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

| lamation has not as yet been fully
suppressed. To this return a reply
was FLED by petitioner in the nature
/ of general demurrer, to the effect
l that It is wholly insufficient in law 10
constitute any Justification whatso.
ever. either for the arrest. improson-
ment, or further detention of peti.
tioner The reply also alleges that
neither on the date OF the proclama-
ton and order OF the governor. nor
at any other time, has there been
state OF insurrectlon In the county of
san Miguel
Chief Justice-Gabbert delivered the
1 opinion Of the court.
/ Counsel tor petitioner contended
! that on the facts above stated he is
/ entitled to his discharge because the
| governor has no power 10 suspend the
privilege OF the writ of Aabeas corpus,
or declare martial law. or that. If he
has such power, he has not assumed
/ 10 exercise H. Special counsel rep
reseutng the respondents controyerts
| these propositions, and further con
I tends that the court is without iurs
! dictiun TO proceed further than to
| deny the relief demanded. or remand
/ the petitioner TO their custody. The
attorney general claims that the gov"
crnur. independent of the questions
of his power to declare martial law,
suspend the privilege of the writ uf
/ habens corpus or tho question of the
| jurisdiction of this cnnrt Is fully au-
thori2ed, under the sconsdution aud
! laws OF the state to suppress iusur-
/ rectinn aud lnwless conditions through
| the power ui the military under his
| command and that his subordinate OF
/ ncrrs actively engaged in suppre-s.ls
/ such nsTreclon by soilIug and boh
] Ing those engaged in acts Of violence
or ia advising aud aiding such acts
| tn suppress which thp military was
called ont cannot be lnJcrrered with
su long as conditions exist which re.
I Quirr the action aud the presence ul
| the military to correct Counsel amici
/ curlue, in their views on theac-several
qu'aions, are divided.
The purpose OF proceedings In ha.
! beas corpus is to determine whether
or not the person insGWung them is
/ Illegally restrained Of his liberty and
We shall proceed to determine whether
or not under the facts stated and the
| laws OF this slate, The petitioner is en-
! lied 10 his discharge, withuut attempt
| ing to pass specifically ul6n the ques.
ton raised by his counsel Before
! proceeding, however. TO a discussion
and determination of this question,
TWO propositions are presented which
should be disposed OF II is urged by
cuunse, Tor petitioner that certain
| nyermenis In the petition Tor the writ
are not contrOvorted by tho return
| The latter is not treated As an answer
/ to the application. but, rather as re
sponse 10 the writ itself The aver
ments OF the petition are made for
| the purpose Of obtaining the writ, and
| the respondent, in his answer thereto,
/ simply seeks to relieve himself from
the imputatlon of having imprisoned
petitioner without lawful authority,
and this he does. or rather Is required
TO do, under the law by statements
in the return from which the legality
OF the imprisonment Is to be determ-
| ined, without regard TO the statements
OF the petition ior the writ In short,
he Is not required to make any issue
on the petition for the writ. but 10
answer the writ
In re Chipcase, Sc Kan, 357; 43
pac 2Gii
G1N parte Durbin, II S. w. (MoJ
S2I;
Simmons vs.. Georgia Iron & Coal
Co, 81 L. r. A. 73g
BY the reply IT is alleged that, not.
withstanding the proclamation and de
termination Of the governor that
state of insurrection existed in the
| county OF san Miguel, that, as a mat
ter of fact, these conditions did not
| exist al The time OF such proclamation
or the arrest Of the petitioner. or at
any other time By section 8. artt
Gle 4 OF our constitution, the governor
Is the commanderin-chief OF the mil
itary forces Of tho state, except when
they are called into actual service of
The United States. and he is thereby
| empowered to call out the militia to
suppress insurrectiOn II must. there
fore, become his duty to determine
as a fact when conditions exist In
given locality which demand that in
the discharge of his duties a5 chief
| executive OF the state he shall employ
! the militia 10 suppress. This being
| true, the recitals in the proclamation,
to the effect that - state OF insurrec.
| ton existed in the county Of San MI
guel cannot be controyerled. Other.
wise The legality of the orders Of the
executive would not depend upon his
Judgment but the judgment Of another
coordinate branch OF the state gov
ernment.
In re- Boyle. 81 pac Hdaho) zoe.
Luther vs.. Borden, How. /;
IX parte Moore 81 n G. SO2:
Martin VS.. Mott. II Wheat. 10.
by the constitution the supreme ex
ecuiiye power Of The stale is vested
in the governor. and he is required to
take care that the laws be faithfully
executed section ?, article 4. To this
end he is made commander-in.chiel
of the military forces OF the state, and
4 is vested with aHhority to call out
/ the militia to execute The laws and