Rocky Ford enterprise., 1906-06-29
NO DAY IN COURT
MARTIAL LAW DisPLAcEs ALL
.n oT.iER POWERS.
DECISION BY JUDGE LEWIS
Federal Tribunal Holds That There Us
No Recourse In the Courts from
Acts Of the Militia in Cripple Greek
District UnIeeI Malice is Shown.

sciSss 10 nave Deen injured In person
or property while state OF martial law
exists have no recourse against the
state or Its agents under the law. nm.
less malice by the states agents can be
shown. .-...
Such is in effect decision OF Judge
Robert l.. Lewis OF the United States
District Court Friday. The matter came
up In the case OF Michael Gibbon w.
l.. Il. Hill. Nelson Franklin. F. NJ.
Woods and ii. T.. McGarry. suit having
been brought In the sum OF $4,000
damages. Following the testimony OF
General Sherman Bell as TO the condI-
tons existing at Victor at the time OF
the arrest OF Gibbons In 1904, the
court took the case from the jury and
ordered a non-suit. II liz important as
bearing upon large number OF other
suits. These suits are innumcrablc
and aggregate hundreds OF thousands
OF dollars. They have been filed against
the state and individuals by persons
who were deportcd. arrested or other
wise came under the rule OF the mill.
tary Mt that time.
TIL. defendants In the suit were tho
members OF the military commission
which General Bell appointed Mt Victor
tho morning following the explosion
at tho Independence depot. and the
plaintiff was the police mngistTat. Mt
Victor. He was arrested and confined
In the temporary jail. but later brought
suit for damages. He claimed that this
was at the instisation Of the military
commission and that II was done mall
clously.
The plaintiff had put In a witness or
two In vcrineation of his arrest and
tnt,.. NJ
called to the stand. He gave in detail
statement that Governor Peabody
had placed III. military in control OF
tho district and that he arrived there
ON 'hn morning OF the 9Th and took
charge.
lie ordered all who might make
trouble or b6 In danger from any cause
To b- placed under arrest. either to r..
strain or protect them. Gibbon wRR aT-
rested 10 give him protection. Follow
Ing tho statement OF General He'll that
the commission waA advisory and had
power only to "Samin" into charges
asains; the men only. the court took
tho case in hand and announced its
opinion.
Following IL tho announcement, o.
Judge Lewis in the case:
1T Will not be necessary. E.n'l~m"n.
tof tho jaryl. for this ease TO proceed
any further. ! wish to announce some
general principles in connection with
the Law under these conditions. when
ihRuFE-ction exists. and martial Law
has been declared. the civil rights at
the citizen become HuboFiinai6d 10
military rule. The diciaiiou and au'
thoFi;y Of those in command of III"
militia override civil authority. and for
the time being usnrp and dIsplar" all
other governmental rule and power.
And whatever may bc done under Hu.
thoEity Of the military authorities for
the purpose of restoring peace and
civil order under the necessities uf the
situation. cannot bc made the basis for
litigation In the courts,
"a state may usr i'a military power
10 put down an insurrcc'ion and to
suppress n condition Of anarchy too
strong TO be controlled by civil author
i,y. and tho state must determine What
degree of force the crisis demands.
Under the constitution and statutes
Of Colorado. the governor Of this state
was and IL invested with discretionary
power to declare. martial ;Aw for the
putpos. OF putting down lnsuTTcction
and supprcssinE anarchy. and he was
the role Judge as to whether the facts
justified tho declaration of martial Law.
When martial law has been declared.
the militia may lawfully arrest and dc.
tain any citizen for the purpose OF
restoring peace and order. hut they
mus, not act arbitrarily nor use more
force than IL necessary. and II the
power Of the militia IL used for the
purpose of oppression. and citizen is
thereby injured. such citizen has \
cause Of action against those infict'
Ing tho injury.
IF the evidence were sufficient so
Justify me In feeling that you were at
liberty TO md that Hi instisatnd ami
moved the militia himself TO make III"
arrest and Incarceration. then that
question might go to you for your con.
sidcTa,ion. but think not only is ,hcrr
an absence of evidence on the part OF
the plaintiff that these individual de.
PENDANTS could exercise any such
power or authority, but the testimony
Of the officer in chief command is. I re
peat. that no citizen. not even this ad-
visory committee, could arrest or de
tain. and that IL of course necessary
and In keeping with military life.
In may be that this plaintiff ought
not 20 have been arrested. TherI can.
not be a 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 incarccr-
ated him under those conditions did u
mallciousiy and not for the general
purpose of suppressinr anarchy. but
for the purpose of wreakinE some spite
or enmity against the individual he
has no recourse and. no cause of ac-
tion. Il is the power Of every govern
ment itself to restore order. to pisteCt
every community within the confines
of the state. Your verdict. gentlemen.
viii be entered in favor of the defend
ant. You are discharged from the fur
ther consideration Of this case"