Moyer v. Peabody

• Decision Date: 19 November 1906
• Docket Number: 4,707.
• Citation: 148 F. 870
• Parties: MOYER v. PEABODY et al.
• Court: U.S. District Court — District of Colorado

148 F. 870

MOYER v. PEABODY et al.

No. 4,707.

United States Circuit Court, D. Colorado.

November 19, 1906

The plaintiff alleges in the declaration that he is a citizen of the United States, and a citizen and resident of the state of Colorado; that the defendants also are citizens of the United States, and citizens and residents of the state of Colorado that he 'brings this action in this court against said defendants under the Constitution of the United States, and under section 1979 of the Revised Statutes of the United States by reason of the fact, as will more fully appear hereinafter in this complaint, that the defendants, under color of the Constitution of Colorado, and the laws thereof subjected this plaintiff to the deprivation of rights privileges and immunities secured to him by the Constitution and laws of the United States'; that the defendant Peabody, was elected Governor of said state in November 1902, for a term of two years, beginning January 13, 1903; that the defendant, Bell, was appointed adjutant general of the National Guard of the state of Colorado, and the defendant, Wells, was appointed captain of a company in said guard by the defendant Peabody, as Governor; that the defendant Peabody, as commander-in-chief of the said militia, and the defendant Bell, as adjutant general, directed and caused a portion of the said National Guard of Colorado to assemble in the city of Telluride, San Miguel county, Colorado; that, while so assembled, said guard was under the direction, orders and control of the defendant Peabody, as commander-in-chief, and the defendant Bell, as adjutant general, and the defendant Wells, as captain; that on March 30, 1904, the defendants, acting as officers of said National Guard, gave directions to, and caused a squad of men, being a part of said National Guard, to arrest the plaintiff and imprison him in the city jail in the town of Telluride; that the plaintiff was confined and kept, forcibly and against his will, from March 30, 1904, until June 15, 1904, and with force and arms was restrained of his liberty and subjected to hardships, privations, humiliation, and disgrace; that the defendants claimed the right to arrest and detain the plaintiff by virtue of their being officers of the state of Colorado, and under the laws of Colorado, to wit, section 2 of article 4 of the Constitution of Colorado, which is as follows: 'the supreme executive power of the state shall be vested in the Governor, who shall take care that the laws shall be faithfully executed.' And section 5 of article 4 of said Constitution, as follows: 'The Governor shall be commander-in-chief of the military forces of the state, except when they shall be called into actual service of the United States. He shall have power to call out the militia to execute the laws, suppress insurrection and repel invasion'; that defendants claimed other statutes of Colorado gave them also the right to arrest, imprison, and detain the plaintiff, but that plaintiff is unable to find said statute; that after the arrest and detention of the plaintiff by the defendants he made application to the Supreme Court of the state of Colorado, the highest court and court of last resort in said state, for a writ of habeas corpus, in which application the plaintiff asserted that he was deprived of his liberty contrary to the laws of the state of Colorado, and of the laws of the United States, and said court allowed the writ to issue. That in their return to said writ Peabody, Bell, and Wells did not claim that the courts of said state, or in any part of said state, were overthrown and that a trial could not be had to determine any charge of crime made against the plaintiff; that Adjutant General Bell, in his return to the writ, asserted that he was the adjutant general of the National Guard of Colorado; that the Governor of Colorado had given him orders to arrest and detain the plaintiff, and not to release him under any circumstances until further orders from the governor; that he said Wells was at the time a subordinate military officer under the direct command of said Bell, and the defendant Peabody certified to the correctness of said statement in Bell's return to the writ; and the said Peabody also stated that he was acting in his official capacity under the laws of Colorado relating to the arrest, detention, and imprisonment of the said Moyer; that the Supreme Court of the state of Colorado refused to admit Moyer to bail, and finally rendered a judgment in said habeas corpus proceedings to the effect that the Governor of the State, and the other respondents therein might, as officers of the state of Colorado, under the authority vested in them under the Constitution and the sections above quoted, and the statutes of said state, hold and detain said Moyer until, in their judgment, they saw fit to release him; that this was deprivation of liberty without due process of law; that by the acts and decisions of said Supreme Court plaintiff cannot obtain in the courts of Colorado any redress for the wrongs so inflicted upon him; that said decision is contrary to the provision of the Constitution and the laws of the United States relative to personal rights; that the arrest and imprisonment of the plaintiff, guaranteed to him by the Constitution and the laws of the United States; that the plaintiff was a law-abiding citizen; that he was not a member of the National Guard of the state of Colorado; that at no time during his imprisonment was he accused of the commission of a crime, by complaint under oath lodged in any court of competent jurisdiction; that he was prevented from having access to the courts, and from the privilege of demanding in any court the nature of the cause of the accusation under which he was held. He asks damages.

To this declaration the defendants have filed demurrer, for that, because:

(1) This court has no jurisdiction of the action; (2) the declaration does not state facts sufficient to constitute a cause of action against the defendants, or either of them; (3) that the matters in controversy herein are res adjudicata, and in aid thereof the demurrants crave oyer of the record and opinion of the Supreme Court of this state in the habeas corpus proceeding above referred to.

On argument of the demurrer it was agreed that the proceedings of the Supreme Court of Colorado in the habeas corpus case should be considered on the issue raised by the demurrer.

Record in habeas corpus case: The petition for the original writ of habeas corpus, filed in the Supreme Court of Colorado on April 15, 1904, sets forth a proclamation issued by the defendant, James H. Peabody, as Governor, on March 23, 1904, wherein it is proclaimed and declared that the county of San Miguel in the state of Colorado, is in a state of insurrection and rebellion, by reason of the fact, as therein recited, that armed bodies of men, both within and without said county, acting in conjunction, and about to unite, had threatened violence to the citizens of said county, and destruction of property. It further appears from the petition that said Governor, on the day of issuing said proclamation, by written order, directed the defendant Bell, as adjutant general, to order out such troops as, in his judgment, necessary, and to report forthwith to the sheriff of said San Miguel county, and that he use such means as may be necessary, acting either in conjunction with or independent of the civil authorities, to restore peace and good order in said community, and to enforce obedience to the Constitution and laws of the state. It is then alleged that about three hundred men, constituting a portion of the National Guard, proceeded to occupy the city of Telluride.

The return to the writ of habeas corpus appears to have been filed on April 21, 1904. The adjutant general therein asserted that the insurrection and rebellion was at that time flagrant in San Miguel county; that ever since the National Guard had reached Telluride, it had been active in the attempt to suppress said state of insurrection, and to restore peace and good order in said county, and that it had acted independently of the civil authorities because said authorities were found to be wholly powerless to render any aid whatsoever in that behalf; that after arriving at Telluride, said adjutant general had good reason to believe, and did believe in good faith, and upon due inquiry in the premises became personally and officially fully satisfied and convinced, that the petitioner, Charles H. Moyer (plaintiff here), had been, and if discharged from arrest would continue to be an active participant in fomenting and keeping alive the said condition of insurrection and rebellion, and that he was a prominent leader of bands of lawless men engaged in the acts of insurrection and crimes mentioned in the Governor's proclamation, and that in order to accomplish the suppression of said state of insurrection it was necessary, in the judgment of the Governor and the adjutant general, to arrest, detain, and for some time to come, restrain the body of the said Charles H. Moyer, and that said Moyer was restrained solely for that purpose, and that he would be released from custody as soon as the same could safely be done, with reference to the suppression of the existing insurrection and rebellion.

Governor Peabody was permitted to interpose and file a confirmation of the facts set forth in the return of the adjutant general and in addition thereto he disclosed to the Supreme Court a communication addressed to him as Governor, of date March 23, 1904, signed by county officials, including the wherein they represented to the Governor that a reign of riot and lawlessness was at that time imminent; that the mob was then arming...