280 F. 208 | D. Neb. | 1922
These are applications for writs of habeas corpus by two persons who have been committed to a term of imprisonment in a county jail of this state. The facts leading up to the imprisonment are as follows:
The Governor of the state had issued a proclamation declaring the existence at Nebraska City of a state of lawlessness and disorder beyond the control of the civil authorities, and that the local officers had applied for military assistance to be placed in control of that territory for the restoration and maintenance of law and order. The proclamation therefore declared the territory to be subject to martial law, and ordered the National Guard of the state to occupy the territory for the purpose of restoring law and order. After the troops were in possession of the territory, the Governor authorized the appointment of military commissions to try offenses against the public peace and violations of any military rules and regulations.
Each of the petitioners was charged with violation of some of these regulations, one in retaining in his possession arms, equipment, and munitions of war, and the other in keeping open a prohibited place of business, and each was found guilty and sentenced, and the commitments are in pursuance of these sentences. The petitioners were not employed in the military service and were citizens of Nebraska City. The state courts at Nebraska City were open during all the time of military occupation. After the petitioners had served a portion of their sentences, the Governor issued a proclamation reciting that violence and disorder had ceased at Nebraska City, and he therefore terminated martial law and withdrew the troops.
Section 3913 of the same chapter provides that the militia may be called into service in time of war, invasion, riot, rebellion, insurrection, or reasonable apprehension thereof, and section 3916 authorizes the Governor to proclaim any portion of the state in a state of insurrection when in his judgment the maintenance of law and order will be promoted thereby, and the militia are employed to aid the civil authority.
“That means that he shall make the ordinary use of the soldiers to that end, that he may kill persons who resist and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power.”
In cases of military occupancy during war or insurrection, the passing of the military lines by persons without permission, the possession of arms and ammunition, the sale of intoxicating liquors, may cause the commander the loss of a battle, and yet these acts may not offend against the local laws. The usage in time of war has been to make regulations covering offenses in violation of the laws of war or of military discipline. Winthrop on Mil. Eaw (2d Ed.) 1310, 1311.
The conclusion is that, assuming the acts of the military court to have been done in accordance with the laws of the state, there is nothing in the exertion of this power which contravenes the right of due process of law guaranteed by the Constitution of the United States. The rule on the defendants to show cause why the writ of habeas corpus should not be issued will be discharged.