The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1932-12-16
USE OF MILITIA TO i
DEFEAT Law DRAWS
FIRE FROM hughes
Chief Justice Outlines Powers
OF Governor in Strongly
Worded Opinion

any purpose other than to preserve
order and protect the proper opera.
E ton of the law will find no satisfac-
ton in the neat dressing down which
Chief Justice Hughes gave Governor
r. s. Sterling of Texas, in an opinion
handed down Monday.
The case was one in which Ster-
ling, along with w. w. Sterling, ad-
jutant general Of the state, and Jacob
F. Wolters, brigadier general COM
manding the Texas Nationoal Guard
appealed from an order of the federal
district court enjoining them from
continuing martial law in the East
Texas oil field. The injunction was
obtained by E. Constantin and others
and its justice was affirmed by the
supreme court In Chief Justice
Hughes opinion.
The history Of the case goes back,
probably, to the declaration Of mar
tial law in Oklahoma by Governor
Alfalfa" Bill Murray of that state.
At least the Murray action was COM
monty accepted as the pattern fol-
lowed by Sterling, his neighboring
chief executive.
At any rate the battle with the
Texas oil producers began in the legis-
lature with enactment in 1881 Of q
state conservation law. Under its
terms the state railroad board at
tempted to limit production but the
federal district court temporarily en-
joined the state body from enforcing
its orders pending hearing by the
court on the justice of its action. The
producers claimed they were being de-
prived of their property without due
process Of law" as promised by the
federal constitution.
Sterling Set Own Limits
1t was into this situation that Gov
ernor Sterling stepped with the dec
laration of martial law and the en-
forcement Of orders which curtailed
the production Of oil. Where the fed
eral court set daily limit of 5000
barrels per well, the military authori-
ties fixed a limit of 165 barrels. This
was later reduced to $50 and still later
to 125.
General Wolters, in command of
state troops, invaded the oil fields
and made the orders stick" Where
upon he was adjudged in contempt OF
the federal court, an uncomfortable
situation even for brigadier.
The order was extended to w. w.
Sterling and Governor Sterling and
they were enjoined from continuing
the unwarranted interference with the
actions of the judiciary, the civil au-
thorities and the oil operators. It
was on appeal from this order that
the case came to the supreme court.
The lower court found that at no
time had there been a condition re-
sembling state of war and that, un-
less the governor may, by proclama-
ton, create an irrebutable presump-
ton that state of war exists, the &C.
tons of the governor and his staff
may not be justified on the ground Of
military necessity"
Governor Sterling has contended
that state of war was approaching
and that use of troops was necessary
to prevent threatened instruction,
strife and disorder. It also was argued
that the governor had power to de-
clare martial law: that courts may
not review the sufficiency of facts up
on which martial law Is declared; that
the courts may not control by injunc-
ton the means Of enforcing martial
law and that finding by the COVER
nor of the necessity to take property
is due process Of law.
Justice Hughes answered with q
vigorous "No' to all of these conten-
tions, asserting that q governor is in
no different position from any other
state official, that he obtains his pow
er from the law and must himself
obey it.
Governor Not Supreme
Commenting on Sterling's conten-
ton that "the governors order had
the quality Of supreme and unchal-
lenged edict, overriding all conflicting
rights Of property and Unbelievable
throu, B the judicial power of the fed
eral government" Justice Hughes
said:
IF this extreme position could be
deemed to be well taken 1t Is manifest
that the fiat of state governor and
not the constitution of the United
States would be the supreme law of
the land; that the restrictions Of the
federal constitution upon the exercise
of state power would be but impotent
phrases, the futility of which the state
may at any time disclose by the SIM
pie process Of transferring powers Of
legislation to the governor, to be ex-
erciSed by him, beyond control, upon
his assertion Of necessity. Under our
system of government such q conclu-
sion is obviously untenable."
After asserting that the courts al
ways retain power to review the JUS
tice of a governors acts in calling out
the militia or the necessity therefore
and their superiority to the military
power, Justice Hughes said Of the re-
lations between Governor Sterling
and the oil men:
Sought to Defeat Law
Instead of affording them protec-
ton in the lawful exercise Of their
rights as determined by the courts. he
sought, by his executive orders, to
make that exercise impossible. In
place Of the judicial procedure. avail
able in the courts which were open
and functioning, he set up his execu-
tive commands which brooked neither
delay nor appeal. He interposed
the obstruction Of his will, subverting
the federal authority"
What governor may and may not
do by virtue Of his control Of state
militia force Is pretty thoroughly set
forth in the body Of the opinion but
the net result may be boiled down to
a few words. They are: HE can do
nothing not permitted by civil law"
Lawyers and political observers here
regard the strong language Of the de-
cision as containing q decided hint to
other governors with q flare for using |
the states military power, such as
Governor Murray Of Oklahoma. It
also may have bearing on future de-
velopments In the Northwest where
Governor-Elect William LANCER Of |
49, q A. -