26 F.2d 141 (D.Colo. 1927), 8634, United States ex rel. Palmer v. Adams

Docket Nº:8634.
Citation:26 F.2d 141
Party Name:UNITED STATES ex rel. PALMER et al. v. ADAMS, Governor of Colorado, et al.
Court:United States District Courts, 10th Circuit, District of Colorado

Page 141

26 F.2d 141 (D.Colo. 1927)

UNITED STATES ex rel. PALMER et al.

v.

ADAMS, Governor of Colorado, et al.

No. 8634.

United States District Court, D. Colorado.

1927

The Court: You claim that the Governor has declared a state of martial law in the district?

Mr. Roach: He did not expressly declare a state of martial law to exist. He said an insurrection existed, which the local authorities could not cope with. Neither did Governor Peabody in the Moyer Case say that martial law existed. He merely said that an insurrection existed.

The Court: Do you claim martial law does exist?

Mr. Roach: Well, qualified existence of martial law does exist. As I stated Wednesday, which I think is correct, martial law is a status. It does not depend upon the condition.

The Court: Irrespective of whether the Governor in so many words said that, do you attempt to justify what is going on in Weld and Boulder counties on the ground that those counties are under martial law, and therefore subject to the rules of law applicable to such a condition, or just simply that, irrespective of that, on account of the so-called insurrection, you are justified in the conduct that is complained of?

Mr. Roach: Yes; I think that the existence of the insurrection itself and the actual presence of troops to suppress it justifies this. Now, in the Moyer Case, which Judge Lewis quotes from with apparent approval, it expressly appears from the opinion that Governor Peabody had not declared martial law, and yet they said that in suppressing the state of insurrection the Governor will retain persons, if he honestly believes they participated in the insurrection. In that opinion they said no martial law prevailed.

The Court: They do not even say the Governor had a constitutional right to declare martial law.

Mr. Roach: No; they say, whether it was, was immaterial; that he had the right to arrest and retain persons who appeared to be participating in the insurrection. Likewise

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in the opinion of Justice Holmes the words 'martial law' are not used.

The Court: Do you claim that military rule is in the saddle up there?

Mr. Roach: Oh, no; we do not claim that. We claim that in a sense there is military rule up there; that they are authorized and have the right to go there, where there is a situation which the local authorities cannot cope with. The Governor did not in this case, nor did Governor Peabody, close the courts, or anything of that kind. He simply took the steps he deemed necessary to deal with the existing state of things as he found it.

The Court: Do you claim two powers are existing there side by side; the civil authorities and the local courts, sheriffs and peace officers, and, besides them, there is another government existing, to wit, the military power, if Mr. Newlon cares to exercise the power vested in him; that the people in that community are subjected to two jurisdictions or governments?

Mr. Roach: Not quite that. We do not want to be made to appear as being arbitrary in this matter. I would not say that to the extent Colonel Newlon sees fit, but to the extent the conditions demand. We do not claim the right to exercise any arbitrary power on the part of the Governor, or Colonel Newlon, or the militia. We do claim they have a right to act upon the appearances as they appear at the time.

The Court: Do you contend that any of these prisoners-- if charges were made against them-- I presume they would not be here, unless they had committed violence, or were guilty of some act of violence, justifying their arrest. Do you claim it would be impossible, on account of this state of insurrection, to go into the state court and give those men a trial?

Mr. Roach: If charges were filed against them in the ordinary way, they could give bond, be released, and continue their activities.

The Court: Do you mean to say that they would not be promptly tried in the manner prescribed by the Constitution and laws of Colorado? Suppose you think they have been guilty of assault, or violating the picketing law of this state, or any other criminal law. Do you say it would be unavailing to file an information in the state court of that county and proceed to a prompt trial, and that in case of their conviction they would not be sent to the penitentiary?

Mr. Roach: We contend that the Governor believes, and with reason, that the ordinary course of civil process would not be adequate to cope with that situation. They could be released on bail, and, if arrested again, they could get out on bail.

The Court: They would have to go to trial, would they not? Then they would not be out.

Mr. Roach: They would be out pending the trial, so far as that goes. * * *

The Court: What would you say as to my question as to whether two forms of government exist side by side in these towns?

Mr. Perry: I believe there are. I believe the civil government is existing by virtue of the fact that the military government has not seen fit to supersede it.

The Court: Do you believe you could close up the court?

Mr. Perry: I believe we could. The order specifically says: 'You shall use such means as you see fit, acting independently and in conjunction with'--

The Court: Is not it a fact that the courts of that county are open'

Mr. Perry: Yes, sir.

The Court: By permission of Colonel Newlon, or independent of Colonel Newlon?

Mr. Perry: I believe at this time they are acting by virtue of the authority which they have because he has not chosen at any time to supersede that authority.

The Court: In other words, he has the power, you think, under the order of the Governor, to say what offenders in those counties shall be tried by the state court, and what offenders shall be held by him without trial and without charge under the particular conditions?

Mr. Perry: I don't know whether that could really be answered. In this particular case-- the only real interest to him-- he has decided that these are the people who have done the things which have caused the military forces to come up;

that there is no adequate remedy in the event they are placed in the state court.

The Court: What have they done?

Mr. Perry: In accordance with the return, it says they have been active in fomenting and keeping alive the insurrection.

The Court: Anything else?

Mr. Perry: No, sir; I think not.

Guy D. Duncan, of Denver, Colo., R. W. Henderson, of Bakersfield, Cal., and Floyd F. Miles, Carle Whitehead, and Albert L. Vogl, all of Denver, Colo., for petitioners.

W. L. Boatright, Atty. Gen., Charles Roach, Asst. Atty. Gen., and Lewis De R. Mowry and William O. Perry, both of Denver, Colo., for respondents.

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SYMES, District Judge.

The petition in this case is rather voluminous. It contains a good deal of irrelevant matter, and brings before the court the fact that a grave industrial conflict has existed in this state for some time. Such conflicts are to be deplored. This strike has been fomented by a type of irresponsible agitators with whom the court has absolutely no sympathy. They advocate doctrines that are irreconcilable with the principles of our Constitution and economic organization, and which, if allowed to prevail, means the destruction of the American government. An armed clash occurred in Weld county, and the ordinary officers of the law, showing every restraint possible, were finally forced to fire, killing and wounding a few of the misguided men urged on by agitators from outside our borders. The officers were fully justified, and the court commends their attitude in forcibly resisting a mob attempting to invade private property. Anything that can be done by lawful means to deal with such agitators, who are to blame, rather than the misguided men who allow themselves to be badly led, should meet with the approval of every law-abiding citizen. I have no sympathy with that organization, its principles or leaders. So far as I am informed, they do not work in the mines, never did an honest day's labor, but, on the contrary, live by fomenting of trouble. They are astute enough to step out of the way when any real clash with the authorities occurs, leaving the results to be borne by their misguided followers. These remarks, however, are not pertinent to the issues of the case.

The right of the petitioners to apply to this court for a writ of habeas corpus cannot be doubted. The issue presented by the return involves a grave federal question. It is not whether petitioners' rights under the state...

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