21 Wis. 621 | Wis. | 1867
This is an action for false imprisonment. The plaintiff alleges that be was unlawfully arrested at Port Washington, in this state, on the 12th day of November, 1862, and detained in custody until the 19th day of January,- 1863. The defendant answering admits the arrest; denies that the plaintiff was held in custody by him after the 25th day of November, 1862; and avers that be was then governor of the state of Wisconsin, and as such governor, under the laws of the United States, authorized to enforce the draft in Wisconsin ; that the plaintiff and others were arrested by him to suppress a riot against the laws of the state and an insurrection against the laws of the United States, to forcibly oppose the execution of the draft; that such insurrection was suppressed by the arrest of persons known to be engaged therein, or believed upon reasonable grounds to be so engaged, among whom was the plaintiff; and that such persons, including the plaintiff, were held in custody no longer thin in the opinion of the
The testimony, in substance, on the part of the plaintiff, is, that be was arrested on the 13tb day of November, by order of the provost marshal, acting under the orders of the defendant, and kept in custody until about the 19tb day of January, 1863. On the part of the defense it was proved, that the defendant was governor, and acted as such, under the order of the secretary of war and rules and regulations prescribed by the president of the United States through the war department, in appointing enrolling and draft officers and in enforcing the draft; that be appointed Wm. A. Pors draft commissioner for the county of Ozaukee, and that the tenth day of November, 1862, was fixed as the day for the draft to take place for that county, at Port Washington; that the defendant was authorized by an order of the secretary of war to use the United States troops in the state, when necessary to enforce the draft; that for several days before the tenth, it was manifest that a great part, probably a majority, of the people of Ozau-kee county, were opposed to the draft; and that many of them were apparently determined that there should be no draft in that county. On that day, before the draft commissioner bad commenced drafting or attempted to, a large body of men marched through the street, carrying a flag, on which, in large letters, were the words “No Draft;” that when the commissioner was about to commence drafting, be was assaulted, stoned, badly bruised and beaten, and compelled to run for bis life; and be, being bunted by the mob, secretly left the town. Those engaged in the riot or insurrection, then went to bis house and destroyed bis furniture, and the doors and windows of the house, and otherwise injured it; and did the same to the houses and furniture of several other loyal citizens. The mob continued its work all that day into the night and part of the next day, to the great terror of quiet and loyal people, de
The circuit court instructed the jury to find for the defendant. The plaintiff maintains that the instruction is erroneous; and this presents the main question for our consideration. Did the court err in giving the instruction ? The plaintiff insists that there was no law authorizing the draft, and no evidence tending to prove that either be or those resisting the draft committed any crime against the laws of the United States. This court held In re Griner, 16 Wis., 423, that the act of Congress of February 28, 1795, and the act of July 17, 1862, which provide for calling forth the militia of the United States to execute the laws, suppress insurrections and repel invasions, are constitutional and valid: that the president, as incident to the power of calling forth the militia, has authority to detach and draft the militia, and that he could do this without the aid of any state legislation, by virtue of the provisions of the act of 1795 ; that although it was intended that the president, under the act of 1862, should avail himself of state laws for drafting in such states as had such laws, yet, as there was in this state no law on the subject, he could exercise the power conferred on him by the act of 1795. We are satisfied of the correctness of that decision, and think it is fully sustained by the authorities cited in the opinion. See also In re Spangler, 11 Mich., 298. It follows from that decision, that the rules and regulations respecting enrolling and drafting the militia, adopted by the president and promulgated through the war department, are valid; and if valid, the draft commissioner appointed by the governor was an officer of the United States. It was so held in the case of Spangler, above cited. If the draft commissioner was a federal officer, the governor, in executing the draft, acted not under state but under national authority, and was also an officer of the United States, obeying
If, however, the question of the guilt or innocence of the defendant depended upon the wisdom of his acts in exercising
It is a general principle of law, that a j udicial officer is not responsible in an action for damages to any one for any judgment he may render, however erroneously, corruptly or maliciously he may act in rendering it, provided he has jurisdiction of the parties and of the subject matter of the action in which it is rendered. And every court must in the first instance pass upon the question of its own jurisdiction; and its decision upon that question is frequently conclusive and binding upon all persons; especially is this the case as to the judgments of courts of last resort. An exemption similar to that of judges
The power of the president to call forth the militia under the act of 1795, and whether he was the sole judge when the exigency had arisen, were considered by the supreme court of the United States in Martin v. Mott, 12 Wheaton, 19. Mr. Justice Stout, in delivering the unanimous opinion of the court in that case, in speaking of the exercise of the power to call forth the militia, says: “ Is the president the sole and exclusive judge whether the exigency has arisen, or is it to be considered an open question, upon which every officer to whom the orders of the president are addressed may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the president ? We are all of opinion that the authority to decide when the exigency has arisen belongs exclusively to the president, and that his decision is conclusive upon all persons. We think this construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the act of congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the union. A prompt and unhesitating obedience to orders is indispensable to the complete attainment of the object. The service is a military service, and the command of a military nature; and in such case, every delay and every obstacle to an efficient and immediate compliance necessarily tpnd to jeopard the public interests. While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the facts upon which the conrma.nrlp.-r in chief exercises the right to demand their services, the hostile enterprise may be accomplished without the means of re
In Marbury v. Madison, 1 Cranch, 137, Chief Justice Marshall, after reasoning upon the political or discretionary powers of the president and heads of departments, says: “ The conclusion of this reasoning is, that where the heads of departments are the political or confidential agents of the executive merely to execute his will, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of
But it is unnecessary to pursue this line of reasoning further, or to enquire in what cases officers entrusted with authority discretionary, and which they are authorized to use only in case of necessity and on the occurrence of certain events, must, in an action against them them, allege and prove in justification the facts which show that the exigency has arisen.
But it is said, such executive power is dangerous to liberty. Admit it It is also absolutely necessary to every free government. Ever since the downfall of the feudal aristocracies of Europe, the champions of freedom have labored so to limit executive power as to prevent usurpation and despotism; and they have succeeded in England and in this country, by throwing around it various checks and safeguards. Not one of these would we remove, or do aught to impair its efficiency. While, however, executive power is dangerous to liberty, no government has ever existed long without it. Without it, in the great crises which await every nation, government dissolves in anarchy.
The next question is, whether the defendant is liable for detaining the plaintiff in custody after the arrest. He had a right to detain the prisoners, including the plaintiff, so long as in his judgment was necessary to prevent the further obstruction of the draft, and until they could safely be turned over to the civil authorities for trial. He kept them twelve days, when, by order of the president, they, including the plaintiff, were transferred to the custody of other United States officers, and beyond the control of the' defendant. We think the same principles which control as to the arrest, apply
By the Court. — Judgment affirmed.