On Petition for Rehearing.
Risk, J.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 *468“all able-bodied male persons residing in the state, between the ages of eighteen and forty five years,”. with certain exceptions, constitute the Militia of the state; nor is there any room for doubt that the organized Militia or National Guard constitutes the “Active Militia.” But the terms “Active Militia,” and “the Militia when in actual service in time of war or public danger,” are entirely distinct and of different meaning, and the basic fallacy in counsel’s contention apparent is their failure to distinguish the difference between these terms. Section 8 of our Constitution, which provides that no person shall for a felony be proceeded against criminally otherwise than by indictment, does not except from its provisions the active Militia in time of peace, but it excepts “the Militia when in actual service in time of war or public danger.” No doubt the framers of the Constitution contemplated that the legislature would prescribe rules and regulations for the government of the organized or active Militia in time of peace as well as when called into active service for the state in time of public danger, etc., for § 192 clearly contemplates that there may be trials by courts-martial, but it is perfectly manifest that until such time as the legislature has made provisions therefor no such trials could be had. Our attention is called to § 1753, Rev. Codes, which makes certain acts a misdemeanor, and concludes with the statement, “And upon conviction shall be fined in a sum not less than $50 nor more than $100, or may be cashiered.” This section is somewhat vague, but conceding all that is claimed for it by appellant’s counsel, the most that can be said is that in cases falling within the provisions of said section, members of the Militia may be court-martialed; but this does not aid appellant in this case, for respondent is not charged with a violation of said section, but is, as we have seen, charged with a violation of the 21st and 61st Articles of War.
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 *469hold in the Nuehols Case that the court-maitial had jurisdiction, but we held merely that no power has been conferred by the Constitution on the supreme court to issue the writ of prohibition in a case like that, and that the relators therein should seek relief, if at all, in the proper court. See opinion in 18 N. D. 233, 20 L.R.A. (N.S.) 413, 119 N. W. 632.
The petition is denied.