Gilpin observer., 1906-06-28
NO DAY IN COURT
MARTIAL LAW DISPLAcES 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 e. 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 100000
damages. Following the testimony of
General Sherman Bell as to the condi-
tions existing at Victor at the time of
the arrest of Gibbons in 1904, the
court took the case from the jury and
ordered non-suit. 1t is important as
bearing upon large number of other
SUITS These suits are innumerable
ana 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
suit for damages. He claimed that this
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 it's
opinion.
Following is the announcement OF
Judge Lewis in the case:
1T will not be necessary, gentlemen,
(of the jury), for this case to proceed
any further. ! wish to announce some
general principles in connection with
tho law under these conditions. When
1nsurrection 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 it's military power
to put down an insurrectlon and to
suppress 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 law for the
purpose sf putting down lnsurrection
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 Iniliti. 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 thai is necessary, and IL the
power of the militia is used for the
purpose OF oppression, and a citizen is
thereby Injured, such citizen has
cause of ,ction against those infiict-
ing the injlry.
"If the violence were sufficient to
justify me In feeling that you were at
liberty to fhd that Hill instigated and
moved the Militia himself to make the
arrest and incarceration, then that
question mi,ht go to you for your con-
sideration, hit think not only is there
an absence bf evidence on the part of
the plaintiff that these individual de-
PENDANTS Guild exercise any such
power or athority, but the testimony
of the office in chief command is, re-
peat, that n, citizen, not even this ad
visory committee, could arrest or de-
tain, and tht is of course necessary
and in keeping with military life.
'In may p that this plaintiff ought
not to havebeen arrested. There can
not be ca e Of martial law and mill
tary rule toSuppress a riot and insur-
rection, thai the rights OF some citi-
zen are nottrampled upon. but unless
those who crested him and incarcer-
ated him uher those conditions did It
mallclously Ind not for the general
purpose OF buppressing anarchy, but
for the purpB pc of wreaking some spite
or enmity Sainst the individual he
has no recdrse and no cause OF ac-
ton. 1t is tie power OF every govern.
ment itself I restore order. to protect
every community within the confines
Of tho state Your verdict pentlemnn