Kansas agitator. [volume] (Garnett, Kan.) 1890-1905, 1904-07-08
JUSTICE STEELE DISSENTS.

AS orr readers will remember, the supreme
court of Colorado held that Governor PEABODY
had the mower to declare martial law and Sls-
pend the writ of habeas corpus. however,
this was not the unanimous opinion OF the
court-Justice Steele dssents, claiming that
the weight of authority is all against the Gov
ernors claim of authority.
If it is solely within the power of the Gov
ernor to suspend the civil government and call
into action the military power, and the judicial
department cannot inquire into the legality OF
his acts, then, says Justice Steele, "the next
governor may, by his ukase, exercise the same
arbitrary power If the military authority may
deport the miners this year, it can deport the
farmers next year."
Commenting on this, the Topeka Capital
says: "Further, if the operators and smelling
interests control the governor this year, the
strikers and Socialists and radicals may control
him next year or two years from now, and II
the governor at that time has the courage OF
his arbitrary authority to declare an insurrec.
ton and suspend civil government, he can de-
port the smelling capitalists and the operators.
And the courts cannot interfere or inquire into
his conduct. He is law unto himself"
Continuing, the Capital says:
"But, It may be said, the authority must
lodge somewhere of determining when anarchy
and instruction exist, and OF deciding that it
is time to call in the military and declare mar
tial law. This is true, but it SEVER has been
questioned that the fathers of the government
gave this important power not to the executive,
but to the close representatives of the people,
the legislature. When LincoL declared mar
tial law and suspended the writ of habeas cor
pus in the crisis of the rebellion, he realized
that it was an extreme stretch Ct executive au-
thority, and he Immediately asked congress to
confirm his action as soon as cor gress convened.
Says Justice Steele: ''The authority is over
whelming that the position OF the Governor
cannot be sustained; that the power of suspend
ing the writ of habeas corpus is legislative, and
not executive; that martial law can only prevail
in places where the civil law is overthrown by
force, and that it exists only so long as it is
necessary to reinstate the courts; that martial
law cannot prevail where the courts are open
and exercising their functions; that the judicial
department will take notice whether the courts
are open OF have been overthrow by superior
force,
eff one may be restrained of his liberty
without charge being PREFER, against him,
every other guarantee of the constitution may
be denied him.
"When we deny to one, however wicked,
right plainly guaranteed by ;he constitution,
we take that same right from everyone. When
we say to Meyer, you must say in prison be-
cause, if we discharge you, yea may commit
crime, we say that to every other citizen.
When we say to one govern,r, you have I'M
limited and arbitrary power we clothe the
future governors with the 81 me power We
cannot change the constitutior to meet condi-
TONS"
We would like to publish Judge Steele's
opinion in full, but it is very loNg, and we have
not sufficient room for it. Ono thing is certain:
his opinion is unassailable, AMI he is right