The Kimball graphic. (Kimball, Brule County, Dakota [S.D.]) 1883-1905, 1904-07-08
MINORITY OPINION
IN hAOYER Case
Justice steeIe's Report Says
Decision of Majority Is
Entirely Wrong.
HE WOULD A WRIT
Quotes High Authority to Prove the
Right to Suspend Habeas Corpus
Writ is Legislative Not
Executive.


Meyer, president of the Western Fed
Grafton of Miners, held as a military
prisoner at Telluride by order OF Gov
ernor Peabody.
The opinion contains nearly $4,000
words, deals exclusively with the sit
uation created in this state by military
rule, and cites a mass of authorities to
show that only the legislature can sus-
pend the writ of habeas corpus.
Justice Steele says in part:
NO person who has the slightest claim
to respectability should hesitate to APP
prove the action of the governor in en-
forcing the law. and I am willing to up
hold him and to applaud him so long
as he keeps within the lines Of the con-
stitution. But I am not willing to up
mold him When in my opinion he breaks
down h barriers erected by the people
Tor their protection, nor am 1 willing to
accord to the constitution elastic prop
critics for the urpos of protecting him,
nor to join in the establishment of a
precedent which will not apply to other
classes or other conditions when anoth-
er governor undertakes to exercise the
same arbitrary power.
1 am not willing to concede the power
claimed by the governor and exercised
by him, because, in my opinion, such
power is not vested in him by the con-
stitution.
The people could never have intended
to erect such an engine of oppression.
1T follows. of course, that if the pres
ent executive is the sole judge of the
condition which IA call into action the
military power of the government and
can exercise al! means necessary to
eftectually abate the conditions, and
the Judicial department can not in
quire into the legality of his acts,
that the next governor may, by his
power.
Military Power Useless.
If the military authority may deport
the miners this year, it car deport the
farmers next Year.
II a strike which is not a rebellion
must be SC regarded because the gov
ernor says it is, then II condition
must be regarded as a rebellion Which
the governor declares to be such: and
if any condition must be regarded as a
rebellion because the governor says so,
then any county in the state may be
declared to be in a state of rebellion,
whether a rebellion exists or not, and
every citizen subject to arbitrary arrest
ana detention at the will and pleasure
OF the head of the executive depart
ment. We may then With each sue
ceeding change in the executive branch
of the government have class arrayed
against class, and interest against in
terest: and we hall depend for our
liberty not upon the constitution, but
UPON the graces and favor of the gov
ernor ard his military subordinates.
In no other case presented in this
court have principles SO important, so
far far reaching. been involved. 1t
was deliberately n ably argued, and
the position OF counsel was clearly de-
lined; Yet h court has evaded the
fundamental questions involved and has
based his decision on theories long ago
determined by jurists and statesmen to
be illogical and false.
Right to Suspend Writ.
Justice Steele then quotes high au-
thorities to show h a the constitu-
ton makers contemplated plac-
ing The power of habeas corpus in the
hands of executives, and that the pow
er is exclusively vested in the legisla-
tive branch.
The opinion continues:
The authority is so Overwhelming
that h position of the governor cannol
be sustained, that the power of sus-
pending the privilege of the habeas
corpus writ is legislative and not eS.
ecutive, that martial law can only pre-
vail in places where the civil law is
overthrow by force, and that it exists
50 long as it is necessary TO reinstats
the courts. that martial law cannot pre-
VAL where the courts are open and ex-
ercising their functions, that the Judi
clal department will take notice wheth.
sF the courts are open or have beer
oVertnroNn by superior force.
This court has not undertaken to
declare the position taken by the gov
ernor aud his special consul as cor
rect but it is said that the right OF
tne governor to declare and enforce
martial law and to suspend the privi.
leSe OF habeas corpu is not involved
The court would have sustained the
governor under the authorities We're il
possible to do SO: but. finding it inn
possible to sustain him under the au-
thor!ties, 1T has sustained him in spite
OF them.
But | believe that the constitution
has been unnecessarily assailed anc
fudely Violated by the head of the ex-
ceuttve department, and l firmly be-
iieNe That this court has emoved the
landmarks which our fathers have set
and my duty requires me to withhold
lny approval"
Constitution Infringed Upon.
1T is entirely probable" says Justice
Steele in the curse of his
on the opinion of his colleagues. Jus.
tees Gabbert and Campbell, that the
act of the governor in calling to his
aid the military arm OF the governmen
'Alliot is luesLicilSu, put when II
coraes TO superseding the civil powe,
and exercising military law, to disobey.
ing the writ of habeas corpus or other
process of the court, then the question
Of Wheeler an i~nsurrection exists is no,
TO be determined by the governors
\.eiaination." He then continues:
ne court has not construed the con.
81. S.o1 it has ignored it, and the re.
suit is that ii has made greater inroads
o. the constitution thar it intended
and said that not one OF the
of personal liberty can now be en-.
forced.
Meyer nay be guilty of the most
neinous offenses. 1t may be that he
deserves to linser in prison the remain.
der of his natural life. but he is entitled
to his liberty unless some one, in prop.
er form and before a proper tribunal
charges him With violation of the law
If n may be restrained Of his libert,
with charges being preferred agains
him. every other guarantee OF the con
stitution la be denied him.
The greatness of this country consist,
in being able to protect by the shield O
its constitution the humblest, the ex
aited. the pure and the wicked. w,