3 Wash. 386 | Wash. | 1891
The opinion of the court was delivered by
The respondents constitute the board of .military auditors.under the militia law of 1890, § 23 (Laws
“Seattle, June 24, 1891.
“ Governor E. P. Ferry, Olympia Hotel:
“I am informed that a riot has occurred at Gilman, and' the destruction of mine property is threatened now by*388 armed men. The sheriff is at Walla Walla. His deputy here declines to act for want of authority. The owners of the mine have appealed to me for protection. I have refused until properly ordered. If the sheriff requests me to send troops to use as a posse, can I do it without orders from you? See § 860 of the code, and Ela v. Smith, 5 Gray, 121. I am informed the situation is critical, and that loss of life and property are likely unless prompt action is taken. Colonel J. C. Haines.”
And received in reply the following:
“Olympia, June 25, 1891.
“Colonel J. C. Haines, Commanding First Regiment N. G.
W, Seattle:
“If any officer mentioned in § 860 of the Code of Washington calls for an armed force to suppress a riot, or to enforce the execution of the laws at Gilman, in King county, you will immediately repair to that place with one or more companies of the N. G. W., as you may deem advisable, and render such aid to the civil authorities as may be necessary. Elisha P. Ferry, Governor.”
On the evening of Sunday, the 27th" day of June, a riot occurred at the town of Franklin, in King county, which resulted in a battle between two contending factions, numbering in all about eight hundred men, and in which two men were killed and several wounded. The deputy at that point was unable to quell the riot or disperse the mob, and the conflict ceased only on account of the approach of darkness; the factions withdrew a short distance from each other, evidently intending to resume the battle with the coming of daylight on the following day, The deputy sheriff telegraphed Colonel Haines at Seattle requesting him to order immediately to Franklin one or more companies of his regiment to assist the civil authorities in preserving the peace. This telegram was received by the colonel at about half-past ten in the evening of that day. The members of his command were scattered throughout the city, but were collected and sent to Franklin, which is
“Seattle' Wash., June 27, 1891.
“ Elisha P. Ferry:
“I have received a request from the deputy sheriff to send a company of the national guard to Franklin immediately, he expecting a riot at any moment. Several persons 'have been shot. I have ordered a company there, and will accompany them. I have no specified orders from you except for Gilman. If my action is not approved, wire me at Franklin. J. O. Haines.”
Companies B and D were ordered out, and as soon as a sufficient number of these companies were assembled to constitute one company available for duty the colonel proceeded with them at once to Franklin, arriving there at daybreak. To the telegram of June 27th no answer was sent by the governor. The arrival and presence of the troops at Franklin prevented any further outbreak at that point, and these companies remained in service until relieved from duty on the 15th day of July. On the 29th day of June the threatened riot at Gilman occurred, and the sheriff, after endeavoring in vain to quell it, requested the colonel to send two companies of his regiment to that place for the purpose of assisting the civil authorities in preserving the peace, and preventing the destruction of life and property. This he immediately did, sending companies D and E of his regiment there. They arrived at Gilman on the morning of the 30th of June and reported to the sheriff’s deputy, and remained on duty until the 16th day of July, preventing by their presence any further riotous demonstrations.
At the towns of Franklin, Newcastle, Black Diamond and Gilman, in King county, there are large and valuable coal mines, the operation of which constitutes one of the principal industries of the state; and at those places unlawfully armed bodies of men, organized in the form of military
“ Olympia, July 2,1891.
“ Colonel J. C. Haines, Franklin:
“ The civil authorities should disarm all unauthorized armed bodies at Franklin, Gilman and elsewhere in King county where there is danger of a riot or breach of the peace. You will render all necessary assistance to the civil authorities in this direction. After disarmament/ the sheriff and deputies will probably be able to preserve the peace, and the presence of the military will no longer be required. A request for voluntary disarmament by all the parties should be made before active measures are taken. Elisha P. Ferry, Governor.”
Colonel Haines, not deeming the force at his disposal sufficient to carry out the governor’s suggestions, in rejily sent to him the following telegram:
“Gilman, July 2,1891.
“Hon. Elisha P. Ferry:
“ Does your order of to-day relative te disarming armed bodies allow me to use, if necessary for its enforcement without breach of the peace, any companies of this regiment other than those now in the field ?
“J. C. Haines.”
To which he received from the governor the following answer:
“Olympia, July 2, 1891.
“Colonel J. C. Haines Franklin:
“ You can use all of the first regiment for the purposes indicated in my dispatch of this morning, if necessary.
“Elisha P. Ferry, Governor.”
The sheriff of the county, for the purpose of carrying out the governor’s suggestion in his first telegram of July
The"'statute in view of which Colonel Haines’ telegram of June 24th was addressed to the governor is in the code of 1881, as follows:
“Sec. 860. If three or more persons shall be unlawfully, riotously or tumultuously assembled, any justice oí the peace, sheriff, deputy sheriff, constable or marshal oí a city, or mayor or alderman thereof, shall go among the persons so assembled, or as near to them as possible, and shall command them in the name of the Territory oí Washington immediately to disperse. If the persons so assembled do not immediately disperse, it shall be lawful for every such officer to command sufficient aid; and to seize, arrest and secure in custody all such persons, and if necessary, an armed force may be called out, and shall obey the orders of any two of the magistrates or officers mentioned in this section, and if any such persons shall be killed or wounded by reason of their resisting the persons endeavoring to disperse or seize them, the magistrate or officers shall be held guiltless.”
In so far as this section authorizes the officers therein mentioned to preserve the peace by using armed assistants, it is merely the reenactment of the common law. It became the statute law of the territory in 1854, before any organization of the militia was provided for. Several other sections in the code of 1881 stand with it and help to make it efficient, viz., § 886, which makes it a criminal offense to refuse to assist an officer; and § 2769, which relates particularly to the duty of sheriffs. It has always been the duty of magistrates and peace-officers to preserve the public peace, even to the extent of calling to their aid every person within their jurisdiction, and they are, at common law, indictable for not doing so to the extent of their ability. Rex v. Pinney, 5 Carr & P. 254; Brightley’s Binns’ Justice, 804. And it has always been equally an offense for any person qualified for the service to* refuse the demand
It is pointed out to us that by the statutes of certain states, as Massachusetts, Iowa and California, the term “armed force,” or “armed body,” is used in connection with provisions which authorize magistrates and peace officers to summon the officers of military organizations composing portions of the state militia within their jurisdiction to assist them in keeping the peace and executing the law. But full examination discloses that in each instance, the authority thus conferred is expressed in precise and unequivocal language, and is hedged about with such formal safeguards as under the perilous circumstances justifying such a use of the military must to every one seem absolutely necessary. In Iowa, by statute, when militiamen are thus employed, it is only upon the order of the sheriff, who may summon those within his county, and call upon the governor for others; and in that state the county is required to pay the expense of such military assistance. But this is not so in other states, at least by any published statute which we have observed, although in several others sheriffs and other peace officers are expressly authorized to call out the military within their several jurisdictions without previously communicating with the governor, who is invariably the commander-in-chief. The military, under our governmental system, in all ordinary cases, is kept in strict subordination to the civil power, a condition which is never removed except in case of invasion by a foreign power, or
But, being there, the next question is, were not these men in the service of the county? If they were part of the sheriff’s posse, we find no authority for making them compensation out of the county treasury. The service of the citizen as a member of the posse comitatus is one which
In the argument of this case stress was laid by both sides upon a critical examination of the several telegrams which passed between the governor and the colonel of the first regiment. But in the view we take of the matter, it matters little whether that of June 24th from the colonel be considered as a request for advice or the communication of a fact, viz., that one riot had occurred and more were threatened, or whether that of the governor, of date June 25th, was an order dependent upon a call by an officer named in § 860 for an armed • force. Ample grounds existed, as shown by the petition, for the governor’s order of that date; and, whether they did or did not, his excellency was the sole judge of the situation, and his decision was not to be questioned, either by the troops or the courts, or in any other way than that pointed out in the constitution. Martin v. Mott, 12 Wheat. 30; Vanderheyden v. Young, 11 Johns. 150.
Before leaving the case we desire to notice an argument which was used to sustain the position that the troops were not in the service of the state, viz., that they were not called out in accordance with the act of 1890 (Laws 1889-90, p.
In these cases prevention is to be desired, not cure; and it is to be hoped that for all time in this state, as in this case, a show of force, without the firing of a shot, will be sufficient to secure respect for the law and the safety of the people. From the petition here we learn that in a remote, unpoliced district of King county, the sheriff was
Let the peremptory writ issue as prayed for. Costs of this cause to be taxed and allowed by the board of military auditors.
Anders, C. J.; and Hoyt, Scott and Dunbar, JJ., concur.