Gilpin observer., 1904-07-07
JUSTICE STEELE
DIssEMTs IN THE MOVER CASH

Power to Declare Military Rule 10
Bad Law and q Menace to Our Lib.
critics.
Denver, July 1.-Justice Robert W.
Steele of the Supreme Court yester-
day handed down his dissenting opin-
ion in the Meyer habeas corpus case.
which was recently decided by ma
Jority of the court in favor of the gov
ernor. The opinion Is along one and
radically differs from that Of his asso-
ciates as expressed in the decision OF
the court. Following are some OF its
most pertinent paragraphs:
mo person who has the slightest
claim to respectability should hesitate
to approve the action OF the governor
in enforcing the law, and am willing
to uphold him and to applaud him SO
long as he keeps within the lines Of
the constitution. But l am not will
ing to uphold him when, in my opin-
ion, he breaks down the barriers
erected by the people for their pro-
lection, nor am l willing to accord to
the constitution elastic properties for
the purpose of sustaining him, nor to
join in the establishment Of a prece-
dent which will not apply to other
classes or other conditions when an
other governor undertakes to exercise
the same arbitrary power.
Il am not willing to concede the
power claimed by the governor and
exercised by him, because in my opin-
ion such power Is not vested in him by
the constitution. The people could
never have intended to erect such an
engine OF oppression. 1t follows, OF
course, that II the present executive
is the sole Judge of the conditions
which can call into action the mill
tary power of the government and can
exercise all means to effectually abate
the conditions. and the judicial power
can not inquire into the legality OF
his acts, that the next governor may,
by his edict, exercise the same arbi-
trary power.
'If the military authority may deport
the miners this year, it can deRort the
farmers next year. II strike which Is
not a rebellion must be SO regarded be-
cause the governor says 1t is, then any
condition must be regarded as rebel
lion which the governor declares to be
such" ~ Et fft
In speaking of the courts interpreta-
tion of the powers Of the governor un-
der the constitution he says:
THE court has not construed the
constitution. 1t has ignored It; and the
result is that 1t has made greater in
roads on the constitution than 1t in
tended, and that not one of the guar
antees of personal liberty can now be
enforced"
1t is plain from Justice Steele's opin-
ion that while the court did not pass
upon the writ of habeas corpus suspen-
sion and martial law, he regards the
courts conclusion as equal to this in
their effect. In one place, in replying
to a sentence in the courts opinion, the
following passage occurs:
Again the court says: To deny the
right of the militia to detain those
whom they arrest while engaged in sup
pressing acts Of violence and until or
der is restored. would lead to the most
absurd results"
This sentence inflicts a fatal wound
upon civil liberty. suspends indefinitely
the privilege Of the writ Of habeas cor
.pus. annuls that section of the consti-
tuition which declares that no person
shall be deprived of liberty without due
declaration of the Supreme Court Of the
United States as an absurdity."
II know Of no authority that vests
in the governor the power to arrest one
who he may think will commit an Of
tense. No such power is Eanted by
the constitution nor bestowed by stat
ute. The courts of the state are open
and in the unobstructed performance OF
their functions. Most persons would
regard restraint Of liberty for the per-
iod of nearly ninety days as a punish
ment; and when the court rays that the
petitioner, by his detention, loses none
OF his constitutional rights. 1t ignores.
1t seems to me. that section Of the con-
stitution which provides that no person
shall be deprived Ct his liberty without,
due process Of law"
The closing paragraphs of the dis
senting opinion read as follows:
When we deny to one. however
wicked. a right plainly guaranteed by
the constitution, We take that same
right from everyone. When we say to
Meyer: You must stay in prison be-
cause II We discharge you you may
commit a crime we say that to every
other citizen. When we say to one gov
ernor: You have unlimited and arbi-
trary power we clothe future COVER
nors with that same power. We cannot
change the constitution to meet condi-
tions. We cannot deny liberty to-day
and grant 1t tomorrow; We cannot
grant 1t to those heretofore above sus-
picion and deny 1t to those suspected
OF crime; for the constitution Is for all
men-'for the favorite at court; for
the countryman at the play'-at all
times. and under all circumstances.
I'VE cannot SOW the dragons teeth.
and harvest peace and repose; We can.
not SOW the wind and gather the rest
ful calm.
"Our fathers came here as exiles
from q tyrant king. Their birthright
of liberty was denied them by horde
Of petty tyrants that infested the land
sent by the king to loot, to plunder,
and to oppress. Arbitrary arrests were
made; the judges, aspiring to the smile
of thu nrince refused by 'pitiful eva