Durango semi-weekly herald., 1904-06-09

could only he secured through the in.
tervention OF the militia Being vest.
ed with authority to employ the mill.
tia Tor specific purpose. and 1t an.
pearing from the return to the writ
that the governor has called ii into
1 requisition for that purpose. his action
through his subordlnates cannot be in
terlered with. so long as he does not
exceed the power which. under the frrn.
damental law of the state and the acts
OF the legislature in conformity there
with, he is authorized to exercise.
People VS.. District Court. % Colo.
49, C2U5).
The crucial question, then. Is sim
ply thls Are the arrest and deten.
tion of petitioner under the facts mar.
rated Illegal? When an express power
is conferred, all necessary means may
he employed to exercise 1t. which are
not expressly or implicitly prohibited.
story ON the Constitution, sec.
tlon 434.
Laws must be given reasonable
| construction, which, so far as pussibl.
viii enable the end thereby sought to
be attained. So with the constitution.
1t must be given that construction OF
which il is susceptible which will tend
TO maintain and preserve the govern.
ment of which it is the foundation and
protect the citizens OF the state in the
| enjoyment OF their inallenable rights
In suppressing an instruction II has
been many times determined that the
military may resort TO extreme force
as against armed and rlOtOus resist.
ance, even TO the extent OF taking the
lie ul the rioters Without such au-
thurity The presence oil the military
ia district under the control oil the
| inSurrectionists would be mere Idle
parade. unable 10 accomplish any
thing IN the way to restoring order or
Suppressiug riotous conduct II. then
The military may resort 10 the extreme
oi taking life in order to suppress in.
surrection. IL is impossible 10 imagine
upon what hypothesis it can be sue
cesalully claimed that the milder
means OF sctZing the persons OF those
participating in the msurrectiun or
aiding and ubetting II may not be re.
sorted to. This IS but lawful means
lu the cud TO be accomplished The
pawer aud authority of the militia in
such circumstances are not unlike that
ut the police Of "A city. or the sheriff
Of county, aided by his deputies or
posse comitnus in snppressing a riot.
Certainty such officials would be justi.
lied m arresting the rioters and plac-
Ing them in Jail without warrant, and
OBTAINING them there until the riot
was suppressed Hallet. j., In re np-
piicnliOn of Sherman Parker II, as
cunienhcd by counsel for petitioner.
the military. as soon as rioter or in
surrecllnnist is arrested, must turn
him over TO the ciVil authorities of the
county, the arrest might and in many
Instances would, amount 10 mere
farce. lie could be released on bail,
ana lett free to again join the riot
crs or engage in aiding and abetling
their action, and If again arrested the
same process would have to he repeat.
ed and thus the action OF the military
would be rendered nulity. Again.
If 1t be conceded that on the arrest of
a riOter by the military he must at
once be turned over to the custody Of
the civil officers of the county. then
the military, in selling armed insur-
rectionists and depriying them OF their
arms. would be required to forthwith
return them to the hands of those
who We're employing them In acts Of
violence, or be subject to an action
OF repleyin for their recovery, where.
by Immediate possession OF such arms
would be obtained by the rioters, who
would thus again be equipped to con.
tinue their lawless conduct.
To deny the right OF the militia to
detain those whom they arrest while
engaged in suppressing acts of vlo-
lence and until order is restored,
would lead 10 the most absurd results
The arrest and detention OF an insur.
recuonist either actually engaged in
acts OF violence or in aiding and abet.
ting others to commit such acts, vi
Olales none OF his constitutional rights.
He is not tried by any military court,
or denied the right of trial by jury:
neither is he punished for violation OF
the law. nor held without due process
OF law. HIS arrest and detention in
such circumstances are merely 70 pre-
vent him from taking part or aiding
in continuation 0f the conditions
which the governor in the discharge
Of his oiiicinl duties and in the exer.
else Of the authority conferred by law,
is endeayoring 10 suppress When this
end is reached he could no longer be
restrained Of his liberty by the mil
itary. but must be. just as the re.
spOndents have indicated in their re.
turn to the writ, turned over TO the
usual civil authorities of the county.
to be dealt with In the ordinary cour3e
Of justice, and tried for such onense
against the law as he may have com
mittei. It, is true that petitioner Is
MOI held by virtue Of any warrant, hIt
II his arrest aud detention are author
izcd by law. he cannot complain be.
cause thuse steps have not been taken
which are ordinarily taken before a
citizen can be arrested and detained
Nor do these Views conflict with
section % of the bill or rights, which
provides that the military shall al.
ways be in strict subordination to the