Gilpin observer., 1906-11-22
Guard IS UPHELD.
MOVERS SUIT AGAINST MILITARY
OFFICERS FAILS.
HAD RIGHT TO IMPRIsoN HIM

trict Court Sustains Demurrer IN
Case Of Charles II. Meyer Against
Governor Peabody and Officers Of
the National Guard Of Colorado.
Denver.-When an insurrection is
declared by the governor to exist in
any part of Colorado, a citizen Of the
district affected by the proclamation
Of the chief executive of the state
may be imprisoned and detained at the
will of the military authorities, accord
ing to an opinion handed down by
Judge R. E. Lewis in the United States
District Court yesterday. Such acton
by the military authorities is declared
not to be violation of the fourteenth
amendment, or Of the law providing
for the writ of habeas corpus.
This decision, which is one of the
most important announced in Colo
RADIO court in recent years, was handed
down Monday in the case of Charles
H. Meyer, president of the Western
Federation of Miners, VS.. James ii.
Peabody, former governor; Sherman
Bell, former adjutant general, and
Bulkeley Wells, now adjutant general,
but at the time of the commission of
the act of which plaintiff complained,
an officer in the National Guard of
Colorado. Mr.. Meyer had sued for
100000 damages for alleged false i'm
prisonment during the strike troubles
in San Miguel county two years ago
The demurrer Of the defendants was
sustained, and the opinion of the court
was announced in sustaining the de-
murrer.
After full statement of facts in the
damage suit brought by Meyer, recit-
ing at length the troubles in Telluride
and the appeal from the authorities to
Governor Peabody for aid, and his
sending the militia and the arrest of
Meyer, Judge Lewis goes into the COM
plant of the Meyer lawyers.
The constitution reads: "The su-
preme executive power of the state
shall be vested in the governor, who
shall take care that the laws shall
be faithfully executed. The
governor shall be commander-in-chief
of the military forces of the state, ex-
cept when they shall be called into act
ual service of the United States. He
to execute the laws, suppress insurrec-
ton and repel INVASION
Proceeding on this as a basis, Judge
Lewis writes:
There is nothing on the face of the
above provisions of the Colorado con-
stitution which brings it in conflict
with the fourteenth article of amend.
ment to the constitution of the United
States. and the complaint here may
be said to be against the manner of en-
forcing said provisions. 1t is true that
il state officers. in the exercise of their
official authority, deny to any citizen
the guarantee found in said amend
ment, 1t is the state itself which does
it, and such acts, therefore, come
within the constitutional prohibitions
The officer. however, must claim to
act under authority conferred upon
him by the statute, and be guilty OF
an abuse of power, if the Legislative
act is not subject to the criticism.
ut is obvious that the provisions
above quoted from the constitution OF
Colorado are but the enunciation of a
sovereign power, a power founded on
necessity and inherent in every gov
ernment. 1t is sometimes likened to
that of self-defense. The life of gov
ernments is like that of man; the lat
ter has right to KILL in case of nat
ural defense; the former have the
right to wage war for their own pres
ervation.' 1t is the declaration of the
right Of self-preservation and finds
recognition in every constitution both
national and state. 1t is properly in
voked in all governments to repel in
yasiCr by foes without, and to sup
press rebellion or insurrection by enc
mics or powerful disturbers of the
peace within.
Unless this right and power exist,
peace, good order. security-govern.
ment itself-may be destroyed and OBJ.
liberated by internal strife and lawless,
ness, when the domination of the mob
becomes so powerful that it cannot be
stayed by the civil authorities. This
power in the state was recognized by
the national government on receiving
the state into the union with the above
provisions in the constitution The pro.
vision in section 4 of article 4 of the
United States Constitution guarantees
| every state against domestic violence
The national government possesses the
same right and power as declared in
section Of article l of it's constitll.
ton.
These fundamental principles were
not seriously questioned on argument,
but the contention was that the plain
tiff has right to go to the country on
| Tho issue Of fact: Die the insurrection
| exist.
In re William Boyle. So Pac. Rep.
Qdaho) 706 CAS- l.. r. A. 1922. It was
held: "On application for writ of ha.
beas corpus, the truth of the recitals OF
the alleged facts In a proclamation is.
sued by the Governor proclaiming n
certain county to be in a state of insur.
| rection and rebellion. will not be In.
| quired into or reviewed"
II therefore conclude that the exist.
ence OF insurrection. as declared in the
Governors proclamation, is not issu.