In re Moyer

Chief Justice G-abbert

delivered the opinion of the court.

Counsel for petitioner contend that on the facts above stated he is entitled to his discharge because the governor has no power to suspend the privilege of the writ of habeas corpus or declare martial law; or that, if he has such power, he has not assumed to exercise it. Special counsel representing the respondents controverts these propositions, and further contends that this court is without jurisdiction to- proceed further than to deny the relief demanded, or remand the petitioner to their custody. The attorney general claims that the governor, independent of the questions of his power to declare martial law, suspend the privilege of the writ of habeas corpus, or the question of the jurisdiction of this court, is fully authorized under the constitution and laws of the state to suppress insurrection and lawless conditions through the power of the military under his command, and that his subordinate officers actively engaged in suppressing such insurrection by seizing and holding those engaged in acts of violence or in advising and aiding such acts to suppress which the military was called out, cannot be interfered with so long as conditions exist which require the action and the presence of the military to correct. Counsel amici curiae, in their views on these several questions, are divided.

The purpose of proceeding’s in habeas corpus is to determine whether or not the person instituting them is illegally restrained of his liberty, and we shall proceed to determine whether or not, under *164 the facts stated and the laws of this state, the- petitioner is entitled to his discharge, without attempting to pass specifically upon the questions raised by his counsel. Before proceeding, however, to a discussion and determination of this question, two propositions are presented which should be disposed of. It is urged by counsel for petitioner that certain averments in the petition for the writ are not controverted by the return. The latter is not treated as an answer to the application but, rather, as a response to- the writ itself. The averments of the petition are made for the purpose of obtaining the writ, and the respondent, in his answer thereto-, simply seeks to- relieve himself from the imputation of having imprisoned petitioner without lawful authority, and this he does, or, rather, is required to do, under the law, by statements, in the return from which the legality of the imprisonment is to be determined, without regard to the statements of the petition for the writ. In short, he is not required to make any issue on the petition for the writ, but to answer the writ.—In re Chipchase, 56 Kan. 357, 43 P. 264; Ex parte Durbin, 14 S. W. (Mo.) 821; Simmons v. Georgia Iron & Coal Co., 61 L. R. A. 739. .

By the reply it is alleged that, notwithstanding the proclamation and determination of the governor that a state of insurrection existed in the county of San Miguel, that, as a matter of fact, these conditions did not exist at the time of such proclamation or the arrest of the petitioner, or at any other time. By section 5, article IY of our constitution, the governor is the commander-in-chief of the- military forces of the state, except when they are called into actual service of the- United States, and he is thereby empowered to call out the militia to suppress insurrection. It must, therefore, become his duty to determine as a fact when conditions exist in a given *165 locality which demand that in the discharge of his duties as chief executive of the state he shall employ the militia to suppress. This being true, the recitals in the proclamation to the effect that a state of insurrection existed in the county of San Miguel cannot he controverted. Otherwise the legality o-f the orders of the executive would not depend upon his judgment, hut the judgment of another co-ordinate branch of the state government.—In re Boyle, 57 P. (Idaho) 706; Luther v. Borden, 7 How. 1; Ex parte Moore, 64 N. C. 802; Martin v. Mott, 12 Wheat. 19.

By the constitution the supreme executive power of the state is vested in the governor, and he is required to take care that the laws be faithfully executed. — Section 2, article IY. To this end he is made commander-in-chief of the military forces of the state, and vested with authority to call out the militia to execute the laws and suppress insurrection. — Section '5, supra. This authority is supple-, mented by the laws of 1897 — page 204, section 2— whereby it is provided that when an insurrection in the state exists or is threatened, the governor shall order out the national guard to suppress it. These are wise provisions, for the people, in their sovereign capacity, in framing the constitution, as well as the general assembly, recognized that an insurrection might be of such proportions that the usual civil authorities of a county and the judicial department would be unable to cope with it. Through the latter, parties engaged in such insurrection might he punished, hut its prompt suppression could only he secured through the intervention of the militia. Being vested with authority to employ the militia for a specific, purpose, and it appearing from the return to the writ that the governor has called it into requisition for that purpose, his action through his subordinates cannot he interfered with so long as he *166 does not exceed the power which, undef the fundamental law of the state and the acts of the legislature in conformity therewith, he is authorized to exercise.—People v. District Court, 29 Colo. 182 (205).

The crucial question, then, is simply this: Are the arrest and detention of petitioner under the facts narrated illegal! When an express power is conferred, all necessary means may be employed to exercise it which are not expressly or impliedly prohibited. — 1 Story on The Constitution, § 434.

Laws must be given a reasonable construction which, so- far as possible, will enable the end thereby sought to be attained. So with the constitution. It must be given that construction of which it is susceptible which will tend to maintain and preserve the government of which it is the foundation, and protect the citizens of the state in the enjoyment of their inalienable rights. In suppressing an insurrection it has been many times determined that the military may resort to extreme force as against armed and riotous resistance, even to the extent of taking the life of the rioters. Without such authority the presence of the military in a district under the control of the insurrectionists would be a mere idle, parade, unable- to accomplish anything in the way of restoring' order or suppressing riotous conduct. If, then, the military may resort-to the extremé of taking human life in order to suppress- insurrection, it is impossible to imagine upon what hypothesis it can be successfully claimed that the milder means of seizing the persons of those participating in the insurrection or aiding and abetting it may not be resorted to. This is but a lawful means to- the- end to be accomplished. The- power and authority of the militia in such circumstances are not unlike that of the police of a city or the sheriff of a county, aided by his deputies or posse comitatus, in suppressing *167 a riot. Certainly such, officials would be justified in arresting tbe rioters and placing them in jail without warrant, and detaining them there until the riot was suppressed.—Hallett, J., In re Application of Sherman Parker. If, as contended by counsel for peti-~ tioner, the military, as soon as a rioter or insurrectionist is arrested, must turn, him over fi> the civil authorities of the county, the arrest might, and in many instances would, amount to a mere farce. He could be released on bail and left free to again join the rioters or engage in aiding and abetting their action, and if again arrested the same process would have to be repeated, and thus the action of the military would be rendered a nullity. Again, if it be conceded that on the arrest of a rioter by the military he must at once be turned over to the custody of the civil officers of the county, then the military, in seizing armed insurrectionists and depriving them of their arms, would be required to forthwith return them to the hands of those who were employing them in acts of violence, or be subject to an action of replevin for their recovery, whereby immediate possession of such arms would be obtained by the rioters, who would thus again be equipped to continue their lawless conduct. To' deny the right of the militia to detain those whom they arrest while engaged in suppressing acts of violence and until order is restored, would lead to the most absurd results. The arrest and detention of an insurrectionist, either actually engaged in acts of violence or in aiding and abetting others to commit such acts, violates none of his constitutional rights. He- is not tried by any military court or denied the right of trial by jury; neither is he punished for violation of the law nor held without due process of law. His arrest and detention in such circumstances are merely to prevent him from taking part or aiding in a continuation of the condi *168 tions 'which, the governor, in the discharge of his official duties and in the exercise of the authority conferred by law, is endeavoring to suppress. When this end is reached he could no' longer be restrained of his liberty by the military but must be, just as respondents have indicated in their return to the writ, turned over to the usual civil authorities of the county to be dealt with in the ordinary course of justice, and tried for such offense against the law as he may have committed. It is true that petitioner is not held by virtue of any warrant, but if his arrest and detention are authorized by law he cannot complain because those steps have not been taken which are ordinarily required before a citizen can be arrested and. detained.

Nor do these views conflict with section 22 of the Bill of Rights, which provides that the military shall always be in strict subordination to the civil power. The governor, in employing the militia to suppress an insurrection, is merely acting in his capacity as the chief civil magistrate of the state and, although exercising his authority conferred by the law through tire aid of tire military under his command, he is but acting in a civil capacity. In other words) he is but exercising the civil power vested in him by law through a particular means which the state has provided for the protection of its citizens. No case has been cited where the precise question under consideration was directly involved and determined, but in cases where the courts have had occasion to speak of the authority of the military to suppress insurrection and the means which may be employed to that end, it has been stated that parties engaged in riotous conduct render themselves liable to arrest by those engaged in quelling it.—In re Kemp, 16 Wis. 382 (413); Luther v. Borden, supra; Johnson v. Jones, 44 Ill. 142.

*169 The same rule necessarily applies to those found in the zone of the disaffected district who are aiding and abetting the insurrectionists; for such conduct, unless repressed, would result in the continuation of the insurrection, or, at least, render it more difficult to suppress. We therefore reach the conclusion that, independent of the questions of the authority of the governor to declare martial law or suspend the privilege of the writ of habeas corpus, that the petitioner, on the showing made by the return, is not illegally restrained of his liberty. In reaching this conclusion we are not unmindful of the argument that a great power is recognized as being lodged with the chief executive, which might be unlawfully exercised. That such power may be abused is no good reason why it should be denied. The question simply is, does it exist? If so, then the governor cannot be deprived of its exercise. The prime, idea of government is that power must be lodged somewhere, for the protection of the commonwealth. For this purpose laws are enacted and the authority to execute them must exist, for they are of no effect unless'they are enforced. Neither is power of any avail unless it is exercised. Appeals of a possible abuse of power are often made in public debate. They are addressed to popular fears and prejudices, and often given weight in the public mind to which they are not entitled. Every government necessarily includes a grant of power lodged somewhere. It would be imbecile without it. — 1 Story on The Constitution, § 425; 1 Bailey on Jurisdiction, § 296, p. 300.

' Many authorities have been cited by counsel for petitioner which it is not necessary to attempt to review. They are not in conflict with the conclusions reached in this case. They treat of the power of the president to declare martial law; to suspend the privilege of the writ of habeas corpus; of the authority of *170 the military to arrest, try and ‘punish persons not actually in the military service; and when the military may or may not temporarily supersede the usual civil authorities. None of these questions are involved in the present case. In fact, counsel for petitioner practically concede that the questions of the authority of the governor to declare martial law and suspend the writ of habeas corpus are not involved; because, they say, if he has such authority he has not assumed to exercise it; but it is«immaterial what power in this respect may be vested in the governor, or whether he has, in fact, attempted to declare martial law or suspend the writ of habeas corpus. The petitioner was lawfully arrested by the military authorities while the work of suppressing the insurrection in San Miguel county was in progress. Such arrést being lawful, his restraint by respondents until it is suppressed is not illegal.

The writ is discharged, and the petitioner remanded to the custody of the respondents.

Writ Discharged and Petitioner Remanded.