
    In the matter of the contested election of Brigadier General of the 8th Brigade, So. Ca. Militia.
    There is no appeal to the Commander-in-Chief, from the decision of a “Board of Officers” ordered by the Major General to try a contested election, after it has been approved by him. Such a Board is not a Court Martial. It meets merely to try a question of right, and its decision can affect neither the rank nor commission of an officer.
    A writ of certiorari does not lie to a military tribunal. 1 Jac. Law Die., 412.
    Tried before Mr. Justice O’Ne all, January, 1847.
    His Honor reports.
    From the returns of the election for Brigadier General of the 8th Brigade, it appeared that Col. James M. Commander, had a majority of thirty votes over his opponent, Col. N. G. Rich. The election was contested by Col. Rich, on the ground, among others, that fifty-nine votes were illegal. A board of officers was ordered by Maj. Gen. Harlee, according to law, to try the protest. They found the protestant’s allegation to be true, and recommended a new election. Forty-eight of the votes so condemned were given under the 14th sec. of the Actof’41, (Militia Laws, 7,) and were supposed to be illegal, on account of some departures from it. It provides as follows: “in all elections for Major General, or Brigadier General, any officer entitled to vote, may send his vote in writing, signed with his name, rank and title, under such a cover addressed to the officers holding such election for the regiment to which he belongs.” The votes objected to, were, “for Brigadier General, 8th Brigade, James M. Commander,” inclosed in a sealed envelope, addressed to the officers holding the election, within which was written: “Gentlemen, inclosed you have my vote for Col. James M. Commander, for Brigadier General, 8th Brigade, S. C. M.,” signed with the name, rank, and title of the officer voting.
    Gen. Harlee, doubting the correctness of this decision, withheld his approbation, re-convened the board of officers, and submitted to them his reasons for questioning the correctness of their decision. They adhered to their decision, and he then approved of it, and ordered a new election. Col. Commander, supposing himself to be clearly entitled to the commission thus denied to him, appealed to the commander-in-chief for redress. He declined to interfere. Application is now made to this Court for redress, by either the writ of mandamus to General Harlee, commanding him to issue the commission of Brigadier General „ to Col. Commander, or the writ of prohibition to prevent the second election, or the writ of certio-rari to compel the Board of officers to certify their proceedings to this Court.
    The two last writs, claimed, cannot by any possibility, it seems to me, be grantable to the relator. The writ of prohibition is alone to prevent an assumption of illegal jurisdiction, or an excess of a legal jurisdiction. In this case, the board of officers or the Major General, had proper jurisdiction of this matter, and though one or both of them may have been mistaken in their conclusions, yet there is nothing like an excess of jurisdiction. I agree with Lord Loughborough, in Grant v. Garold, 2d Henry Black. 100, that military tribunals are liable to the power of the Court of Law, to prevent their illegal assumption of jurisdiction, or their excess of it. But, as was ruled, in that case, by the Court of king’s Bench, I hold that the writ of prohibition will not lie to correct an unjust judgment, or sentence made in a matter of which the military Court has legal cognizance. Nor do I think the writ of certiorari can be granted. The board of officers has performed its functions, and is dissolved. The writ can hardly be addressed to the Major General; indeed I do not think that the writ of certiorari can ever issue to a military tribunal. The only question in the case is upon the writ of mandamus, and I confess if I thought I could look behind the decision of the board of officers and the approval of the Major General, I would not hesitate in awarding to the pfotestant the writ of mandamus, to compel the Major General to issue to lnm the commission. For in the first place, it seems to me clear, that the Court has the general power to award a mandamus to a militia officer to compel him to commission an officer elect, whose commission he illegally withholds. Buller, N. P., 199: 200 et sequentis. The general test is, “when the officer has no other remedy,” and here certainly he has none other.
    I also agree fully with the Major General, that the votes decided to be illegal were legal, being a substantial compliance with the provisions of the 14th sec. of the Act of ’41. For it is a wrong construction, which, like that condemned by the great sage of the law, is so libe ral as to congtrue words against the plain, general sense and meaning. Every thing required by the law is found in the envelope, and that was just as good a vote as could be required. If the persons conducting the election found the person sending his vote had complied with the law, they might, for greater convenience, put in the box the slip inclosed, and keep the envelope to show that it was the true vote. The slip and envelope, however, may be all put together now, and they are just such a vote as the act requires. This mode of voting grew out of the election of Brigadier and Major Generals, prior to 1815, by the field officers, and 1 am satisfied, so long as I was connected with the militia (fourteen years) was uniformly pursued, in a way to the full as lax, if not more so, than that now adopted. I should be disposed to think that the Major General, believing as he did, that the votes were legal, might very properly have disapproved the finding of the .Board, and commissioned Col. Commander. For the 13th sec. of the Act of 1841, {Militia Laws, p. 6,) speaking of the election of Brigadier General, directs that the Major General, or officer commanding the division, shall pronounce the person having the greatest number of votes to be duly elected, and issue a commission accordingly; but if the election be contested, it shall be tried by a board of officers appointed by the Major General, or officer commanding the division to which such brigade shall belong, to consist of a Brigadier General and four other officers not under the rank of field officers, whose decision, when approved, by the officer ordering the board, shall he conclusive, who shall order another election, or shall commission the person duly elected, according to the decision and approval aforesaid.” It is plain, until the decision of the board of officers be approved, it can have no effect. If the Major General had disapproved the decision of the board of officers, ordered by him to examine the contested election, it would have been as if no such decision had been made; and he might have considered himself as then left, by law, to decide the whole matter; and this, I think, was the true view. But there is no doubt the course he did pursue was according to the dictates of an honest and enlightened judgment, and may have been the wiser one. There is no doubt he might delay his approval, and seek any advice, either through the board of officers or the State’s military advisers, before he decided. The re-assemblage of the board, and the reasons of the Major General for doubting the correctness of their decision, were no disapproval. After the Court adjourned, he approved their original decision; and the question now is, has the protestant any remedy? It seems to me, and I say so most reluctantly, the decision of the board of officers, and the approval of the Major General, are in the words of the 13 th sec. of the Act of 1841, ‘•conclusive.” The case of the State ex relatione Neely v, Watkins, 1 Rich., 42, is an authority full to this point.
    The motion for the various writs claimed was denied.
    Col. Commander appealed from the decision, on the following grounds:
    1st. That he was entitled to a writ of mandamus to Gen. Ilarlee, to grant his demand for a Commission, which was made after the decision of the Court, when the Major General refused to approve the decision.
    2d. Because, after their first decision, the board of officers was functus officio, and could not be re-assembled, and so the protest was not effectual, and the Major General was bound either to approve or commission the officer elect.
    3d. If the Major General had the power to convene the same as a new board, then as the decision affected the commission of an officer, Colonel Commander had a right of appeal to the Governor, and on his refusal a mandamus lies to compel him to hear the appeal.
    4th. Because, there being an admitted wrong, the injured party has some remedy, and a certiorari to a Military Court deciding not on criminal offences, but a right to office, which is a species of property, a certiorari to correct error in law should be awarded.
    Hunt, for the motion.
    These writs are moved for:
    1st. A mandamus, to compel Gen. Ilarlee to deliver to Col. Commander his commission, as of the time that he declined to approve the first decision.
    2d. A mandamus, to require the Governor to hear the appeal under the 89th sec. of the Act of 1841.
    3d. A writ of quo warranto, on the Governor, that the second convention of the Court was illegal.
    4th. A certiorari, to bring up the record to the Court of Sessions to correct error of law.
    This case presents no difficulty as to the law; the Circuit Court, and every body else but this board, all concur that the votes were legal, and that Col. Commander is entitled"to his commission, and gives rise to this question—can the clear right of the voters and officer elect be taken away without any remedy? This I hold to be derogatory to the perfection and efficiency of our jurisprudence. In England the law is clear; see 1 Black., 413; also the case of Grant v. Sir Charles Gould, 2 H. Black, p. 84, is clear as to the general rule; first, ngne but a soldier in the standing army is amenable to martial law. Second, all courts martial are subject to the jurisdiction of Westminster Hall. In England, Hale and Blackstone unite that martial law is not properly a part of the law, but a matter of necessity tolerated—but in this State we have no martial law that belongs to the United States; we have only militia law, with no criminal jurisdiction, which is all that belongs to courts martial proper. A court martial cannot in England decide on the right of an officer to his commission—it is a question of property. The right of suffrage and to office in the militia, is one under the protection of the Courts. I hold it the error of our institutions, to yield principle to convenience and haste, by entrusting the most serious rights to inferior tribunals, and making their decisions final. It introduces the most monstrous decisions by men wholly ignorant of all law, temporarily clothed with power, but having neither the knowledge nor discretion necessary to its exercise. In England, the theory is, that the king, as the first magistrate in all cases, is authorized to protect his subjects. His court of aula regís was universal in its correctional jurisdiction, and even in courts martial the king is absolute; and the point is, has this power to protect the citizen vested in the Courts of this State, or is our jurisprudence curtailed of the ancient common law security afforded to the oppressed. If an inferior tribunal refuses to act where they have jurisdiction, a mandamus lies. If such a tribunal assumes a jurisdiction, not conferred, a prohibition lies. If the Court commits an error of law, a certiorari lies; see Senft ads the State; 2 Hill, 367.
    In this case the protest states all the facts, and they are not controverted; so that this is substantially a demurrer, whether the protest contained matter in law sufficient to set aside the election? Certiorari then lies to correct this error of law, unless it is true, that the voters can be dsifranchised, and the officer elect be deprived of his office by a clear error of law, without any redress. Hales Pleas of the Crown, 140; 1 East, 313; 4 Inst., 99-100; all show the general jurisdiction of the sessions.
    As to the Act of 1841, the words Board, and Courts, are both used, bi$t every tribunal exercising judicial power is a Court; and if the 89th clause applies to a Board, then the appeal lies to the Governor, and a mandamus lies, to require the Commander-in-chief to decide finally, as the matter affects the commission of an officer.
    Simons, contra.
    
    The decision of the board approved by the Major General, is conclusive. Until the commission is given to the officer, his right certainly can not be affected. The duty of the board was to discover who had the right to the commission; Neely v. Watkins, 1 Rich., 42. The decisions of courts of enquiry under the Act of 1841, shall be conclusive; Graham ads Beckner, 1 Rice, 44. The Legislature may take away the writ of certiorari; in all other cases, it is the offspring of the common law. The intention of the Legislature may be implied.
    
      
       The Act of the last General Assembly, lo alier and amend the law, in relation to the election of Major General and Brigadier General of tire Militia of this State, now gives this right of appeal.
    
   O’Neall J.

delivered the opinion of the Court.

The 1st and 2d grounds are sufficiently answered by the judgment below. The 3d ground has been considered here, as of sufficient importance to require that it should be noticed in the opinion. The 89th sec. of the Act of 1841, Militia Laws, p. 22, provides, “if the officer authorized to approve the proceedings of a court martial, shall think their decision erroneous, he may reassemble them to consider the case, and may assign his reasons to them, and they shall forthwith reconsider the case, and their decision shall be conclusive, and he shall carry the same into effect; but in every case affecting the rank or commission of any officer, he shall, after the reconsideration of such court, have the right of appeal from a court ordered by a Colonel to the Brigadier, or from a court ordered by a Brigadier to the Major General, or from a court ordered by the Major General to the Commander-in-chief, and the decision of the officer to whom the appeal is made shall be conclusive.” It has been supposed under this section, that the Major General, doubting the correctness of the decision, might reassemble the board, and that their second decision was conclusive, subject to an appeal to the Commander-in-chief. It is perfectly plain that the Major General did not suppose that the case before him was embraced by this section; he adopted his course merely in analogy to it. The 1st question is, “is a board of officers ordered to try a contested election, a court martial'?’’ To say so would violate all propriety of speech. The terms “court martial” are very well understood by military men, to mean that sort of court which has jurisdiction of all military offences committed by officers, non-commissioned officers, and soldiers belonging to the army or the militia. Under our Militia Act of 1841, the'same idea is kept up. It will be seen on examining it, that when a court martial is spoken of, it is always understood to be a court of officers, assembling under the order of a superior, to try and punish officers and soldiers for default, incompetence, or some military offence. In the words of the 81st section, it is, “for the trial of any officer, non-commissioned officer, musician, private or fatigue man of the militia of this State,” that such a court assembles. Did this board of officers assemble to try any one? no! They met merely to try a question of right, “who was elected Brigadier General of the 8th Brigade.” The board approaches nearer to a court of inquiry, which is only “intrusted with power to examine into the nature of any transaction, accusation or imputation against any officer or soldier.” The court of inquiry is to the army or militia, what the grand jury is to the Court of General Sessions of the peace. It goes before trial and is intended merely to prepare the way to ascertain the truth. Under the former militia laws, the trial of contested elections was by officers, then called a court of inquiry. The Act of 1841 very properly rejected that name, and called those assembling to try such a case, a board of officers. These views would end all pretence of appeal to the Commander-in-chief; but they are much strengthened when it is recollected that their decision affects neither the rank nor commission of an officer, for notwithstanding this decision, Col. Commander» is an officer, is in all respects the same as he was before it. He still is a Colonel. That he has failed to establish his claim to the rank and commission of a Brigadier General, does not affect either his existing rank or commission, and that is what is meant by the 89th section. Upon every view, I think Gov. Aiken was right in holding that there was no appeal to him. That there is nothing in the 4th ground, I think manifest from the declaration by the Legislature, that the decision of the board and the approval of the Major General shall be conclusive. It is trae that such a provision, in relation to many inferior, civil and criminal tribunals, would not have the effect of preventing the great prerogative writ of certiorari from being granted, to correct errors of law in their proceedings. But that a certiorari to a military tribunal does not lie, is, I think, apparent from what is said in Jacob’s Law Dictionary, title certiorari, (1 Jac. Law Dic., 412,) where it is laid down to be law, that a “certiorari does not lie to remove any other than judicial acts.” The proceedings and sentence of courts military can hardly be considered judicial acts. The absence of all precedent of a writ of certiorari directed to a military court, is certainly a strong argument against its allowance now. But the very fact, that the sentence of the court is not known until approved, then that the court is dissolved, and that the whole proceedings are in the possession of the officer ordering the court, shew that the writ of certiorari cannot be awarded. For there is no one to whom it can go, and who can, as of and for the court, certify the proceedings. But tha t the Court of Sessions has no right to pronounce a military judgment upon the proceedings being certified up, is itself conclusive against the writ.

The motion to reverse the decision below is dismissed.  