The Grit-advocate., 1906-06-29
NO DAY IN court
MARTIAL LAW DlSPLACES ALL
OTHER POWERS.
DECISION BY JUDGE LEWIS
Federal Tribunal Holds That There Is
No Recourse in the Courts from
Acts Of the Militia in Cripple Creek
District Unless Malice is Shown.

Acts of the Militia in Cripple Creek
District Unless Malice is Shown.
Denver.-People who believe them
selves to have been injured in person
or property while state of martial law
exists have no recourse against the
state or its agents under the law, un-
less malice by the states agents can be
shown.
Such is in effect decision Of Judge
robert f. Lewis of the United States
District Court Friday. The matter came
up in the case of Michael Gibbon VS..
l.; e. Hill, Nelson Franklin, F. NJ
Woods and H. E. McGarry, suit having
been brought in the sum of $4,000
damages. Following the testimony of
General Sherman Bell as to the condi-
tlons existing at Victor at the TING OF
the arrest of Gibbons in 1904, the
court took the case from the jury and
ordered a non-Suit, 1t is important as
bearing upon large number of other
suits. These suits. are innumerabe
and aggregate hundreds of thousands
OF dollars. They have been filed against
the state and individuals by persons
who were deported, arrested or other
wise came under the rule of the mill
tary at that time.
The defendants in the suit were the
members of the military commission
which General Bell appointed at Victor
the morning following the explosion
at the Independence depot, and the
plaintiff was the police magistrate at
Victor. He was arrested and confined
in the temporary jail, but later brought
m Ia Il ni l.,
was at the instigation of the military
commission and that it was done mali
ciously.
The plaintiff had put in a witness or
two in verification of his arrest and
confinement when General Bell was
called to the stand. He gave in detail
statement that Governor Peabody
had placed the military in control Of
the district and that he arrived there
on the morning of the 7th and took
charge.
He ordered all who might make
trouble or be in danger from any cause
to be placed under arrest, either to re
strain or protect them. Gibbon was ar
rested to give him protection. Follow
ing the statement of General Bell that
the commission was advisory and had
power only to examine into charges
against the men only, the court took
the case In hand and announced its
opinion.
Following IS the announcement OF
Judge Lewis in the case:
ut will not be necessary, gentlemen,
(of the jury, for this case to proceed
any further l wish to announce some
general principles in connection with
the law under these conditions. When
insurrection exists, and martial law
has been declared, the civil rights Of
the citizen become subordinated to
military rule. The dictation and au-
thority of those in command of the
militia override civil authority, and for
the time being usurp and displace all
other governmental rule and power.
And whatever may be done under au-
thority of the military authorities for
the purpose Of restoring peace and
civil order under the necessities of the
situation, cannot be made the basis for
litigation in the courts.
"A state may use its military power
to put down an insurrectlon and to
suppress a condition OF anarchy too
strong to be controlled by civil author
ity, and the state must determine what
degree of force the crisis demands.
"under the constitution and statutes
of Colorado. the governor of this state
was and is invested with discretionary
power to declare, martial Jaw for the
purpose of putting down 1nsurrection
and suppressing anarchy. and he was
the sole judge as to whether the facts
justified the declaration of martial law.
When martial law has been declared,
the nililla may lawfully arrest and de-
tain any citizen for the purpose OF
restoring peace and order. but they
must not act arbitrarily nor use more
force than is necessary, and If the
power of the militia is used for the
purpose of oppression, and a citizen is
thereby injured, such citizen has a
cause of action against those infiict-
ing the injury.
IF the evidence were sufficient to
justify me in feeling that you were at
liberty to find that Hill instigated and
moved the militia himself to make the
arrest and incarceration. then that
question might go to you for your con-
sideration, but think not only is there
an absence of evidence on the part OF
the plaintiff that these individual de,
PENDANTS could exercise any such
power or authority, Dut tne testimony
of the officer in chief command is, re-
peat, that no citizen, not even this ad-
visory committee, could arrest or de-
tain and that is of course necessary
and in keeping with military life.
"In may be that this plaintiff ought
not to have been arrested. There cam
not be case of martial law and mill
tary rule to suppress a riot and insur-
rection, that the rights of some citi-
zen are not trampled upon, but unless
those who arrested him and incarcer-
ated him under those conditions did it
maliciously and not for the general
purpose of suppressing anarchy, but
for the purpose of wreaking some spite
or enmity against the individual he
has no recourse and no cause of ac-
ton 1t is the power of every govern
| ment itself to restore order, TO protect
every community within the confines
of the state. Your verdict, gentlemen,
will be entered in favor of the defend
ant. You are discharged from the fur
ther consideration of this case"