legislature 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 chapter 21, Political Code 1905, expressly provided that “the Militia while in active service shall be-governed by the military law of the state, and the rules and Articles of War of the United States” (§ 1717), 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 punishable by court-
In many of the states the legislatures have seen fit to provide for the enforcement of discipline in the organized Militia by fine and imprisonment imposed by courts-martial for infractions of rules and regulations, even in times of peace. The right so to do is undoubted, but it was not exercised in this state until the new Military Code of 1909 was adopted. See in this connection 27 Cyc. 496, from which we quote: “The laws of nearly all the states have been revised with a view of conforming the organization and discipline of the organized Militia to that of the regular Army, and violations of military laws or regulations are now generally dealt with by military courts within the scope of their jurisdiction as defined by the state laws.”. Citing State ex rel. Madigan v. Wagener, 74 Minn. 518, 42 L.R.A. 749, 73 Am. St. Sep. 369, 77 N. W. 424. The case of State ex rel. Madigan v. Wagener, supra, seems to be a leading authority, and we commend the opinion of Judge Mitchell as a clear and sound statement of the law. The opinion recognizes the right of the state legislature, within constitutional restrictions, to provide certain rules and regulations for the government of the organized Militia, and, as disciplinary measures, to au
It goes without saying that courts-martial are courts of special and limited jurisdiction, and that they possess no powers not expressly conferred on them. 27 Cyc. 498; 22 Ops. Atty. Gen. 137; Dynes v. Hoover, 20 How. 65, 15 L. ed. 838; Deming v. McClaughry, 51 C. C. A. 349, 113 Ned. 639.
That the terms “actual service” and “active service,” as used in the Constitution and Military Code, mean service in time of war or public danger, etc., is clear. It is likewise clear that the words “when in actual service in time of war or public danger,” in § 8 of our Constitution, apply to the Militia only. Johnson v. Sayre, 158 U S. 109, 39 L. ed. 914, 15 Sup. Ct. Rep. 773. That the words “actual service” and “active service” are used in such restrictive sense in our Military Code is entirely clear from a reading of §§ 1716, 1761, 1762, 1774. See also State v. Josephson, 120 La. 433, 45 So. 381, and Bryant v. Brown, 98 Ky. 211, 32 S. W. 741. It must necessarily follow, therefore, that, being in time of peace, the Articles of War in no manner governed the militiamen, and consequently Brigadier General Poole (retired) could not be tried for alleged violations thereof.
Entertaining the above views, it becomes unnecessary to notice the other points in controversy. We conclude, therefore, that the judgment appealed from, in so far as it adjudges that the orders therein enumerated, as well as the acts and judgment of such court-martial, are null and void, must be affirmed.
Concurrence Opinion
I concur fully in the opinion of my associate covered by paragraph 1 of the syllabus; and while I concur, in the opinion that the court-martial in question was without jurisdiction, I reach my conclusion by a method differing from that pursued by my associates, and cannot concur in all that is said in the majority opinion.
I prefer to confine my conclusions as to the jurisdiction of the court-martial to the case before us, tm., its jurisdiction over a retired officer not on duty of any kind. The relator has been retired by operation of law, under provisions of the Code of this state. A retired officer of our Militia bears a relation to the organized Militia differing ma
Relator was not on any hind of duty, and the decision need go no farther than to cover the case of such an officer. I rest my concurrence on the ground that an officer retired by operation of law is not subject to be tried by court-martial when not on duty under detail by order of the governor. I express no opinion farther than this.
Rehearing
On Petition for Rehearing.
We have carefully considered the petition for a rehearing filed by appellant, and find nothing therein to cause us to change our views as above expressed.
In denying such petition we deem it advisable to briefly notice some of the principal contentions made in such petition. It is manifest that appellant’s counsel are laboring under a misapprehension regarding the court’s holding, for they start the petition with the following assertion: “The decision of the court proceeds upon the theory that the Militia of a state can only be subject to trial by court-martial when they are in the actual service of state or nation.” This is very far from the fact, for the exact contrary is true. We held that the Articles of War do not govern the state Militia in times of peace, for the legislature has not thus ordained, and consequently the officers and members of such Militia are not subject to court-martial in time of peace for alleged violations of such Articles of War. But we distinctly said that the power of the legislature to provide for the enforcement of discipline in the organized Militia by fine and imprisonment imposed by courts-martial for infractions of rules and regulations, even in times of peace, is undoubted.
Counsel in their petition again call our attention to §§ 188 to 193 of our state Constitution, and insist that we have overlooked the same. In this they are again .mistaken. There is no room for doubt that
Our attention is called in the petition to the fact that in three instances during statehood, prosecutions by court-martial have taken place in this state; but this fact is in no manner controlling, nor does it operate in the least to change our views of the law as above expressed.
Counsel evidently do not understand the decision in State ex rel. Poole v. Nuchols, for they criticize the special concurring opinion of the chief justice in the case at bar, and assert that it is contrary to the holding in that case. In this counsel are grievously in error. We did not
The petition is denied.