State ex rel. Madigan v. Wagener
| Decision Date | 16 December 1898 |
| Docket Number | 11,251 - (105) |
| Parties | STATE ex rel. FRED I. MADIGAN v. JOHN WAGENER |
| Court | Minnesota Supreme Court |
Habeas corpus. The facts are given in the opinion. From an order of the district court for Ramsey county, Otis, J., denying relator's petition and remanding him to the custody of the sheriff, he appealed. Affirmed.
National Guard neither "Troops" nor "Standing Army" under the Constitutions.
The national guard or active militia of the state, organized under the Military Code (Laws 1897, c. 118), the members of which, when not engaged, at stated periods, in drilling and training for military duty, are employed in their usual civil vocations, subject to call for military service when public exigencies require, are neither "troops," within the meaning of article 1, § 10, of the federal constitution, nor a "standing army," within the meaning of section 14 of the bill of rights of the state constitution.
National Guard neither "Troops" nor "Standing Army" under the Constitutions -- Military Code -- Trial by Court-Martial in Time of Peace not Unconstitutional.
The rules and regulations of the Military Code are merely disciplinary in their nature, designed to secure higher efficiency in the military service, and a violation of them does not constitute a "criminal offense," within the meaning of section 7 of the bill of rights. The provisions of the Code authorizing the trial, in times of peace, of members of the national guard by a court-martial for a violation of these rules and regulations, and their punishment, if found guilty, by a limited fine, or a limited imprisonment in case the fine is not paid, are not unconstitutional.
William Louis Kelly, Jr., for appellant.
A court-martial is a court of special and limited jurisdiction. The facts necessary to show its jurisdiction, and that its sentence is conformable to law, must be stated or appear positively, and not be left to be inferred. Runkle v U.S., 122 U.S. 543; In re Grimley, 137 U.S. 147. Guaranty in the constitution of trial by jury was intended for a state of war, as well as a state of peace, but cases arising in the land or naval forces, or militia, in time of war or public danger, are excepted from necessity of presentment, indictment or trial by jury. Ex parte Milligan, 4 Wall. 3. The right of trial by jury is preserved to everyone accused of crime, who is not attached to the army or navy, or militia in actual service. Callan v. Wilson, 127 U.S. 540. To serve out the fine and expenses of a court-martial, is imprisonment for debt. See State v. Brannor, 34 La. An. 942; In re Mitchell, 39 F. 386; Thompson v. State, 16 Ind. 516; State v. Farley, 8 Blackf. 229; Deimel v. Arnold, 34 U.S. App. 177.
George C. Lambert, for respondent.
Everyone connected with the military or naval branches of the public service is amenable to the jurisdiction which congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts. Ex parte Milligan, 4 Wall. 2, 123; In re Grimley, 137 U.S. 147; In re Davison, 21 F. 618; McCall's Case, Fed. Cas. No. 8,669.
The modern national guard is the state "army," or land or military force, referred to in the bill of rights of every state constitution. See People v. Daniell, 50 N.Y. 274. The state authorities have absolutely no jurisdiction over the army of the United States, and it has been decided by the supreme court of the United States that, on habeas corpus, they could not even rescue a civilian held by the officers of the federal army. Ableman v. Booth, 21 How. 506; Tarble's Case, 13 Wall. 397. It is true that a civil offense, committed by a soldier and cognizable by the civil courts, may also be prejudicial to military discipline, and as such be punishable by court-martial, but there is no clash of jurisdiction occasioned thereby, and conviction or acquittal in one court is no bar to a trial in the other. U.S. v. Maney, 61 F. 140.
Courts-martial are ancient institutions antedating the constitution, and their existence is impliedly recognized in our own constitution and in that of most states: People v. Daniell, supra; Nixon v. Reeves, 65 Minn. 159; 1 Winthrop, Mil. Law, 48; 15 Am. & Eng. Enc. (1st Ed.) 455. They are executive agencies and belong to the executive, and therefore are not affected by the third article of the constitution of the United States or by the sixth article of the constitution of Minnesota. Dynes v. Hoover, 20 How. 65, 79; Trask v. Payne, 43 Barb. 569; 6 Op. Attys. Gen. 425; Ex parte Mason, 105 U.S. 696; People v. Daniell, supra; Runkle v. U.S., 19 Ct. Cl. 396. Their judgments, when approved by competent authority, are conclusive and cannot be reviewed by any civil court. Dynes v. Hoover, supra; Ex parte Reed, 100 U.S. 13; Moore v. Houston, 3 S. & R. (Pa.) 167; Ex parte Bright, 1 Utah 145; State v. Stevens, 2 McCord (S.C.) 32; Warden v. Bailey, 4 Taunt. 67, 76; In re Bogart, 2 Sawy. 396; People v. Van Allen, 55 N.Y. 31, 36; Ex parte Vallandigham, 1 Wall. 243; In re McVey, 23 F. 878; Wales v. Whitney, 114 U.S. 564; Washburn v. Phillips, 2 Metc. (Mass.) 296; Ex parte Mason, supra; Keyes v. U.S., 109 U.S. 336; In re Esmond, 5 Mackey (D.C.) 64; Johnson v. Sayre, 158 U.S. 109.
But their jurisdiction is special, and limited to particular offenders and offenses, and to those only. Mills v. Martin, 19 Johns. 7; Brooks v. Adams, 11 Pick. 441; In re Wright, 34 How. Pr. 207; Ex parte Milligan, 4 Wall. 2, 123; Brooks v. Daniels, 22 Pick. 498; Runkle v. U.S., supra; Wise v. Withers, 3 Cranch, 330; Ex parte Watkins, 3 Pet. 193; State v. Rogers, 37 Mo. 367; Ex parte Henderson, Fed. Cas. No. 6,349. Civil courts may ascertain whether they have jurisdiction of the offenders and of the offense. Johnson v. Sayre, supra; 15 Am. & Eng. Enc. (1st Ed.) 457; In re Grimley, supra; Dynes v. Hoover, supra.
The constitutional guaranty of trial by jury preserves that common-law right, in substance, as it existed at the time of the adoption of the constitution, and does not extend to that class of cases in which it was not allowed at common law. 6 Am. & Eng. Enc. (2d Ed.) 974, note 6; 978, notes 1 and 3; Proffat, Jur. § 84; 1 Dillon, Mun. Corp. (3d Ed.) § 428 (358); People v. Daniell, supra; Byers v. Com., 42 Pa. St. 89; State v. Danforth, 3 Conn. 112; Waldo v. Spencer, 4 Conn. 71; Goddard v. State, 12 Conn. 448; State v. Oleson, 26 Minn. 507; State v. Lee, 29 Minn. 445; City of Mankato v. Arnold, 36 Minn. 62; State v. West, 42 Minn. 147; State v. Harris, 50 Minn. 128; G.S. 1894, § 6849. On the trial of a soldier it is not necessary to produce the enlistment paper, or prove the formal enlistment of the soldier. It is sufficient to show that the soldier has received pay or performed service as such. 3 Greenleaf, Ev. § 483; Lebanon v. Heath, 47 N.H. 353, 359; O'Brien, Mil. Law, 171; Ex parte Anderson, 16 Iowa 595; Dig. Op. Judges Advocate Gen. 384.
The constitutional exemption from imprisonment for debt relates to debts or obligations arising ex contractu, and not from claims arising ex delicto. 10 Am. & Eng. Enc. (1st Ed.) 215, notes 3 and 4; State v. Becht, 23 Minn. 1; Ex parte Sweeney, 18 Nev. 74; U.S. v. Conway, 6 F. 49. Nor do the costs arising in a criminal proceeding, and imposed upon a defendant found guilty, constitute such a debt. 10 Am. & Eng. Enc. (1st Ed.) 219, and cases cited in note 2. Nor are statutes prescribing the rate at which such imprisonment shall serve to discharge the fine inconsistent with its constitutional prohibition. In re Beall, 26 Oh. St. 195; 17 Am. & Eng. Enc. (1st Ed.) 256, and note 1; 21 Id. 1077, and notes 2, 3, 4, 5 and 8; 7 Id. 992, note. The case of Thompson v. State, 16 Ind. 516, cited by appellant to the contrary of the above, has been overruled in McCool v. State, 23 Ind. 127. See also State v. Peterson, 38 Minn. 143; State v. Olson, 38 Minn. 150; State v. Sannerud, 38 Minn. 229.
The relator, alleged to be an enlisted private in the active militia or national guard of the state of Minnesota, was, pursuant to the provisions of the "Military Code" (Laws 1897, c. 118), arraigned before the regimental court-martial, upon the charges of "absence without leave from regular company drill," in violation of section 27, and "wilful disobedience of orders," in violation of section 26, of the Code. His trial resulted in his being found guilty of the charges, and sentenced to pay a fine of $10 and costs of prosecution, taxed by the court-martial at $25, and, in default of payment thereof, to be imprisoned in the jail of Ramsey county for 12 days. This sentence was duly approved by the convening authority, and notice thereof served on the relator. He having failed to pay the fine and costs within five days, a warrant of committal was duly issued, under section 59 of the Code, and delivered to the respondent, sheriff of Ramsey county, who thereunder took the relator into custody, and imprisoned him in the county jail.
Upon the petition of the relator, a writ of habeas corpus was issued out of the district court, directed to the sheriff, who, in obedience to the writ, produced the relator in court, and returned that he held him by virtue of the warrant of commitment issued by the regimental court-martial. At the time of the allowance of the writ of habeas corpus and in aid thereof, a writ of certiorari was issued to the proper officer of the court-martial, who, in obedience to the writ, produced a full record of the proceedings had and taken therein, upon which the warrant of commitment was issued. The district court denied the relator's petition for his discharge, and remanded him to the custody of the sheriff, to serve out the sentence imposed upon him by the court-martial; and from this...
To continue reading
Request your trial