The state herald., 1904-07-08
JUSTICE STEELE
DlssENTs IN THE MOVER CASE
Says the Decision Granting Governor
Power to Declare Military Rule is
Bad Law and Menace to Our Lib

ertieS.
Denver, July 2.-Justice Robert w.
Steele of the Supreme Court yester-
day handed down his dissenting opin-
ion in the Meyer habeas corpus case,
which was recently decided by a ma
jority Of the court in favor OF the gov
ernor. The opinion is along one and
radically differs from that of his asso-
ciates as expressed In the decision of
the court. Following are some OF Its
most pertinent paragraphs:
mo person who has the slightest
claim to respectability should hesitate
to approve the action Of the governor
in enforcing the law. and am willing
to uphold him and to applaud him so
long as he keeps within the lines OF
the constitution. But l am not will
ing to uphold him when, In my opin-
ion, he breaks down the barriers
erected by the people for their pro-
lection, nor am l willing to accord to
the constitution elastic properties for
, the purpose of sustaining him, nor to
i join In the establishment of prece-
dent which will not apply to other
classes or other conditions when an.
other governor undertakes to exercise
the same arbitrary power.
81 am not willing to concede the
power claimed by the governor and
exercised by him, because In my opin-
ion such power is not vested in him by
the constitution. The people could
never have intended to erect such an
engine of oppression. 1t follows, OF
course, that II the present executive
is the sole Judge of the conditions
frh MT IL
tary power of the government and can
exercise all means to effectually abate
the conditions, and the judicial power
can not inquire into the legality OF
his acts, that the next governor may,
by his edict, exercise the same arbi-
tTary power.
IF the military authority may deport
the miners this year. II can deport the
farmers next year. II strike which Is
not n rebellion must be 30 regarded be-
cause the governor says 1t Is, then any
condition must be regarded as a rebel
lion which the governor declares to be
such"
In speaking OF the courts interpreta-
tion of the powers of the governor un-
der the constitution he says:
THE court has not construed the
constitution, 1t has ignored 1t; and the
result is that II has made greater IN
roads on the constitution than II In
tended. and that not one of the guar
antees of personal liberty can now be
enforced
1t is plain from Justice Steele's opin-
ion that while the court did not pass
upon the writ of habeas corpus suspen-
sion and martial law, he regards the
courts conclusion as equal TO this in
their effect In one place. in replying
to a sentence in the courts opinion, the
following passage occurs:
Again the court says: To deny the
right Of the militia TO detain those
whom they arrest while engaged In sup
pressing acts Of violence and until or"
der is restored. would lead to the most
absurd results"
This sentence inilicts a fatal wound
upon civil liberty, suspends indefinitely
the privilege of the writ of habeas cor
pus, annuls that section Of the consi-
tuition which declares that no person
shall be deprived of liberty without due
process Of law. and characterizes the
declaration of the Supreme Court OF the
| United States as an absuTdlty."
Il know of no authority that vests
| In the governor the power to arrest one
who he may think will commit an Of
| fense. No such power Is granted by
| the constitution nor bestowed by stat
ute. The courts of the state are open
| and In the unobstructed performance OF
their functions Most persons would
regard restraint of liberty for the per
! iod OF nearly ninety days as u punish
ment: and when the court says that the
| petitioner. by his detention. loses none
| OF his constitutional rights, II Ignores,
II seems to me. that section Of the con-
stItutIon which provides that no person
shall be deprived Of his liberty without
due process OF law"
The closing paragraphs Of the dis
sentlng opinion read as follows:
when w deny to one, however
wicked, a right plainly guaranteed by
the constitution, We take that same
| right from everyone When we say to
Meyer: You must stay In prison be-
cause II we discharge you you may
commit a crime we say that 10 every
other citizen. When we say to one gov
ernor: You have unlimited and arhi-
| trary power we clothe future COVER
nors with That same power We cannot
| change the constitution TO meet condi-
tions. We cannot deny liberty to-day
and grant II tomorrow; We cannot
grant II TO those Heretofore above sns-
picion and deny II TO those suspected
OF crime; for the constitution is for all
men-'for the favorlte at court, for
the countryman nt the plny'-ut all
times. and under nil circumstances,
we cannot SOW the dragons teeth.
and harvest peace ana repose; we can
not SOW the wind and gather the rest
| ful calm.
"Our fathers cnme here NJ e1lles
from n tyrant king. Their brthriHht
Of liberty was denied them by n horde
of petty tyrnnts that infested the land
sent by the king to loot, to plunder.
and to opprcss. Arbitrary arrests vcro
made: the judges. aspiring TO the smile
OF III. prince. refused by 'pltiful eva
sionE' the writ Of habens corpus. our
people were banish.d. they were denied
trial by jury: they were depOrted for
| trial for pretended offens.s. and they
| finally resolved To suffer wrong no
more, and pledged their lives, their
property, aud their sacred honor 10 se-
cure the blessing Of liberty for them
selves and for MS. their children. Hut II
the law IL NJ this court has declared.
then our Wanted priceless hcritnge IA a
sham. md our fathers stood between
their loved homes and the wars desola-
ton In ynin
Durango Democrat boyeo'ted.