United States v. Adams

• Decision Date: 31 December 1927
• Docket Number: No. 8634.,8634.
• Citation: 26 F.2d 141
• Parties: UNITED STATES ex rel. PALMER et al. v. ADAMS, Governor of Colorado, et al.
• Court: U.S. District Court — District of Colorado

26 F.2d 141 (1927)

UNITED STATES ex rel. PALMER et al. v. ADAMS, Governor of Colorado, et al.

No. 8634.

District Court, D. Colorado, at Denver.

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.

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 Constitution have been violated, but has due process of law been accorded them under the Fourteenth Amendment of the Constitution of the United States. The statute says (section 461, United States Code; 28 USCA § 461), that on the return to the writ the court or the judge shall proceed in a summary way to determine the facts of the case, hear the testimony and arguments, and thereupon dispose of the matter as law and justice require. Respondents have offered no evidence. The duty of the court is fully elaborated in the Royall Case, 117 U. S. 241, 6 S. Ct. 734, 29 L. Ed. 868, and the Moore Case, found in 261 U. S. 86, 43 S. Ct. 265, 67 L. Ed. 543, which went up from this circuit. In the latter case defendants were indicted and tried for murder. All their rights were apparently exercised at the trial; that is, a jury impaneled, argument had, and testimony taken, followed by conviction, appeal, and sentence to death. Thereafter it was represented to the local United States court that the trial was a mockery, because a mob was in control of the situation, surrounding the courthouse; that the jury was intimidated and the whole proceedings carried on under the pressure of this unlawful assembly. The United States Supreme Court said, in passing upon a demurrer to these facts, that in view of the nature of the allegations it was the duty of the federal court to investigate and see whether or not there was due process of law, irrespective of the form that had been observed. It sent the case back to the lower court, with directions to investigate the facts.

Now, what situation is presented here, eliminating the allegations that are not material? Practically an agreement of facts that the Governor of the state called out the state militia, and sent them into these two counties under the executive or military order referred to, which vested in their commander authority to suppress the alleged insurrection by whatever means he in his good judgment deemed best. The order was not attested by or filed with the secretary of state, as state papers are, nor issued as a proclamation. It was issued direct to the adjutant general.

It is agreed that no attempt was made to declare martial law, to suspend the writ of habeas corpus, or to put aside the civil authorities of the two counties. It has never been decided that the Governor of Colorado has the right to declare martial law. That question was not passed upon in the Moyer Case, 35 Colo. 159, 85 P. 193, 12 L. R. A. (N. S.) 979, 117 Am. St. Rep. 189; Id., 35 Colo. 154, 91 P. 738, and has not been decided in any case cited. It is immaterial, however, because the state's counsel, with commendable frankness toward the court, admit that martial law has not been declared and does not exist in these two counties. They concede that the state courts in the affected district are functioning the same as before this alleged emergency arose, and as they are in other parts of the state; that criminal trials are taking place, offenders being convicted, and all the ordinary processes of local civil government going on unimpeded. So we have this situation: Alongside of the regular form of government, a body of 35 militiamen, acting under this order and performing their duties as men who wear the uniform should, are exercising arbitrary power, arresting people and holding them without charges, as the court is informed, that they have violated the law, committed any act of violence, or resisted or defied the peace officers of the state. The return does not set forth a single fact to enlighten this court as to conditions that formerly or now exist in the two counties in question. It simply alleges that in the exercise of honest judgment the Governor deems it for the best interests of the community, and the preservation of law and order, to detain the petitioners without filing charges, admitting them to bail, or intent to submit them to a military or the local court for hearing and trial.

So we have presented this proposition for decision. The Governor has the power to grant at will a roving commission to a body of state militia to go into any part of the state that he may see fit, arrest and detain citizens, and deprive them indefinitely of their liberty and the rights guaranteed them by the Federal Constitution, actuated, as in this case, by the best of motives. It is admitted the soldiers have not attempted to set aside the local state government, or take over the courts, but simply that they have the right to set up a separate and independent government or tribunal, make arrests in such cases as they may see fit to handle, and do such acts as in their uncontrolled discretion are necessary to suppress what they claim is an insurrection, regardless of the courts and the Constitution. It is not stated what the insurrection or the...