State ex rel. Poole v. Nuchols
| Decision Date | 11 February 1909 |
| Citation | 119 N.W. 632,18 N.D. 233 |
| Court | North Dakota Supreme Court |
Application by the State, on the relation of Thomas H. Poole for writ of prohibition against S. L. Nuchols and others.
Writ denied.
Writ denied.
Engerud Holt & Frame, for plaintiffs.
Andrew Miller, Attorney General, and Brigadier General M. A Hildreth, Retired, Judge Advocate, for defendants.
Unconstitutionality of Articles of War is no defense to a charge of disobedience of an order of the commander in chief. Dudley on Military Law, 135; Winthrop on Military Law, Vol. 2, p. 189; Military Laws of the United States, 973 and cases cited.
Conduct unbecoming an officer and gentleman in the 61st Article of War is a proper charge. Carter case, 105 F. 617, 183 U.S. 386.
The commission of or attempt to commit a crime constitutes such conduct. Dudley Military Law, 409, Carter case, 183 U.S. 365; Military Laws of the United States 996; 2 Winthrop's Military Law and Precedents, 1104, 1114, 1115.
The governor as commander in chief has power to order a general court-martial. Sec. 71, 75 Constitution; Secs. 1719, 1764, 1797, Political Code.
Retired officer is subject to the Articles of War. Military Law of U. S. p. 492; Dudley on Military Law, p. 53.
The court has jurisdiction of accused because he is a retired officer of the national guard, and as such is subject to the orders of the commander in chief, and has disobeyed them. Sec. 1764 Political Code; Section 1797 Political Code; Military Laws of U. S. p. 494; Barrett v. Hopkins, 7th F. 312; Houston v. Moore, 5 Wheat. 1; 126 N.Y. 504; 35 So. 729; 55 A. 952; 206 Pa. 165; Smith v. Whitney, 116 U.S. 167; 29 L.Ed. 604; Carter Cases, 183 U.S. 363; 97 F. 496; 99 F. 949; 105 F. 614.
Prohibition will not lie to a general court-martial. 1 Winthrop's Military Laws and Precedents, 53; 116 U.S. 168; United States v. Maney, 61 F. 140.
Where a court-martial has jurisdiction, supreme court cannot interfere. I Winthrop's Military Law and Precedents, 61; 23 F. 879; 100 U.S. 13; 21 F. 620; Dynes v. Hoover, 20 How. 83; People v. Van Allen, 55 N.Y. 36; State v. Stevens, 2 McCord, 38.
Relator makes application to this court for the issuance of a writ of prohibition to enjoin and prohibit defendants, who are members of a court-martial, from further proceeding with the trial of relator upon certain designated charges and specifications, a copy of which was made a part of the application. Elaborate arguments were presented on behalf of relator, and also against his contention, and numerous reasons were urged both in favor of and against the issuance of such writ, but they all relate to the merits, being based upon the apparent assumption, which we deem erroneous, that this court possesses jurisdiction to issue such writ. A majority of the court are agreed that no such jurisdiction has been conferred by the Constitution, and hence the relator's application must be denied. This is not a case, such as has frequently arisen in this state, where the exercise of original jurisdiction is discretionary, and dependent upon whether the subject-matter is publici juris and affects the "sovereignty of the state, its franchises and prerogatives or the liberties of the people;" but it is one in which we are asked to exercise a jurisdiction not conferred at all by the Constitution. It is a case of a total want of jurisdiction. This is clearly apparent by the language employed in the Constitution with reference to the powers conferred upon the Supreme Court. Section 86 provides: "The Supreme Court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law." It is entirely clear from the above language that the chief function of this tribunal is the exercise of appellate jurisdiction only, and incidentally it is given a general superintending control over all inferior courts under such regulations as may be prescribed by law. It is also equally plain that aside from the jurisdiction thus conferred this court has no jurisdiction except such as the next section grants to it. Section 87 is as follows: "It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction and such other original and remedial writs as may be necessary to the proper exercise of its jurisdiction. * * *" These sections constitute a grant of power and are restrictive in their terms. Hence this court possesses such jurisdiction and only such as is either expressly or by necessary implication granted to it by said sections. As stated. "The Supreme Court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only." The only place where it is otherwise provided is in section 87, and it is a significant fact that the writ of prohibition is not one of the writs therein enumerated, which this court has power to issue. It therefore inevitably follows that, if this court has jurisdiction to issue such writ, it must be by virtue of its superintending control over inferior courts as its issuance is not "necessary to the proper exercise of its jurisdiction" within the meaning of such clause in section 87. The writ is not asked for the latter purpose, and the court is not exercising or attempting to exercise any jurisdiction, for the proper exercise of which such writ is necessary.
If authorities are required in support of the foregoing views, we call attention to the following cases in addition to our own decisions: People ex rel, v. Circuit Court of Cook County, 169 Ill. 201, 48 N.E. 717; Wheeler v. N. C. Irr. Co., 9 Colo. 248, 11 P. 103; People v. Richmond, 16 Colo. 274, 26 P. 929. On account of the similarity of the Constitutions of Illinois and Colorado with that of this state relative to the grant of power to the Supreme Court, the foregoing authorities are peculiarly in point. The Illinois court in the foregoing case in an able opinion construed the Constitution of that state, and reached the conclusion that it had no original jurisdiction to issue a writ of prohibition. We quote: "The Constitution is a limitation upon the powers of the Legislature, but it is regarded as a grant of power to the executive and judicial departments of the government. Hence the executive and judiciary can only exercise such powers as are granted by the Constitution. Field v. People, 2 Scam. 79. The constitution only specifies three cases in which this court can exercise original jurisdiction, and the issuance of writs of prohibition is not one of them. Original jurisdiction being thus conferred upon the Supreme Court in certain specified cases, it cannot exercise original jurisdiction in cases not specified. In all other cases than those named its jurisdiction is appellate only. Campbell v. Campbell, 22 Ill. 664. A prohibition is an original remedial writ, as old as the common law itself. Thomas v. Mead, 36 Mo. 232; McConiha v. Guthrie, 21 W.Va. 134; High on Ex. Legal Rem. § 762. It would seem, therefore, to be clear that this court has no original jurisdiction to issue a writ of prohibition. There are cases in many of the states where courts of last resort are held to have original jurisdiction to issue a writ of prohibition. There are cases in many of the states where courts of last resort are held to have original jurisdiction to issue such writs; but it will be found upon examination that in states where such decisions have been made the Constitution of the state in express terms confers either the power to award writs of prohibition, as in Virginia and West Virginia ( James v. Stokes, 77 Va. 225; McConiha v. Guthrie, supra), or the power to award "original remedial writs" as in Missouri (Thomas v. Mead, supra), or the power to issue any remedial writs necessary to give the court of last resort general supervision and control over the inferior courts as in North Carolina (Perry v. Shepherd, 78 N.C. 83).
Is the court-martial such an inferior court as this court has superintending control over within the meaning of section 86 supra? We think not. While treated and often referred to by the authorities as an inferior court of peculiar and limited jurisdiction, it is nowhere held, so far as we have been able in our brief research to discover, that such court, when acting within the limits of its special jurisdiction, is not supreme. This is as it should be. Were it otherwise the military power of the state, which is a branch of the executive department, might be seriously embarrassed, if not completely paralyzed, by the interference of the civil courts in the necessary discipline of its organized forces. To attribute to the framers of the Constitution an intent to give to the civil courts a superintending control over the military courts-martial would be to attribute to them an intent to depart from the well-known, and we believe almost universally recognized, rule to the contrary in this country. See Smith v. Whitney, 116 U.S. 167, 6 S.Ct. 570, 29 L.Ed. 601, and cases cited, where it was said: "And this court, although the question of issuing a writ of prohibition to a court-martial has not come before it for direct adjudication, has repeatedly recognized the general rule that the acts of a court-martial within the scope of its jurisdiction and duty cannot be controlled or reviewed in the civil courts by writ of prohibition or otherwise"...
To continue reading
Request your trial