State ex rel. Mays v. Brown

POJTENBAGER, JUDGE :

L. A. Mays and S. F. Nance, in the custody of M. L. Brown, warden of the Penitentiary of this State, under sentences of a Military Commission, appointed by the Governor, to sit in a territory corresponding in area and boundaries with the magisterial district of C'abin Creek, in the County of Kanawha, in which the ■said governor had declared a state of war to exist, by proclamation duly issued and published, seek discharges and liberation upon writs of habeas corpus duly issued by this Court.

Upon these writs, lack of authority in the governor to institute, in cases of insurrection, invasion and riot, martial law is denied in argument. A further contention is that his power to do so extends only to the inauguration or establishment of a limited or qualified form of such law, subordinate to the civil jurisdiction *521 •and power to a certain extent; and certain provisions of the state Constitution are relied upon as working this restraint upon the executive power, among them the provision of section 4 of Article III., saying: “The privilege of the writ of habeas corpus shall not be suspended,” and the provision of section 12 of the same article, saying: “The military shall be subordinate to the civil power; and no citizen, unless engaged in the military service of the state, shall be tried or punished by airy military court, for any offense that is cognizable by the civil courts of the state.” A minor question is, whether offenses committed immediately before the proclamation of martial law, but connected with the insurrection and operative therein, may be punished by a military commission, acting within the period of martial occupation and rule.

All agree as to the character and scope of martial law, unrestrained by constitutional or other limitations. The will of the military chief, in this instance the governor of the state, acting as commander-in-ehief of the army, is, subject to slight limitations, the law of the military zone or theater of war. It is sometimes.spoken of as a substitute for the civil law. It is said also that the proclamation of martial law ousts or suspends the civil jurisdictions. These expressions are hardly accurate. The invasion or insurrection sets aside, suspends and nullifies the actual operation of the Constitution and laws. The guaranties of the Constitution as well as the common law and statutes, and the functions and powers of the courts and officers, become inoperative by virtue, of the disturbance. The proclamation of martial law simply recognizes the status or condition of things resulting from the invasion or insurrection and declares it. In sending -the army into such territory to occupy it and execute the will of the military chief for the time being, as a means of restoring peace and order, the executive merely adopts a method of restoring and making effective the Constitution and laws within that territory, in obedience to his sworn duty to support the Constitution and execute the laws.

This power is a necessary incident of sovereignty. It is necessary to the preservation of the state. Subject to the jurisdiction and powers of the federal government, as delegated or surrendered up by the provisions of the federal Constitution, this *522 state is sovereign and has the powers of a sovereign state. Like all others, it must have the power to preserve itself. Where that power resides and how it is to be exercised are questions about which there has been some difference of opinion among jurists and statesmen. Whether the executive, without legislative authority, may exercise it, need not be discussed. Section 92 of chapter 18 of the. Code confers upon the governor authority to declare a state of war in towns, cities, districts and counties in which there are disturbances by invasion, insurrection, rebellion or riot. Moreover, section 12 of Article VII. of the Constitution itself seems to confer such authority upon the governor, saying he “may call out” the military forces “to execute the laws, suppress insurrection and repel invasion.” lienee, we may say the inauguration of martial law in any portion of this state by proclamation of the governor has both constitutional and legislative sanction in express terms.

The provisions against the suspension of the writ of habeas corpus and trial of citizens by military courts for offenses cognizable by the civil courts cannot, in the nature of things, be aetually operative in any section in which the Constitution itself and the functions of the courts have been ousted, set aside or obstructed in their operation by an invasion, insurrection, rebellion or riot. In such cases, the constitutional guaranties of life, liberty and property have ceased to be operative and efficacious. The lives, liberty and property of the people are at the mercy of the invading, insurrectionary, rebellious or riotous element in control. Their will and' desires, not the Constitution and laws, rule and govern. There is no court with power to grant or on-force the writ of habeas corpus within the limits of such territory. There is no court in which a citizen can be fried, nor any whose process can be made effective for any purpose. No doubt the Constitution and laws of the state are theoretically or potentially operative but they are certainly not in actual and effective operation. The exercise of the military power, disregarding for the time being the constitutional provisions relied upon, is obviously necessary to the restoration of the effectiveness of all the provisions of the Constitution, including those which are said to limit and restrain that power.

To ascertain the extent and purpose of the incorporation of *523 these restrictive provisions of the Constitution, they must be read in the light of principles developed by governmental experience in all ages and countries and universally recognized at the date of the adoption of the Constitution and not expressly abolished or precluded from operation by any terms found in the instrument. In the interpretation of contracts, statutes and constitutional provisions, words are often limited and restrained to a scope and effect somewhat narrower than their literal import, upon a presumption against intent to interfere with or innovate upon well established and generally recognized rules and principles of public policy not expressly abolished. Railway Co. v. Conley & Avis, 67 W. Va. 129, 165; Reeves v. Ross, 62 W. Va. 7; Brown v. Gates, 15 W. Va. 131; Cope v. Doherty, 2 DeG. & J. 614; Dillon v. County Court, 60 W. Va. 339. Hothing can be higher in character or more indispensable than this power of self-preservation. The experience of all civilization has demonstrated its necessity as an incident of sovereignty. In the organization of the state, its citizens likely did not intend to omit or dispense with a power vital to its very existence or the maintenance and efficiency of its powers, under circumstances which inevitably arise in the life of every state. Hence there is strong ground for a presumption in favor of the retention of the power in question, which finds support in other constitutional provisions, authorizing the maintenance of a military organization, and the use of it by the executive in the repulsion of invasion and suppression of insurrections and riots. Art. VII., sec. 12. Ho rebuttal of the presumption nor abolition of this sovereign power is found in any express terms of the Constitution.

The guaranties of supremacy of the civil law, trial by the civil courts and the operation of the writ of habeas corpus should be read and interpreted so as to harmonize with the retention in the executive and legislative departments of power necessary to maintain the existence of such guaranties themselves. It is reasonable and logical. Otherwise the whole scheme of government may fail. So interpreted, they have wide scope and accomplish their obvious purpose. The attempt to extend them further would be futile and result in their own destruction. The interruption is of short duration. It is only while military government is used as an instrument of warfare that the commander’s will is law. New Orleans v. Steamship Co., 20 Wall. 387; *524 Ex parte Milligan, 4 Wall. 2, 127. That a military occupation of a territory in a state of peace and order differs radically from the prosecution of a war in the same territory, is well established. Ex parte Milligan, cited. In the former case, the military is subordinate to the civil power, no matter whether the occupancy under tranquil conditions precedes or follows the military operations. Martial law is operative only in such portions of the country as are actually in a state of war and continues only until pacification. Ordinarily the entire country is in a state of peace, and, on extraordinary occasions calling for military operations, only small portions thereof become theaters of actual war. In these disturbed areas, the paralyzed civil authority can neither enforce nor suspend the writ of habeas corpus, nor try citizens for offenses nor sustain a relation of either supremacy or subordination to the military power, for in a practical sense it has ceased. But in all the undisturbed, peaceable and orderly sections, the constitutional guaranties are in actual operation and cannot be set aside. Ex parte Milligan, cited. In most, if not all, of the instances in which the civil courts have treated sentences of military commissions as void, the commissions acted and the sentences were pronounced in tranquil territory, not covered by any proclamation of martial law, in which there was no actual war, and in which the Constitution and laws were in full and unobstructed operation. An insurrection in a given portion of a state or an invasion thereof by a foreign force does not produce a state of war outside of the disturbed area. A nation may be at war with a foreign power and yet have no occasion to institute martial law anywhere within its own boundaries, as in the case of the United States in the war with Spain. So, during the civil war, there were vast areas and whole states in which there was no actual war.

It seems to be conceded that if the governor has the power to declare a state of war, his action in doing so is not reviewable by the courts. Of the correctness of this view, we have no doubt. The function belongs to the executive and legislative departments of the government, and is beyond the jurisdiction and powers of the courts. There is room for speculation, of course, as to the consequences of an arbitrary exercise of this high sovereign power, but the people, in the adoption of their Constitution, may *525 well be supposed to have proceeded upon a well grounded presumption against any such action, and assumed that the evil likely to flow from an attempt to hamper and restrain.the sovereign power in this respect might largely outweigh such advantages as could be obtained therefrom. We are not to be understood as saying there would be a lack of remedy in such case. The sovereign power rests in the people and may be exerted through the legislature to the extent of the impeachment and removal from office of a governor lor acts of usurpation and other abuses of power.

Power to establish a military commission for the punishment of offenses committed within the military zone is challenged in argument; but we think such a commission is a recognized and necessary incident and instrumentality of martial government. A mere power of detention of offenders may be wholly inadequate to the exigencies and effectiveness of such government. How long an insurrection or a war may last depends upon its character. Such insurrections as are likely to occur in a state like this are mild and of short duration. But no man can foresee and foretell the possibilities, and a government must be strong enough to cope with great insurrections and rebellions as well as mild ones.

That the courts'of Kanawha county sit within the limits of that county and outside of the military zone does not preclude the exercise of the powers here recognized as vested in the executive of the state. These petitioners were arrested within the limits of the martial zone. There the process of the courts did not and could not run during the period of military occupation, and presumptively the state of affairs in that district, at the time of the military occupation and immediately before, was such as to pro-elude the free course and effectiveness of the civil law and the process of the court, however effective they may have been in other sections of Kanawha county. The Constitution and laws themselves admit the obvious inadequacy and insufficiency of ordinary process and penalties in cases of insurrection by authorizing military suppression thereof. Participants therein arrested and committed to the civil authorities could easily find means of delaying trial and liberated, on bail, return to the insurrectionary camp and continue to render aid and give encouragement by un *526 lawful acts; and demonstration of their ability to do so would itself contribute to the maintenance of the uprising. The civil tribunals, officers and processes are designed for vindication of rights and redress of wrongs in times of peace. They are wholly inadequate to the exigencies of a state of war, incident to an invasion or insurrection. So the legislature evidently regards them, since it expressly authorizes the governor “in his discretion” to declare slale of war in towns, cities, districts and counties. He is not required by any principle of international or martial law, the Constitution or statute to institute it, when proper by counties. On the contrary, the statute authorizes it as to a town, a city or a district, and he is not limited to towns, cities and ■districts in which the courts sit in times of peace, nor forbidden to put a town, city or district of a county under martial law rule by the sitting of courts elsewhere in the county. Section 2 of chapter 17 of the Virginia Code of 1860 was the same in principle, authorizing the governor to call forth the militia to surpress combinations for dismembering the state or establishing a separate government in any part of it, or for any other purpose, powerful enough to obstruct in any part of the state the due execution of the laws thereof, in the ordinary course of proceeding. The Virginia constitutional guaranties were then about the same as ours. There was a provision against suspension of the writ of habeas corpus “in any case.” Art. IV., sec. 15. in these statutes, are found legislative constructions of constitutions, harmonizing with the conclusions here stated as to the relation and purposes of the constitutional provisions and also the power, to place a part of a county under martial rule, notwithstanding the courts may be open in some other part thereof.

The offenses for which the petitioners were punished were committed in an interim between two successive periods of martial government. The first proclamation was raised about the middle of October, and the disturbances which had occasioned it immediately broke out again, and these offenses were of the kind and character which had made the occupation necessary. About the middle of November there was a second proclamation of a state of war. Just a few days before this second declaration, these offenses were committed, and the offenders were found within the military zone, and were arrested, tried and convicted. If the of *527 fenses had been wholly disconnected' with the insurrection and not in furtherance thereof, there might he doubt as to the authority of the military commission to take cognizance of them, although there are authorities for such jurisdiction and power as to any sort of offense committed within the territory over which martial law has been declared and remaining unpunished at the time of the declaration thereof.

We are not reviewing the sentences complained of, nor ascertaining or declaring their legal limits. Our present inquiry goes only to the question of legality of the custody of the respondent at the present time and under the existing conditions. The territory in which the offenses were committed is still under martial rule. It suffices here to say whether the imprisonment is, under present conditions, authorized by law, and we think it is. We are not called upon to say whether the end of the reign of martial law in the territory in question will terminate the sentences and upon that question we express no opinion.

Upon the facts set forth in the petition, wc are of the opinion that the petitioners are in lawful custody, and we therefore remand them to the custody of the respondent.

Petitioners Remanded.