143 P. 947 | Mont. | 1914
delivered the opinion of the court.
On September 1, 1914, the Honorable S. Y. Stewart, governor of this state, issued his executive proclamation, as f ollows:
“PROCLAMATION.
“Whereas, It has become apparent that conditions of lawlessness and defiance of authority prevail in the county of Silver Bow, State of Montana, and that combinations to resist the execution of process exist in said Silver Bow county, and that the power of the county has been exerted and has not been sufficient to enable the officers having process to execute it; and
“Whereas, It has been represented to me by properly constituted authorities that the peace officers of said county are unable to secure service of process and compliance with the law; and
“Wliereas, It is made sufficiently to appear to me that peace and quiet cannot be re-established in said county of Silver Bow without the aid of some force other than the present constituted authority of said county;
“Now Therefore, I, S'. Y. Stewart, as Governor of the State of Montana, under and by virtue of the authority vested in me by the Constitution and the statutes of said state, do hereby proclaim the said county of Silver Bow, State of Montana, to be in a state of insurrection, and do hereby declare that said Silver Bow county, State of Montana, be and is hereby under martial law, and under the jurisdiction of the military authorities of said State of Montana, and such military forces as may be ordered into service to enforce the provisions of this proclama*457 tion, shall be under the command of Major Dan J. Donohue, this proclamation to continue until the same shall be revoked or modified.
“And I do hereby call upon all citizens of said county and demand of them that they refrain from any and all acts that may in any way contribute to a continuance of disorder. They should desist from participating in gatherings upon the streets or in public places, mindful always of the danger that attends the assembling of large crowds of the idle and curious and of the fact that the innocent bystander is always in peril in the event of a clash between lawless and the forces of law and order. And I appeal to the sober-minded, peace-loving citizens of said county for co-operation with the proper authorities in any manner that will tend to a restoration of peace and quiet in that community.
“The forces of the state have been sent into said county upon the urgent demands of those who are entitled to be heard in an appeal for protection of life and property, and for the adjustment of conditions that have become intolerable and a stigma upon the fair name of our state. In the pursuit of this end these forces shall know neither organization nor faction, their sole aim being the re-establishment’ of peace in the county of Silver Bow. In the accomplishment of this purpose they should have the moral support of every person who values the stability, of government and the safety of life and property.
“In Witness Whereof I have hereunto set my hand and caused the Great Seal of the State to be affixed.
“Done at Helena, the Capital, this the First Day of September, in the Year of Our Lord One Thousand and Nine Hundred and Fourteen, and of the Independence of the United States the One Hundred Thirty-Ninth.
“(Signed) S. V. Stewart.
“ (The Great Seal of the State of Montana.)
“By the Governor.
“A. M. Alderson,
“Secretary of State.”
Thereafter, and on September 24, 1914, Dan Gillis filed his petition for a writ of habeas corpus, alleging unlawful detention and restraint by the same respondents, and that such detention and restraint are had and claimed by virtue of a commitment issued on September 21, 1914, by Jesse B. Roote, as major and judge of a certain summary court set up by the military authorities in Silver Bow county, after an alleged trial before said Jesse B. Roote without a jury, upon a charge of assaulting and resisting an officer, and in which said proceeding said Jesse B. Roote assumed to adjudge the petitioner guilty and to-render judgment that he be imprisoned in the county jail in Silver Bow county, or any prison in said county, for the term of eleven months and pay a fine of $500; and all this notwithstanding all of the district courts of said Silver Bow county were, during the period covered by said proceeding and since have been, open and actively attending to business including the trial of causes. The effect of the return to this petition is to admit the detention of the petitioner under the commitment above mentioned; and such detention is sought to be defended upon the following grounds: That by the proclamation of the governor, martial law became established in Silver Bow county; that by the proclamation of Major Donohue the summary court above referred to was created, “and it was ordered that all acts which would constitute an offense or offenses under the penal laws of Montana or the ordinances of the city of Butte, as well as any act which would hinder or tend’to hinder, delay or obstruct the work of the military forces in restoring order, should be punishable as offenses under the martial law, and that such punishments should be inflicted as in the judgment of said
A. That the governor had the authority to proclaim a state of
the governor remains within the limits established by the
Premising, then, that Silver Bow county was and is in a state of insurrection, and that the presence of the organized militia
The return to the writs issued on behalf of McDonald and his copetitioners is in exactly the same terms as that presented in the Moyer Case, cited above, and touching its efficacy the supreme court of Colorado said: “Are the arrest and detention of petitioner under the facts narrated illegal? When an express power is conferred, all' necessary means may be employed
After his release, Moyer brought a civil action in the circuit court of the United States for the district of Colorado, to secure damages for his arrest and imprisonment, and that court, in sustaining a demurrer to the complaint, remarked: “The state Constitution enjoined the governor, as such officer, to put down the insurrection. The situation must have been more or less desperate and required prompt action, effective of the purpose. Measures are sometimes necessary under the police power that are severe, such as the summary destruction of property used for an unlawful purpose (Lawton v. Steele, 152 U. S. 133, 38 L. Ed. 385, 14 Sup. Ct. Rep. 499); such as treating property used in an unlawful traffic as a nuisance (Mugler v. Kansas, 123 U. S. 623, 31 L. Ed. 205, 8 Sup. Ct. Rep. 273; Kidd v. Pearson, 128 U. S. 1, 32 L. Ed. 346, 9 Sup. Ct. Rep. 6); such as the summary destruction of property to stay conflagration (Bowditch v. Boston, 101 U. S. 16, 25 L. Ed. 980); such as the sum
The cause last mentioned was appealed to the supreme court of the United States and was affirmed, Mr. Justice Holmes speaking as follows: “Of course, the plaintiff’s position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends bn circumstances. It varies with the subject matter and the necessities of the situation. Thus summary proceedings suffice for taxes, and executive decisions for exclusion from the country. (Murray v. Hoboken Land & Improvement Co., 18 How. 272, 15 L. Ed. 372; United States v. Ju Toy, 198 U. S. 253, 263, 49 L. Ed. 1040, 25 Sup. Ct. Rep. 644.) What, then, are the circumstances of this ease? * * * The facts that we are to assume are that a state of insurrection existed and that the governor without sufficient reason but in good faith, in the course of putting the insurrection down, held the plaintiff until he thought that he safely could release him. * * * In such a situation we must assume that he had a right under the state Constitution and laws to call out troops, as was held by the supreme court of the state. The Constitution is supplemented by an Act providing that ‘when an invasion of or insurrection in the state is made or threatened, the governor shall order the
■The reasoning of these cases, properly understood and strictly confined to its proper sphere, we take to be unanswerable, and to be entirely applicable to the right and duty of the governor and the militia, under our Constitution and laws. The release of McDonald and his copetitioners was therefore denied; but since the justification is necessity, and since it cannot obtain beyond the period of such necessity, we granted leave to reapply, having in mind that the course of events might or might not demonstrate the detention of these petitioners beyond the time indicated to be unnecessary.
B. Does it follow, then, that the governor can suspend the
We prefer, however, to rest our conclusion upon other
The sort of martial law for which respondents now contend is regarded in England as a strictly continental institution. It is applied by declaring the affected locality in “the state of siege” wherein “the constitutional guaranties are suspended.” Professor Dicey comments upon it as follows: “This kind of martial law is in England utterly unknown to the constitution. Soldiers may suppress a riot as they may resist an invasion; they may fight rebels just as they might fight foreign enemies: but they have no right under the law to inflict punishment for riot or rebellion.” (Dicey, Law of the Constitution, 381.) If they cannot inflict punishment for riot or rebellion, they cannot inflict, it for any other offense against the municipal law.
Turning to our own country, we note that when the Constitution was adopted, the common law on the subject was as stated by Justice Blackstone. We may also recall that there was a very keen, appreciation and jealousy of their personal rights on the part of our forefathers — a jealousy which had been in part directed to this very subject of martial law by the acts of General Gage in New England and of Governor Dunmore in Virginia. It is also well known that when the national Constitution was submitted to the people, over one-third of the vote
And such we find to be the result of the adjudicated cases arising under the national Constitution. It would extend this opinion to inordinate length to review them all, and we shall therefore content ourselves with a brief reference to a few whose meaning cannot be doubted. Smith v. Shaw, 12 Johns. (N. Y.) 257, arose out of an arrest for trial- by court-martial during the war of 1812, and the supreme court of New York in disposing of an attempted plea of justification under the martial law said: “It is a general rule that where a court has neither jurisdiction of the subject matter nor of the person, everything done is absolutely void. * * * None of the offenses charged
Johnson v. Duncan, 3 Mart. (La.) 530, 6 Am. Dec. 675, arose out of the declaration by General Jackson of martial law in the city of New Orleans, and the supreme court of Louisiana touching that matter declared: “If it be said that the laws of war, being the laws of the United States, authorize a proclamation of martial law, I answer that in peace or in war no law can be enacted but by the legislative power.”
The next war fought upon our own soil was the great rebellion, and, as might have been expected, it gave rise to much controversy and discordance of opinion touching the scope and power of martial law. All this, however, was set at rest by the great decision of the supreme court of the United States in the Milligan Case, wherein all that is now asserted by respondents was urged upon the court and from which decision we quote: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving mere pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. * # *
“Every trial involves the exercise of judicial power; and from what source did the military commission that tried him derive their authority ? Certainly no part of the judicial power of the country was conferred on them; because the Constitution expressly vests it ‘in one supreme court and such inferior courts as the Congress may from time to time ordain and establish,’ and it is not pretended that the commission was a court ordained
“Why was he not delivered to the circuit court of Indiana to be proceeded against according to law? No reason of necessity could be urged against it; because Congress has declared penalties against the offenses charged, provided for their punishment, and directed that court to hear and determine them. * * * If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he ‘ conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection, ’ the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended.
“Another guaranty of freedom was broken when Milligan was denied a trial by jury. The great minds of the country have differed on the correct interpretation to be given to various provisions of the federal Constitution, and judicial decision has been often invoked to settle their true meaning; but until recently no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed; but if ideas can be expressed in words, and language has any meaning, this right — one of the most valuable in a free country — is preserved to everyone accused of crime who is not'attached to the army, or navy, or militia in actual service. * * * All other persons, citizens of states where the courts, are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal jus
“It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that in a time of war the commander of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge), has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States. If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules. The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guaranty of the Constitution, and effectually renders the ‘military independent of and superior to the civil power’ — the attempt to do which by the king of Great Britain was deemed by our fathers such an offense, that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.”
As pointed out by an eminent military authority, there is nothing in Mitchell v. Clark, 110 U. S. 633, 28 L. Ed. 279, 4 Sup. Ct. Rep. 170, or in any subsequent decision of the supreme court, to break the force of the Milligan decision. (Union College Lectures, Clous on Military and Martial Law.)
We are quite aware that as indicated by Chief Justice Marshall in Barron v. Baltimore, 7 Pet. 243, 8 L. Ed. 672, the guar
It is insisted, however, that under all the decisions the executive can establish martial law in time of war when the ordinary
The term “war” is used in the books, not in its popular but in its legal sense, and only the national Congress can declare or recognize the existence of war. There is a very great distinction between insurrection and war. It is this: War is an act of sovereignty, real or assumed; insurrection is not. War makes enemies of the inhabitants of the contending states; but insurrection does not put beyond the pale of friendship the innocent in the affected district. . War creates the rights and duties of belligerency, which to a mere insurrection are unknown. Doubtless an insurrection may become war, as was the case with the great rebellion, but it does not become so in the legal sense until the rebellious party assumes political form. This was pointed out by the supreme court of the United States in the Prize Cases, 2 Black (U. S.), 635, 673, 17 L. Ed. 459. “In organizing this rebellion, they have acted as states, claiming to be sovereign over all persons and property within their respective limits, and asserting a right to absolve their citizens from their allegiance
How inapplicable all this is to a formless insurrection and how impossible to characterize such a movement as a state of war, with all its powers and immunities, is pointed out by Mr. Justice Nelson in the Prize Cases cited: “It has been argued that the authority conferred on the President by the Act of 1795 invests him with the war power. But the obvious answer is, that it proceeds from a different clause in the Constitution and which is given for different purposes and objects, namely, to execute the laws and preserve the public order and tranquillity of the country in a time of peace by preventing or suppressing any public disorder or disturbance by foreign or domestic enemies. Certainly, if there is any force in this argument, then we are in a state of war with all the rights of war, and all the penal consequences attending it every time this power is exercised by calling out a military force to execute the laws or to suppress insurrection -or rebellion; for the nature of the power cannot depend upon the numbers called out. # * * The truth is, this idea of the existence of any necessity for clothing the President with the war power, under the Act of 1795, is simply a monstrous exaggeration.”
So far as the right to trial by jury in case of insurrection is concerned, it does not seem to us vitally important whether the courts are or are not open when the military appear. It may be granted that courts which are prevented by insurrection from executing their process are not open in contemplation of the law'. To open them is a part of the duty devolving upon the military. It was conceded at bar that some of the courts of Silver Bow county are in operation, though it was insisted to be only such as are permitted by the military authorities, the others being closed by their order. No such cloture can be recognized.
We have somewhere met with the argument that because the insurrection may be prolonged, the summary trial of offenders is
Martial law, however, is of all gradations, and although the governor cannot by proclamation or otherwise establish martial law of the character above discussed, he is not barred from de
A very brief notice will suffice for the contention that in consequence of the passage of the Donohue bill by the legislature,
The trial and commitment of petitioner Gillis were void and his