The Elbert County tribune., 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 UnIess Malice Is Shown.

/
| 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 Il. 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-
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
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
| suit for damages. He claimed that this
was at the instigation of the military
| commission and that 1t was done mali
| ciously.
The plaintiff had put in witness or
| two in verifcation 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 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
IL ..t.
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 law for the
| purpose of putting down lnsurrection
and suppressing anarchy, and he was
the sole judge rs to whether the facts
| justified the declaration of martial law.
| When martial law has been declared,
| the militia 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 IL 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 inflict-
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, but the 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 can
not be a case of martial law and mill
tary rule to suppress 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 il
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
tion. 1t is the power of every govern
ment itself to restore order, to pIDtecl
every community within the confines
of the state Your verdict, gentlemen
| will be entered in favor of the defend