268 F. 69 | S.D. Tex. | 1920
This is a petition for a'writ of habeas corpus by William McMaster, a civilian resident of Galveston, wherein it is charged that Brig. Gen. Jacob F. Wolters, Col. A. W. Bloor, and Capt. O’Brien Stevens, all officers of the Texas militia, and respectively the commanding officer of the district, the provost marshal, and the provost judge, are unlawfully restraining his liberty and detaining him in custody, in violation 'of his rights guaranteed by the Constitution of the United States.
The case, as made out by the pleadings and argument of counsel, and admissions in argument, is this: Gov. Hobby, of Texas, issued a proclamation on June 7, 1920, declaring there had been acts of violence in Galveston and danger of insurrection, riot, and breach of the peace, and declaring martial law in Galveston. By the same proclamation Gen. Wolters was directed to assume command of a district embracing the city of Galveston, which he did. That was followed by a proclamation on July 14, 1920, declaring that the mayor, four city commissioners, the city attorney, the judge of the city court, chief of police, the chief of detectives, and all members of the police and detective departments had failed, refused, and neglected to) maintain order and preserve the peace, and suspending the city officials, and directing the commanding general to enforce order and cause the civil law to be faithfully executed. On that Gen. Wolters issued his General Order No. 12, of July 15, 1920, directing the provost marshal to take charge of the police station, city hall, office of the city judge, and all records, and directing that all persons charged with violations of city-ordinances be tried by the provost marshal. This order was supplemented on the same day by General Order 13, detailing Capt. O’Brien Stevens as provost judge, with full authority to try such cases as
With these proclamations and general .orders in force, the militia on the scene and in charge of the city of Galveston, the relator was arrested on a complaint by a civilian, charging him with exceeding the speed limit for automobiles in violation of the traffic ordinances of Galveston, and tried before Capt. Stevens. He objected to the jurisdiction of the court and asked for a trial by jury. A trial by jury was denied, and his exception to the jurisdiction disregarded. He was found guilty, sentenced to pay a fine of $50, and committed to jail in default of payment.
The only question before this court is the jurisdiction of the provost court. I have examined the authorities cited by both sides; some of them are more or less persuasive, none of them in point are controlling on this court, and I think the case can be decided on fundamental principles.
The point is also made hy relator that only the Legislature can suspend a law. Const. Texas, art. 1, § 28. Suspending a judge, is not suspending a law. On the contrary, in this case the military was directed to enforce existing laws, and the provost court was created for that very purpose.
In regard to the denial' of the trial by jury, it is well settled the federal Constitution does not guarantee a trial by jury in the state courts. It-applies only to trials in the federal courts, and if some other due process of law and some other method is provided by the state statutes it is sufficient. Manifestly, in a community under martial law, a trial by jury would be impracticable.
So, on the whole, I must conclude this military court was properly constituted, and had jurisdiction for the trial of this offense, and that proceedings having been had there, and relator convicted and sentenced, his imprisonment cannot be inquired into in this court on a writ of habeas corpus.
The petition is denied.