State ex rel. Madigan v. Wagener

MITCHELL, J. 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. [522] 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 order the relator appealed. It is, of course, elementary that the only questions which can be reviewed on the writ of habeas corpus are whether the court-martial had jurisdiction of the relator, and whether the sentence was one which the court, under the law, could pronounce. Dynes v. Hoover, 20 How. 65. 1. It is undisputed that-the proceedings of the court-martial were in all respects in accordance with the provisions of the “Military Code”; but the points raised by the relator are (1) that it does not appear from the record that he was a duly-enlisted member of the national guard of the state of Minnesota, so as to render him subject to the jurisdiction of a court-martial; and (2) that the provisions of the Military Code are in violation of sections 2, 4, 6, 7, 8,12' and 14 of the bill of rights of the constitution of the state, and of section 10 of article 1 of the federal constitution. All we deem necessary to say upon the first point is that, in our opinion, the evidence was plenary that the relator was a duly-enlisted member of the state national guard. 2. Under our Military Code, the active militia or national guard is organized and enrolled for discipline, and not for military service, except in times of insurrection, invasion and riot. The men comprising it come from the body of the militia of the state, and, when not engaged at stated periods in drilling or training for military duty, they return to their usual vocations, subject to call when public exigencies require it, but may not be kept in service, like stand [523] ing armies, in times of peace. While enrolled as soldiers of the state for the purposes aforesaid, they are neither “troops,” within the meaning of section 10 of article 1 of the federal constitution, nor a “standing army,” within the meaning of section 14 of the bill of rights in the state constitution. Dunne v. People, 94 Ill. 120. But the main reliance of relator’s counsel is upon sections 4 and 7 of the bill of rights, the first of which provides that “The right of trial by jury shall remain inviolate,” and the second, that “no person shall be held to answer for a criminal offense unless on the presentment or indictment of a grand jury, except in cases of impeachment, or in cases cognizable by justices of the peace, or arising in the army or navy, or in the militia when in actul service in time of war or public danger.” The contention is that a trial by a court-martial in time of peace, \ resulting in fine or imprisonment, as authorized by the Military Code, is an invasion of the constitutional rights of the citizen, and especially that it deprives him of the right of trial by jury, contrary to the provisions of section 4, and requires him to answer to a criminal offense in a manner which is in contravention of section 7 of the bill of rights. All that is necessary to be said as to the right of ^ trial by jury is that the constitution simply preserves it in cases where it existed previous to its adoption. Courts-martial existed long before the adoption of the constitution, and their existence is impliedly recognized in our own and the constitution of most of the states. Nixon v. Reeves, 65 Minn. 159, 67 N. W. 989. They are an executive agency, and belong to the executive, and not the judicial, branch of the government. Winthrop, Mil. Law, 52, 53. The course of their proceedings has always been without a jury, save so far as the members of the court perform the functions of both court and jury. Hence it is no objection that, under the Military Code, such courts have no jury, and do not conform their proceedings to those in the ordinary courts of justice. But so far, however, as the constitution imposes any limitations upon the powers of courts-martial, they must be strictly observed; and, as suggested by the learned trial judge, section 7 of the bill of rights may contain some such limitations, but we are satisfied that it contains none which at all affect this case. This section should be read and construed [524] in connection with article 12 of the constitution, which provides that “it shall be the duty of the legislature to pass such laws for the organization, discipline and service of the militia of the state as may be deemed necessary.” In our opinion, the fundamental error in the argument of counsel for relator is in assuming that the charges upon which his client is held are criminal offenses, within the meaning of section 7. They are not offenses under any general law of the state, or any municipal ordinance applicable to the public generally, and hence not criminal offenses, even as defined in State v. West, 42 Minn. 147, 43 N. W. 845. The acts of omission with which the relator was charged were merely violations of military discipline, under the provisions of the Military Code. The rules and regulations of that code do not affect the public generally, but are confined in their application to the national guard or active militia, and are merely designed to secure a higher efficiency in the,military service; in other words, they are purely disciplinary in their nature, and have exclusive regard to the special character and relation of the accused, as a member of the active militia of the state. Laws providing for the discipline as well as the organization of the militia of the state are constitutional requirements; and section 7 of the bill of rights is not to be so lightly construed, as to impair, if not annul, these mandatory provisions. Training and drill are essential to the efficiency of the militia for military service in case their services should ever be required; and if, as counsel claims, all the executive branch of the government •can do to enforce discipline is to discharge dishonorably those who violate military rules and regulations, then all a member of the active militia has to do to relieve- himself from his contract of enlistment is to violate it. As is well said by the trial judge: “Deprive the executive branch of the government of the power to enforce proper military regulations by fine and imprisonment, and that, too, by its own courts-martial, which from time immemorial have exercised this right, and we at once paralyze all efforts to secure proper discipline in the military service, and have little left but a voluntary organization, without cohesive force.” We think that the constitution of every state in the Union has [525] always contained provisions the same or similar to those contained in our bill of rights. In many, if not most, of the states, they have enacted military codes providing for the enforcement of discipline in their organized or active militia by fine and imprisonment, imposed by courts-martial, even in times of peace. The only exception we have in mind is the state of Missouri, where the power of courts-martial in times of peace is expressly limited to discharging the accused from service. The proceedings of these courts have been frequently assailed, on various grounds, in the civil courts; but, so far as we are advised, in but one other case (People v. Daniell, 50 N. Y. 274) did it ever occur to any one to question the constitutionality of a statute authorizing courts-martial, as a disciplinary measure, to impose fines and imprisonment for violation of military rules and regulations; and, in the case referred to, the point raised was very emphatically overruled. • It is unnecessary at this time to consider what are the limitations upon the nature and extent of the penalty which such courts can impose, but it is very clear that in this case the court did not exceed them. Judgment affirmed.