frequency of elections, and the watchfulness of the representatives of the nation, carry with them all the checks which can be useful to guard against usurpation or wanton tyranny. * * * 13

13 "The first and second objections to the pleas are wholly untenable. It is not necessary to allege that a case had occurred which gave authority to the President of the United States to call forth the militia, under the act of the 28th of February, 1795. That act, after enumerating the cases, on the occurrence of which the militia may be called into the public service of the United States, vests in the President a high discretionary power. He, and he alone, is made the judge, as well of the happening of the events on which the militia may be called forth, as of the number, time and destination of that species of force. In every case in which the President acts under that law, he acts upon his responsibility under the Constitution. If it was necessary to the validity of these pleas to state, either that the United States were invaded, or in imminent danger of invasion, or that the laws of the United States were opposed, or the execution thereof obstructed, the matter thus stated would be issuable, and the plaintiff might, in his replication, take issue on them, and oblige the defendant to prove the occurrence of a case specified in the act; and thus every subordinate officer. who should be called into service, would be put to the necessity, when he was sued for any act of discipline upon the privates, to prove to a jury that the President had acted correctly in making his requisitions, and if he failed in this proof it would subject him to. damages for an act otherwise lawful. To countenance such a construction of the act would be monstrous. Every trial would either subject all the archives of state to an examination before the court and jury, or the defendant would inevitably be found guilty. No man would dare to obey the orders, either of the President, or of his superior officer, lest, peradventure, the President had either abused his authority, or misjudged in relation to the occurrence of the fact which authorized him to call forth the militia. It is a general and sound principle that whenever the law vests any person with a power to do an act, and constitutes him a judge of the evidence on which the act may be done, and, at the same time, contemplates that the act is to be carried into effect through the instrumentality of agents, the person thus clothed with power is invested with discretion, and is, quoad hoc, a judge. His mandates to his legal agents, on his declaring the event to have happened, will be a protection to those agents; and it is not their duty or business to investigate the facts thus referred to their superior, and to rejudge his determination. In a military point of view, the contrary doctrine would be subversive of all discipline; and, as it regards the safety and security of the United States and its citizens, the consequences would be deplorable and fatal. It was not necessary, therefore, to set forth the occurrence of these events in the pleas as a justification of the defendant's conduct, because they were not, and could not, be matter of trial." Vanderheyden v. Young, 11 Johns. (N. Y.) 150, 157 (1814).

*

Compare Wise v. Withers, 3 Cranch, 331, 2 L. Ed. 457 (1805)-distress for nonpayment of militia fine; action of trespass against the collector-Marshall, C. J.: "The court must declare that a justice of the peace, within the District of Columbia, is exempt from the performance of militia duty. It follows, from this opinión, that a court-martial has no jurisdiction over a justice of the peace, as a militiaman; he could never be legally enrolled; and it is a principle that a decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the officer who executes it. The court and the officer are all trespassers." Also Little v. Barreme, 2 Cranch, 170, 2 L. Ed. 243 (1804), ante, p. 332.

In re BOYLE.

(Supreme Court of Idaho, 1899. 6 Idaho, 609, 57 Pac. 706, 45 L. R. A. 96 Am. St. Rep. 286.)

832,

Application of William Boyle for writ of habeas corpus. Denied. HUSTON, C. J. This is an application for a writ of habeas corpus. To the petition a general demurrer is filed. The only question presented for our determination is, does the petition state facts entitling the petitioner to the writ? The petition alleges the illegal detention of the petitioner, and sets forth the alleged cause of, and authority. for, such detention; and it is upon the alleged illegality or want of authority there for that petitioner bases his right to the writ. As to the facts set up in the petition, so far as not contradictory or conflicting, for the purposes of this decision, in so far as they are assumed to be true, do they constitute sufficient ground for the issuance of the writ? It appears from the petition:

That on the 4th day of May, 1899, the Governor of the state of Idaho issued the following proclamation:

"State of Idaho, Executive Office.

"Whereas, it appearing to my satisfaction that the execution of process is frustrated and defied in Shoshone county, state of Idaho, by bodies of men and others, and that combinations of armed men to resist the execution of processes and to commit deeds of violence exist in said county of Shoshone; and whereas, the civil authorities of said county of Shoshone do not appear to be able to control such bodies of men, or prevent the destruction of property and other acts of violence; and whereas, on Saturday, the 29th day of April, 1899, at or near the town of Wardner Junction, in said county of Shoshone, state of Idaho, an armed mob did then and there wantonly destroy property of great value, with attendant loss of life; and whereas, said destruction of property, with attendant loss of life, by mob violence, as above set forth, is but one and a repetition of a series of similar outrages covering a period of six years or more just passed, the perpetrators of said outrages seeming to enjoy immunity from arrest and punishment through subserviency of peace officers of said county of Shoshone, or through fear on the part of said officers to such bodies of lawless and armed men;' and whereas, I have reason to believe that similar outrages may occur at any time, and believing the civil authorities of said county of Shoshone are entirely unable to preserve order and protect property: Now, therefore, I, Frank Steunenberg, Governor of the state of Idaho, by virtue of authority in me vested, do hereby proclaim and declare the said county of Shoshone, in the state of Idaho, to be in a state of insurrection and rebellion. In testimony whereof, I have hereunto set my hand and caused to be affixed the great seal of the state. Done at the city of Boisé, the capital of the state of Idaho, this 4th day of May, A. D. 1899, and of the

х

independence of the United States of America, the one hundred and
twenty-third.
Frank Steunenberg.

"By the Governor: M. Patrie, Secretary of State."

That thereafter, upon the call of the Governor, a military force was sent into said Shoshone county by the President of the United States, which proceeded at once to secure the arrest of the parties engaged in and who committed the outrages of the 29th of April for the purpose of bringing such parties before the proper tribunal for trial.

Among the parties who were arrested as being implicated in the murders, and other crimes resulting from the insurrection, riot, or rebellion of the 29th of April, was the petitioner, and he bases his claim to be discharged from such arrest upon various grounds: “(1) No insurrection, riot, or rebellion now exists in Shoshone county. (2) The Governor has no authority to proclaim martial law, or suspend the writ of habeas corpus. (3) That martial law does not exist in Shoshone county, and has not been proclaimed in said Shoshone county by any one having authority to make such proclamation. (4) That the little disturbance of the 29th of April is over; that the parties implicated in it, after having destroyed about a quarter of a million dollars

unfau dalent of property, and committed several murders, have retired to their of sport. they ought not to be disturbed. (5) That the Governor had no right #

homes; and that, in recognition of the inalienable rights of the citizen,

or authority to send an agent or representative to Shoshone county to consult and advise with the military officer sent there by the federal government to assist in putting down the insurrection and restoring order in said county."

Counsel have argued ably and ingeniously upon the question as to whether the authority to suspend the writ of habeas corpus rests with the legislative or executive power of the government; but, from our view of this case, that question cuts no figure. We are of the opinion that whenever, for the purpose of putting down insurrection or rebellion, the exigencies of the case demanded for the successful accom

Sue Pe S.D. abs bli foment ofilitary of in view, it is entirely competent for the executive 15yrs ago

or for the military officer in command, if there be such, either to suspend the writ or disregard it, if issued. The statutes of this state make it the duty of the Governor, whenever such a state or condition exists as the proclamation of the Governor shows does and has existed in Shoshone county for the past six or seven years, to proclaim such locality in a state of insurrection, and to call in the aid of the millitary of the state, or of the federal government, to suppress such insurrection, and re-establish permanently the ascendency of the law. It would be an absurdity to say that the action of the executive, under such circumstances, may be negatived, and set at naught by the judiciary, or that the action of the executive may be interfered with or impeded by the judiciary. If the courts are to be made a sanctuary, a city of refuge, whereunto malefactors may flee for protection from punishment justly due for the commission of crime, they will soon cease to

be that palladium of the rights of the citizen so ably described by counsel.

Section 7405 of the Revised Statutes provides: "When an armed force is called out for the purpose of suppressing an unlawful or riotous assembly, or arresting the offenders and is placed under the direction of any civil officer, it must obey the orders in relation thereto of such civil officer."

The facts set forth in the Governor's proclamation warranted his action. It is true that some of the facts recited therein are negatived by averment in the petition, which would seem to put in issue the truth or falsity of those recitals. On application for writ of habeas corpus, the truth of recitals of alleged facts in a proclamation issued by the Governor proclaiming a certain county to be in a state of insurrection and rebellion will not be inquired into or reviewed. The action. of the Governor in declaring Shoshone county to be in a state of insurrection and rebellion, and his action in calling to his aid the military forces of the United States for the purpose of restoring good order and the supremacy of the law, has the effect to put into force, to a limited extent, martial law in said county. Such action is not in violation of the Constitution, but in harmony with it, being necessary for the preservation of government. In such case the government may, like an individual acting in self-defense, take those steps necessary to preserve its existence. If hundreds of men can arm themselves and destroy vast properties, and kill and injure citizens, thus defeating the ends of government, and the government be unable to take all needful and necessary steps to restore law and maintain order, the state will then be impotent, if not entirely destroyed, and anarchy placed in its stead.

It is no argument to say that the executive was not applied to by any county officer of Shoshone county to proclaim said county to be in a state of insurrection, and for this reason the proclamation was without authority. The recitals in the proclamation show the existence of one of two conditions, viz.: That the county officers of said county, whose duty it was to make said application, were either in league with the insurrectionists, or else, through fear of the latter, said officers refrained from doing their duty. Under the circumstances, it was the duty of the executive to act without any application from any county officer of Shoshone county. This conclusion is based upon what we deem a correct construction of the provisions of our Constitution and statutes in force, construed in pari materia. It having been demonstrated to the satisfaction of the Governor, after some six or seven years' experience, that the execution of the laws in Shoshone county, through the ordinary and established means and methods, was rendered practically impossible, it became his duty to adopt the means prescribed by the statute for establishing in said county the supremacy of the law, and insure the punishment of those by whose unlawful and criminal acts such a condition of things has been brought about; and

it is not the province of the courts to hinder, delay, or place obstructions in the path of duty prescribed by law for the executive, but rather to render to him all the aid and assistance in their power in his efforts to bring about the consummation most devoutly prayed for by every good and law-abiding citizen in the state.

The various questions raised by counsel have been considered by the court, and it is our conclusion that the petition does not state facts which show that the writ demanded ought to issue; wherefore the said demurrer has been sustained, and the writ denied. QUARLES and SULLIVAN, JJ., concur.14

SECTION 71-TAXATION AND REVENUE-JURISDICTIONAL PREREQUISITES

McLEAN v. JEPHSON.

(Court of Appeals of New York, 1890. 123 N. Y. 142. 25 N. E. 409, 9 L. R. A. 493.)

RUGER, C. J. This was an application to the Supreme Court by the receiver of taxes in the city of New York, under section 857 of the city charter (chapter 410, Laws 1882), for a warrant to enforce the payment of a tax upon personal property by a nonresident. The section authorizing the proceeding reads as follows: "In case of the refusal or neglect of any person to pay any tax imposed on him for personal property, if there be no goods or chattels in his possession upon which the same may be levied by distress and sale according to law, and if the property assessed shall exceed the sum of one thousand dollars, the said receiver, if he has reason to believe that the person taxed has debts, credits, choses in action, or other personal property, not taxed elsewhere in this state and upon which levy cannot be made according to law, may thereupon, in his discretion, make application within one year to the court of common pleas of the county, or the Supreme Court, to enforce the payment of such tax."

The application was based upon a petition alleging the imposition. of the tax upon the defendant in the year 1883, as a nonresident doing business and having capital invested therein, in the city of New

14 See, also, Com. ex rel. Wadsworth v. Shortall, 206 Pa. 165, 55 Atl. 952, 65 L. R. A. 193, 98 Am. St. Rep. 759 (1903).

Other cases illustrating the appeal to the courts against the exercise of military or executive power; Mostyn v. Fabrigas, Cowper, 161 (1774); Little v. Barreme, 2 Cranch, 170, 2 L. Ed. 243 (1804); Georgia v. Stanton, 6 Wall. 50, 18 L. Ed. 721 (1867); Mississippi v. Johnson, 4 Wall. 475, 18 L. Ed. 437 (1866).