The independent. [volume] (Lincoln, Neb.) 1902-1907, 1904-07-28

constitution, has all the powers grant
ed to it. which are necessary to pre-
serve its existence; as has been hap
PLY proved by the result OF the great
effort to throw of it's just authority"
It seems to me that everything has
been said that can be said, and That
the expounders of the constitution
have laid out a path that leads to
peace and security, and I have quoted
from these authorities for the purpose
OF demonstrating that the civil I'D
erty of these great men and the civil
liberty OF Colorado today are OF diff
ferent species.
But It is said that the governor has
greater powers under our constitution
than the president has under the ma
tional constitution; that because he is
given power to suppress instruction
and repel invasion, power sufficient
to accomplish the purpose is neces-
sarily implied; that the executive is
the sole Judge of the means to be en-
ployed. and that the bill of rights
must give way when the governor is
engaged in exercising this power 1t
was because Of the fear that the guar
antees of personal liberty would be de-
MED by implication that the bill OF
rights was made part of our consti-
tution. and it was the intention OF the
people when they adopted the constl-
tuition to declare their rights in such
Main English that they could not be
construed away nor frittered away by
Implication or evasion.
The authority is overwhelming that
the position of the governor cannot be
sustained; that the power OF suspend
ing the privilege Of the writ OF nabeas
corpus is legislative and not executive;
that martial law can only prevail in
places where the civil law is over
thrown by force, and that it exists
only so long as it Is necessary to rein
state the courts; that martial law can
not prevail where the courts are open
and exercising their functions; that
the judicial department will take no.
tice whether the courts are open or
have been overthrown by superior
force.
This court has not undertaken to
declare that the position taken by the
governor and his special counsel IS
correct but has said that the right
of the governor to declare and en-
force martial law and to suspend the
privilege of the writ of habeas corpus
is not involved. The court would have
sustained the governor, under the au-
thorities, if it were possible to do so;
but, finding it impossible to sustain
him under the authorities, 1t has sus-
tanned him In spite of them. All
courts are in duty bound to sustain the
coordinate departments Of the gov
eminent. when they can be sustained;
and should sustain the executive de-
partment If any doubt fingered in my
mind as to the right OF the head OF
that department to exercise the great
power that he asserts.
But I believe that the constitution
has been unnecessarily assaulted and
rudely violated by the head of the
executive department, and further be-
lieve that this court has removed the
landmarks which our fathers have set
and my duty requires me to withhold
my approval.
1t is held by the court that as the
governor, under the constitution, is
empowered to suppress instruction OF
repel invasion, the recitals in his
proclamation that an instruction ex-
lists cannot be controverted, because
it becomes his duty to determine as q
fact when condition exists that de-
mands the exercise of his power, and
that the judicial department cannot
substitute its judgment for that of the
executive department in matters call
ing for the exercise of discretion. A!
/ have before stated, do not REGARD
the proclamation as of great import
ance. II does not seem to me to b.
necessary to proclaim an insurrectioi
before undertaking to suppress it, an
am satisfied that proclamation i
not condition precedent to the exer
else OF the power. An instruction
may OF may not exist. notwithstand