United States v. Fischer

• Decision Date: 27 February 1922
• Docket Number: 374.,373
• Citation: 280 F. 208
• Parties: UNITED STATES ex rel. SEYMOUR v. FISCHER, Sheriff, et al. UNITED STATES ex rel. WATSON v. SAME.
• Court: U.S. District Court — District of Nebraska

280 F. 208

UNITED STATES ex rel. SEYMOUR v. FISCHER, Sheriff, et al.

UNITED STATES ex rel. WATSON v. SAME.

Nos. 373, 374.

United States District Court, D. Nebraska, Lincoln Division.

February 27, 1922

Jamieson O'Sullivan & Southard, of Omaha, Neb., for plaintiffs.

Wm. H Pitzer, Earl M. Cline, and Paul Jessen, all of Nebraska City Neb., Clarence A. Davis, Atty. Gen., of Nebraska, and R. F Stout, of Lincoln, Neb., for defendants.

MUNGER District Judge.

These are applications for writs of habeas corpus by two persons who have been committed to a term of imprisonment in a county jail of this state. The facts leading up to the imprisonment are as follows:

The Governor of the state had issued a proclamation declaring the existence at Nebraska City of a state of lawlessness and disorder beyond the control of the civil authorities, and that the local officers had applied for military assistance to be placed in control of that territory for the restoration and maintenance of law and order. The proclamation therefore declared the territory to be subject to martial law, and ordered the National Guard of the state to occupy the territory for the purpose of restoring law and order. After the troops were in possession of the territory, the Governor authorized the appointment of military commissions to try offenses against the public peace and violations of any military rules and regulations.

Each of the petitioners was charged with violation of some of these regulations, one in retaining in his possession arms, equipment, and munitions of war, and the other in keeping open a prohibited place of business, and each was found guilty and sentenced, and the commitments are in pursuance of these sentences. The petitioners were not employed in the military service and were citizens of Nebraska City. The state courts at Nebraska City were open during all the time of military occupation. After the petitioners had served a portion of their sentences, the Governor issued a proclamation reciting that violence and disorder had ceased at Nebraska City, and he therefore terminated martial law and withdrew the troops.

The chief claim of the petitioners is that their continued imprisonment violates the due process of law guaranteed to them by the Fourteenth Amendment to the Constitution of the United States: (1) Because martial law did not exist at the time of their alleged offenses; (2) because the military commission had no power to try them; and (3) because sentence by the commission could not outlast the period of military occupancy.

Due process of law depends upon circumstances, and varies with the subject-matter and the necessities of the situation, and imprisonment of citizens by the military commander may be lawful in some cases. Moyer v. Peabody, 212 U.S. 78, 29 Sup.Ct. 235, 53 L.Ed. 410. Article 5, Sec. 14, of the Nebraska Constitution makes the Governor commander of the military forces of the state, and authorizes him to call out the militia to execute the laws and suppress insurrection. Section 3904 of the Revised Statutes of Nebraska (1913) authorizes the Governor, as commander-in-chief of the militia, to employ it in the defense or relief of the state, or any part of its inhabitants or territories, and gives him all the powers necessary to carry into effect the provisions of that chapter of the Statutes.

Section 3913 of the same chapter provides that the militia may be called into service in time of war, invasion, riot, rebellion, insurrection, or reasonable apprehension thereof, and section 3916 authorizes the Governor to proclaim any portion of the state in a state of insurrection when in his judgment the maintenance of law and order will be promoted thereby, and the militia are employed to aid the civil authority.

Under such powers the Governor may make the ordinary use of soldiers to suppress insurrection and his declaration of the existence of a state of insurrection is conclusive. Moyer v. Peabody, 212 U.S. 78, 29 Sup.Ct. 235, 53 L.Ed. 410; Luther v. Borden et al., 7 How. 1, 12 L.Ed. 581; United States v. Wolters (D.C.) 268 F. 69; In re Moyer, 35 Colo. 159, 85 P. 190, 12 L.R.A.(N.S.) 979, 117 Am.St.Rep. 189; State v. Brown, 71 W.Va. 519, 77 S.E. 243, 45 L.R.A.(N.S.) 996, Ann. Cas. 1914C, 1; Ex parte McDonald, 49 Mont. 454, 143 P. 947, L.R.A. 1915B, 988, Ann. Cas. 1916A, 1166.

Was the proclamation of the Governor the declaration of a state of insurrection, or were the military forces called into service merely as aids to the civil officers for the purpose of assisting them in enforcing the laws? The proclamations do not use the word 'insurrection,' but the condition described of lawlessness and disorder beyond the control of the civil authorities, and the declaration of martial law, are equivalent to a declaration of the existence of that organized resistance to authority known as insurrection. In re Charge to Grand Jury (D.C.) 62 F. 828; Alleghany County v. Gibson, 90 Pa. 397, 35 Am.Rep. 670.

When a state of war or insurrection exists, and the Governor has legally called into action the military forces of the state, the will of the commander becomes the controlling authority in the occupied territory, so far as he chooses to exert it, subject to the laws and usages of war. New Orleans v. Steamship Co., 20 Wall. 387, 22 L.Ed. 354; United States v. Diekelman, 92 U.S. 520, 23 L.Ed. 742; Luther v. Borden et al., 7 How. 1, 12 L.Ed. 581; United States v. McDonald (D.C.) 265 F. 754; In re Egan, 5 Blatchf. 319, Fed. Cas. No. 4,303; Commonwealth v. Shortall, 206 Pa. 165, 55 A. 952, 65 L.R.A. 193, 98 Am.St.Rep. 759; 40 Cyc. 383, 390. As said by the Supreme Court of the United States in the case of Moyer v. Peabody, 212 U.S. 78, 29 Sup.Ct. 235, 53 L.Ed. 410, of the powers vested in the Governor to suppress insurrection:

'That means that he shall make the ordinary use of the soldiers to that end, that he may kill persons who resist and, of course, that he may use the milder measure

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