In re Moyer

• Decision Date: 06 June 1904
• Citation: 85 P. 190,35 Colo. 159
• Parties: In re MOYER.
• Court: Colorado Supreme Court

85 P. 190

35 Colo. 159

In re MOYER.

Supreme Court of Colorado

June 6, 1904

Application for a writ of habeas corpus by Charles H. Moyer. Writ denied.

On behalf of Charles H. Moyer a petition was presented representing that he was illegally restrained of his liberty in the county of San Miguel, by Sherman Bell and Buckley Wells. A writ of habeas corpus was issued directed to these parties, who, on the day it was returnable produced the petitioner in court, and at the same time made a return to the writ, whereby the jurisdiction of this court to further proceed in the matter was challenged. The averments upon which the claim of want of jurisdiction is based are to the effect that prior to the detention of petitioner, his excellency, Gov. Peabody, by proclamation, had determined and declared the county of San Miguel to be in a state of insurrection, and that by reason of lawlessness disturbances, and threatened acts of violence, the civil authorities of the county were unable to cope with the situation. In pursuance of this proclamation, the Governor directed the respondent, Sherman M. Bell, adjutant general of the state of Colorado, to forthwith order out such troops as in his judgment might be necessary, and report to the sheriff of San Miguel county, and that he use such means as in his judgment might be right and proper to restore peace and good order in the county, and enforce obedience to the Constitution and laws of the state. In pursuance of this order General Bell proceeded to the county of San Miguel in charge and command of members of the Colorado National Guard, and ever since has been, and now is, actively engaged in quelling the disturbances which called forth the proclamation and the executive order above referred to; that in the discharge of these duties he became convinced that petitioner had been, and if discharged from arrest would continue to be, an active participant in fomenting and keeping alive the condition of insurrection existing in the county that he was and is a prominent leader of those engaged in the acts of insurrection and crime to suppress which the National Guard was called into requisition; that for these reasons he caused the arrest, apprehension, and detention of the petitioner in the county of San Miguel, and does now restrain, detain, and imprison him for the reasons and upon the grounds above set forth; that it is his purpose and intention to release and discharge petitioner from military arrest as soon as the same can be safely done with reference to the suppression of the existing state of insurrection in the county, and then surrender him to the civil authorities to be dealt with in the ordinary course of justice, after such insurrection is suppressed. It is further stated that the Governor has issued orders and instructions to General Bell not to surrender or release the military custody of petitioner during the existence and continuing condition of affairs in the county of San Miguel, as mentioned and set forth in the proclamation and executive order of his excellency. It is also stated that the respondent Buckley Wells is a subordinate military officer, under the direct command of Gen. Bell, and that his acts in the premises with reference to the arrest and detention of petitioner have been by virtue of express commands in that behalf issued to him by his superior officer. To this return is appended the certificate of Gov. Peabody to the effect that the matters and things set forth in the return are true, and that the arrest and present detention of petitioner were had and done in pursuance of the authority conferred upon him by the Constitution of the state; that the acts of Gen. Bell in arresting and detaining petitioner were done by his express sanction as Governor of the state and commander in chief of its military forces; and that the insurrection recited in his proclamation has not as yet been fully suppressed. To this return a reply was filed by petitioner in the nature of a general demurrer, to the effect that it is wholly insufficient in law to constitute any justification whatsoever, either for the arrest, imprisonment, or further detention of petitioner. The reply also alleges that neither on the date of the proclamation and order of the Governor, nor at any other time, has there been a state of insurrection in the county of San Miguel.

Steele J., dissenting.

Richardson & Hawkins, for petitioner.

N. C. Miller, Atty. Gen., and John M. Waldron, I. B. Melville, and H. J. Hersey, Asst. Atty. Gen., for respondents.

GABBERT. C.J. (after stating the facts).

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 proceedings 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 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 (Mo. Sup.) 14 S.W. 821; Simmons v. Georgia Iron & Coal Co. (Ga.) 43 S.E. 780, 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, art. 4 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 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 be controverted. Otherwise, the legality of the orders of the executive would not depend upon his judgment, but the judgment of another co-ordinate branch of the state government. In re Boyle (Idaho) 57 P. 706, 45 L.R.A. 832; Luther v. Borden, 7 How. (U. S.) 1, 12 L.Ed. 581; Ex parte Moore, 64 N.C. 802; Martin v. Mott, 12 Wheat. (U. S.) 19, 6 L.Ed. 537.

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, art. 4. 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 supplemented by Laws 1897, p. 204, c. 63, § 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 be punished, but its prompt suppression could only be secured through the intervention of the militia. Being vested with authority to employ the militia for a specific purpose, and it appearing from the...