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

/ 10 suppress insurrectlon and the means
which may be employed to that end.
II has been stated that parties en-
gagged In riotous conduct render them.
selves liable TO arrest by those en-.
gagged in quelling 1t.
In re Kemp. l6 Wis. 3S3 (413):
Luther VS.. Borden. supra;
Johnson VS.. Jones. A ILL., 1I2.
The same rule necessarily applies to
those found in the zone of the dlsaf.
lected district who are aiding and
abeltlng the insurrectlonIsts; for such
conduct, unless repressed. would re.
suit in the continuation of the lnsur.
rectton, or. ut least, render 1t more
difficult to suppress. We therefore
reach the conclusion that. independ-
enl OF the question of the authority of
the governor 10 declare martial law
or suspend the privilege OF the writ of
haheas corpus. that the petitioner. on
the showing made by the return. is
not illegally restrained of his liberty.
In reaching this conclusion we are not
unmlndful of The argument that a
groat power Is recognized AS being
lodged with the chief executive, and
which might be unlawfuny exercised
Ihlt such power may be abused IL no
good reason why It should be denied
The question simply is. Does II exist?
II so, then the governor cannot be de.
prived of Its exercise. The prime idea
Of government is that power must be
| lodged somewhere for the protection
of the commonwealth. For this pur-
pose laws are enacted. and the author
ty to execute them must exist. for
| they are of no effect unless they are
| enforced Neither is power OF any
avail unless it is exercised Appeals
OF a possible abuse OF power are often
made In public debate They are ad-
dressed to popular fears and preiu.
diccs, aud often give weight IN the
public mind to which they are not en-.
titled. Every government necessarily
includes a grant Of power lodged
somewhere 1t would be Imbeclle
without IT,
Volume t. Story of the Constitu-
lion, section i25.
Volume /. Bailey on Jurisdiction
7ttlloh $50, phIhbIaph Jus.
Many authorities have been cited
by counsel for petitioner which 1t is
not necessary to attempt to review
They are not In conflict with the con
illusions reached in this case They
treat of the power of the president to
declare martial law. to suspend the
privilege Of the writ of haheas corpus
l..f 81 4
rest, Try and punish persons not ac-
tualy In the military service: aud
when The military may or may not
temporarily supersede the usual civil
authorities. None of these questions
are involved in the present case. In
fact, counsel for petitioner practically
c0ncede that the questions Of the au.
thority OF the governor to declare mar
tial law. and suspend the writ of ha-
beas corpus are not involved. because.
| they say. II he has such authority he
has not assumed to exercise it, but
ii is immaterial what power in this
| respect may be invested in the gov
ernor, or whether he has. in fact, at
tempted to declare martial law or sus-
pend the writ of habeas corpus. The
petitioner was lawfully arrested by
The military authorities while the
work OF suppresslng the insurrection
in San Miguel county was In progress.
Such arrest being lawful his restraint
by respondents until 1t is suppressed
il not Illegal.
The writ is discheged and the petit
toner remanded to The custody of the
respondents.
Writ discharged and petitioner re.
manded.
Steel, j., dissents.