Ex parte McDonald
| Decision Date | 08 October 1914 |
| Docket Number | 3540,3541,3542,3545,3546,3547,3551. |
| Citation | 143 P. 947,49 Mont. 454 |
| Parties | EX PARTE MCDONALD ET AL. IN RE GILLIS. |
| Court | Montana Supreme Court |
Petitions for writs of habeas corpus by Mitchell McDonald and others united with a petition for the same writ by Dan Gillis. Writs denied as to the first petitioners, and granted as to the last; the petitioner being remanded for trial.
I. G Denny and Maury, Templeman & Davies, all of Butte, for petitioners.
Jesse B. Roote, of Butte, D. M. Kelly, Atty. Gen., and W. H Poorman, Asst. Atty. Gen., for respondents.
On September 1, 1914, Hon. S. V. Stewart, Governor of this state, issued his executive proclamation, as follows:
Proclamation.
Whereas it has become apparent that conditions of lawlessness and defiance of authority prevail in the county of Silver Bow, state of Montana, and that combinations to resist the execution of process exist in said Silver Bow county, and that the power of the county has been exerted and has not been sufficient to enable the officers having process to execute it; and
Whereas, it has been represented to me by properly constituted authorities that the peace officers of said county are unable to secure service of process and compliance with the law; and
Whereas, it is made sufficiently to appear to me that peace and quiet cannot be re-established in said county of Silver Bow without the aid of some force other than the present constituted authority of said county:
Now, therefore, I, S. V. Stewart, as Governor of the state of Montana, under and by virtue of the authority vested in me by the Constitution and the statutes of said state, do hereby proclaim the said county of Silver Bow, state of Montana, to be in a state of insurrection, and do hereby declare that said Silver Bow county, state of Montana, be and is hereby under martial law, and under the jurisdiction of the military authorities of said state of Montana; and such military forces as may be ordered into service to enforce the provisions of this proclamation shall be under the command of Major Dan J. Donohue. This proclamation to continue until the same shall be revoked or modified.
And I do hereby call upon all citizens of said county and demand of them that they refrain from any and all acts that may in any way contribute to a continuance of disorder. They should desist from participating in gatherings upon the streets or in public places, mindful always of the danger that attends the assembling of large crowds of the idle and curious, and of the fact that the innocent bystander is always in peril in the event of a clash between the lawless and the forces of law and order. And I appeal to the sober-minded, peace-loving citizens of said county for co-operation with the proper authorities in any manner that will tend to a restoration of peace and quiet in that community.
The forces of the state have been sent into said county upon the urgent demands of those who are entitled to be heard in an appeal for protection of life and property, and for the adjustment of conditions that have become intolerable and a stigma upon the fair name of our state. In the pursuit of this end, these forces shall know neither organization nor faction, their sole aim being the re-establishment of peace in the county of Silver Bow. In the accomplishment of this purpose they should have the moral support of every person who values the stability of government and the safety of life and property.
[The Great In witness whereof I have hereunto set my hand and caused the
Seal of great seal of the state to be affixed.
[Signed] S. V. Stewart.
By the Governor:
A. M. Alderson, Secretary of State.
In accordance with the above proclamation, military forces of the state under the command of Major Dan J. Donohue arrived in Silver Bow county, took military possession thereof, and such military possession has since continued and still continues. On the 12th day of September, Mitchell McDonald, Owen Smith, Joseph Bradley, E. W. Malone, Ed Ross, and James Chapman filed in this court their petitions for writs of habeas corpus, alleging, in substance, that they were being unlawfully detained and restrained of their liberty by the Governor and by Major Donohue and certain other military officers of the state who were named as respondents, in that the petitioners had been arrested without warrant and were being held without bail, to be tried, without a jury, before an alleged court or tribunal set up by the military authorities, upon charges to the petitioners unknown, and this notwithstanding they had infringed no law and were not members of the organized militia of the state. To these petitions respondents made return, setting forth their official character, the proclamation of the Governor, and also a proclamation made by Major Donohue upon his arrival in Silver Bow county with the military forces, and alleging that said county was then in a state of insurrection; that the emergencies of the situation demanded the arrest and detention of the petitioners for the successful accomplishment of the purpose for which said military authorities had been sent into Silver Bow county by the Governor, "such detention for the present being necessary to prevent the petitioners from committing overt acts in defiance of the military authority of said military forces"; that the said petitioners were leaders of those engaged in insurrection, and had been, and if discharged from arrest would be, active participants in fomenting and keeping alive the condition of insurrection existing in Silver Bow county; and that it is the purpose of the respondents to release and discharge petitioners from military arrest as soon as that can safely be done with reference to the suppression of the existing state of insurrection, and then surrender them to the civil authorities, to be dealt with in the ordinary course of justice after such insurrection is suppressed. Upon the return and the evidence taken at the hearing, this court made an order denying the release of petitioners, with leave to repetition after 30 days, if at that time they had not been delivered to the civil authorities and the courts were then open and able to execute their process. The reasons for that order will be set forth in the course of this opinion.
Thereafter, and on September 24, 1914, Dan Gillis filed his petition for a writ of habeas corpus, alleging unlawful detention and restraint by the same respondents, and that such detention and restraint are had and claimed by virtue of a commitment issued on September 21, 1914, by Jesse B. Roote, as major and judge of a certain summary court set up by the military authorities in Silver Bow county, after an alleged trial before said Jesse B. Roote without a jury, upon a charge of assaulting and resisting an officer, and in which said proceeding said Jesse B. Roote assumed to adjudge the petitioner guilty and to render judgment that he be imprisoned in the county jail in Silver Bow county, or any prison in said county, for the term of 11 months and pay a fine of $500, and all this notwithstanding all of the district courts of said Silver Bow county were during the period covered by said proceeding, and since have been, open and actively attending to business, including the trial of causes. The effect of the return to this petition is to admit the detention of the petitioner under the commitment above mentioned, and such detention is sought to be defended upon the following grounds:
That by the proclamation of the Governor martial law became established in Silver Bow county; that by the proclamation of Major Donohue the summary court above referred to was created, "and it was ordered that all acts which would constitute an offense or offenses under the penal laws of Montana or the ordinances of the city of Butte, as well as any act which would hinder or tend to hinder, delay, or obstruct the work of the military forces in restoring order, should be punishable as offenses under the martial law, and that such punishments should be inflicted as in the judgment of said officer constituting said summary court in cases of minor offenses should be suitable." It is also respectfully claimed "that the Supreme Court of Montana is without jurisdiction in the premises to discharge said Dan Gillis from arrest and imprisonment by reason of the facts and things hereinbefore recited."
It will be readily noted that the position taken by the respondents in the Gillis case is much broader than that presented by the returns in the causes first presented. The respondents now maintain:
"That the Governor, as the chief executive officer of the state, has and had the authority, under the Constitution and statutes of the state, to issue the proclamation referred to, and to order the state troops into the district described therein, and that when the proclamation, as is the case here, declares absolute martial law, that of itself has the effect of suspending all governmental civil tribunals, and that the supreme authority and responsibility of government is thereby vested in the military forces, * * * and such military forces, in the discharge of the duties resting upon them, may establish courts for the trial of offenders who violate military orders or who violate the laws of the state within the troubled zone."
The questions thus involved are extremely grave and far-reaching in effect.
A. That the Governor had the authority to proclaim a state of insurrection to exist in the county of Silver...
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