LEWIS, District Judge.
There is nothing'on the face of the above provisions of the Colorado Constitution which brings it in conflict with the fourteenth article of amendment to the Constitution of the United States, and the complaint here may be said to be against the manner of enforcing said provisions. It is true that if state officers, in the exercise of their official authority, deny to any citizen the guaranties found in said amendment, it is the state itself which does it, and such acts, therefore, come within the constitutional prohibitions. Ex parte Virginia, 100 U. S. 313, 25 L. Ed. 667; Railway Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979; Reagan v. Trust Co., 154 U. S. 390, 14 Sup. Ct. 1047, 38 L. Ed. 1014. The officer, howeveiy 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.
It is obvious that the provisions above quoted from the Constitution of Colorado are but the emmciation of a sovereign power, a power founded on necessity and inherent in every government. It is sometimes likened to that of self-defense. “The life of governments is like that of a man; the latter has a right to kill, in case of natural defense; the former have the right to wage war for their own preservation.” It is the declaration of the right of self preservation and finds recognition in every Constitution, both national and state. It is properly invoked in all governments to repel invasion by foes without, and to suppress rebellion or insurrection by enemies or powerful disturbers of the peace within. Unless this right and power exist, peace, good order, security — government itself — may be destroyed and obliterated by internal strife and lawlessness, 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 its constitution. The provision in section 4 of article 4 of the U. S. Constitution guaranties every state against violence. The national government possesses the same right and power, as declared in section 8 of article 1 of its Constitution.
These fundamental principles were not seriously questioned on argument, but the contention was that the plaintiff has a right to go to the country on the issue of fact: Did insurrection exist?
1. Judicial tribunals presuppose the existence of a civil state, hence governmental integrity is, ex necessitate, a political question and not a judicial one. This principle was recognized and announced in Philips v. Hatch, 1 Dill. 571, Federal Cas. No, 11,094.
In U. S. v. 129 Packages, Federal Cas. No. 15,941, Judge Treat, in discussing the respective powers of the executive and judicial departments of the government in treating with and suppressing insurrection, said:
“The condition of peace or war, public or civil, in a legal sense, must be determined by the political department, not the judicial. The latter is bound [875]*875by the decision liras made. * * * Tlie same doctrine bas been uniformly maintained from the commencement of the government. The absurdity of any other rule is manifest. If, during the actual clash of arms, courts were rightfully hearing evidence as lo the fact of war, either with or without the aid of juries determining the question, they should have power to enforce their decisions. In case of foreign conflicts neither belligerent would be likely to yield to 1he decision; and in case of insurrection, the insurgents already in arms against the Constitution and laws, would not cease their rebellion in obedience to a judicial decree. In short, the status of the country as to peace or war, is legally determined by the political and not the judicial department. When the decision is made the courts are concluded thereby, and bound to apply the legal rules which belong to that condition. The same power which determines the existence of war or insurrection, must also decide when hostilities have ceased — that is, when peace is restored. In a legal sense, the state of war or peace is not a question in pais for courts to determine. It is a legal fact ascertainable only from the decision of the- political department.”
In Keely v. Sanders, 99 U. S. 441, at page 446, 25 L. Ed. 327, Mr. Justice Strong, in delivering the opinion of the court said:
‘‘Jfurther than this, whether the military authority had been established in Shelby counts’ before the commissioners entered upon the discharge of their duties, is a political question, to be answered by the executive branch of the government, and not by the courts. In its nature it was incapable of being determined by the latter. Successive juries might give to it different and contradictory answers.”
In the noted case of Luther v. Borden, 7 How. 1, 12 L. Ed. 581, Mr. Justice Taney, after adverting to the principle that it is not a judicial hut an executive function to determine when an insurrection exists, added:
“Yet if this right does not reside in the courts when the conflict is raging, if 1he judicial power is at that time hound to follow the decision of the political, it must be equally bound when the contest is over. It cannot, when peace is restored, punish as offenses and crimes the acts which- it before recognized, and was bound to recognize, as lawful.”
In re William Boyle (Idaho) 57 Pac. 706, 45 L. R. A. 832, it was held:
“On application for writ of habeas corpus, the truth of the recitals of alleged facts in a proclamation issued by the governor proclaiming a certain comity to be in a state of insurrection and rebellion, will not be inquired into- or reviewed.”
I therefore conclude that the existence of insurrection, as declared in the Governor’s proclamation, is not issuable.
2. Further, the plaintiff insists that he has a right to take the verdict of a jury on the issue of fact: Was the plaintiff’s arrest and detention necessary in suppressing the insurrection?
It would seem to be in keeping with principle to hold the defendants responsible by civil action for a wanton abuse of power. In Luther v. Borden, supra, it is said:
“No more force, however, can be used than is necessary to accomplish the object. And if the power is exercised for purposes of oppression, or any injury willfully done to person or x>roperty, the party by whom, or by whose order, it is committed would undoubtedly be answerable.”
But the chief justice there declared further:
“And unquestionably the state may use its military power to put down an insurrection, too strong to be controlled by the civil authorities. The power [876]*876is essential to the existence of every government, essential to tlie preservation of order and free institutions, and is as necessary to the states of this Union as to any other government.
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LEWIS, District Judge.
There is nothing'on the face of the above provisions of the Colorado Constitution which brings it in conflict with the fourteenth article of amendment to the Constitution of the United States, and the complaint here may be said to be against the manner of enforcing said provisions. It is true that if state officers, in the exercise of their official authority, deny to any citizen the guaranties found in said amendment, it is the state itself which does it, and such acts, therefore, come within the constitutional prohibitions. Ex parte Virginia, 100 U. S. 313, 25 L. Ed. 667; Railway Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979; Reagan v. Trust Co., 154 U. S. 390, 14 Sup. Ct. 1047, 38 L. Ed. 1014. The officer, howeveiy 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.
It is obvious that the provisions above quoted from the Constitution of Colorado are but the emmciation of a sovereign power, a power founded on necessity and inherent in every government. It is sometimes likened to that of self-defense. “The life of governments is like that of a man; the latter has a right to kill, in case of natural defense; the former have the right to wage war for their own preservation.” It is the declaration of the right of self preservation and finds recognition in every Constitution, both national and state. It is properly invoked in all governments to repel invasion by foes without, and to suppress rebellion or insurrection by enemies or powerful disturbers of the peace within. Unless this right and power exist, peace, good order, security — government itself — may be destroyed and obliterated by internal strife and lawlessness, 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 its constitution. The provision in section 4 of article 4 of the U. S. Constitution guaranties every state against violence. The national government possesses the same right and power, as declared in section 8 of article 1 of its Constitution.
These fundamental principles were not seriously questioned on argument, but the contention was that the plaintiff has a right to go to the country on the issue of fact: Did insurrection exist?
1. Judicial tribunals presuppose the existence of a civil state, hence governmental integrity is, ex necessitate, a political question and not a judicial one. This principle was recognized and announced in Philips v. Hatch, 1 Dill. 571, Federal Cas. No, 11,094.
In U. S. v. 129 Packages, Federal Cas. No. 15,941, Judge Treat, in discussing the respective powers of the executive and judicial departments of the government in treating with and suppressing insurrection, said:
“The condition of peace or war, public or civil, in a legal sense, must be determined by the political department, not the judicial. The latter is bound [875]*875by the decision liras made. * * * Tlie same doctrine bas been uniformly maintained from the commencement of the government. The absurdity of any other rule is manifest. If, during the actual clash of arms, courts were rightfully hearing evidence as lo the fact of war, either with or without the aid of juries determining the question, they should have power to enforce their decisions. In case of foreign conflicts neither belligerent would be likely to yield to 1he decision; and in case of insurrection, the insurgents already in arms against the Constitution and laws, would not cease their rebellion in obedience to a judicial decree. In short, the status of the country as to peace or war, is legally determined by the political and not the judicial department. When the decision is made the courts are concluded thereby, and bound to apply the legal rules which belong to that condition. The same power which determines the existence of war or insurrection, must also decide when hostilities have ceased — that is, when peace is restored. In a legal sense, the state of war or peace is not a question in pais for courts to determine. It is a legal fact ascertainable only from the decision of the- political department.”
In Keely v. Sanders, 99 U. S. 441, at page 446, 25 L. Ed. 327, Mr. Justice Strong, in delivering the opinion of the court said:
‘‘Jfurther than this, whether the military authority had been established in Shelby counts’ before the commissioners entered upon the discharge of their duties, is a political question, to be answered by the executive branch of the government, and not by the courts. In its nature it was incapable of being determined by the latter. Successive juries might give to it different and contradictory answers.”
In the noted case of Luther v. Borden, 7 How. 1, 12 L. Ed. 581, Mr. Justice Taney, after adverting to the principle that it is not a judicial hut an executive function to determine when an insurrection exists, added:
“Yet if this right does not reside in the courts when the conflict is raging, if 1he judicial power is at that time hound to follow the decision of the political, it must be equally bound when the contest is over. It cannot, when peace is restored, punish as offenses and crimes the acts which- it before recognized, and was bound to recognize, as lawful.”
In re William Boyle (Idaho) 57 Pac. 706, 45 L. R. A. 832, it was held:
“On application for writ of habeas corpus, the truth of the recitals of alleged facts in a proclamation issued by the governor proclaiming a certain comity to be in a state of insurrection and rebellion, will not be inquired into- or reviewed.”
I therefore conclude that the existence of insurrection, as declared in the Governor’s proclamation, is not issuable.
2. Further, the plaintiff insists that he has a right to take the verdict of a jury on the issue of fact: Was the plaintiff’s arrest and detention necessary in suppressing the insurrection?
It would seem to be in keeping with principle to hold the defendants responsible by civil action for a wanton abuse of power. In Luther v. Borden, supra, it is said:
“No more force, however, can be used than is necessary to accomplish the object. And if the power is exercised for purposes of oppression, or any injury willfully done to person or x>roperty, the party by whom, or by whose order, it is committed would undoubtedly be answerable.”
But the chief justice there declared further:
“And unquestionably the state may use its military power to put down an insurrection, too strong to be controlled by the civil authorities. The power [876]*876is essential to the existence of every government, essential to tlie preservation of order and free institutions, and is as necessary to the states of this Union as to any other government. The state itself must determine what degree of force the crisis demands and if the Governor of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the state, as to require the úse of its military, and the declaration of martini law. we see no-ground upon which this court pan question its authority. It was a state of war; and the established government resorted to the rights and usages of war to maintain itself, and to overcome the unlawful opposition. And in that state of things the officers engaged in its military service might lawfully arrest anyone, who, from the information before them, they had reasonable ground to believe was engaged in the insurrection.”
So that, the plaintiff’s arrest and detention was not dependent on his actual participation in the insurrection; and neither the Governor nor the military officers would be liable civilly for an unintentional error. Reasonable inquiry and care on their part under the circumstances as they then existed ought to relieve them from civil responsibility. The state Constitution enjoined the Governor, as such officer, to put down the insurrection. The situation must have been more or less desperate and required prompt action, effective of the purpose. Measures are sometimes necessary under the police power, that are severe, such as the summary destruction of property used for an unlawful purpose (Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385); such as treating property used in an unlawful traffic as a nuisance (Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346); such as the summary destruction of property to stay conflagration (Bowditch v. Boston, 101 U. S. 16, 25 L. Ed. 980); such as the summary destruction of obscene books and diseased cattle (Sentell v. Railroad Co., 166 U. S. 698, 17 Sup. Ct. 693, 41 L. Ed. 1169); such as the restraint of personal liberty in passing either into or out of an infected district, for the extermination of contagion (Compagnie Francaise, etc., v. Board, 186 U. S. 380, 22 Sup. Ct. 811, 46 L. Ed. 1209), and the prohibitions ■ found in the fourteenth amendment have never been construed to be an encroachment on such a proper exercise of that power; neither is it believed that said prohibitions can be so construed as an encroachment upon the exercise of the military power within the lines here indicated — invoked to protect the very life of the social body. In both -cases we find their right and justification in the maxim, “Salus populi, suprema lex.”
Rooking to the facts, it appears clear that the complaint here is not against an abuse of power, but the exercise- of power. It is alleged that plaintiff was arrested without warrant issued on a written charge against him — that he was not taken into court. . The very principle announced in the state Constitution.is challenged in practical effectiveness by the declaration. The existence of the insurrection itself is denied. The right and power to use the necessary means to put it down is disputed;' and beside this the reply to the return to the writ of habeas corpus gave some color to the reasonableness of the belief that the arrest of the plaintiff was not an abuse of power, for ;it is therein said that he was president of the Western Federation of Miners, •whóse members had been deported from -San Miguel county, and who [877]*877intended to' return, and whose return would likely be forcibly resisted. This condition filone threatened riot and bloodshed. On one side was a body of determined men of whom the plaintiff was the official head, and whose counsel and advice under the circumstances had been most likely taken. It may likewise he said that it would have also been the duty of those in authority of the , military forces to have taken into custody those who occupied the position of leaders, if any, on the other side of the conflict. And beyond this, the procedings in habeas corpus presented to the Supreme Court the then situation in San Miguel county, and the reason for the arrest and detention of the plaintiff up to that time. These facts under the issues were weighed and considered by that court in the light of the constitutional provision and the principles of law controlling in such emergencies. The prisoner was. remanded to the custody of the defendants. This was done, and could only have been done, on the conclusion that his arrest and detention were reasonable and proper means in the suppression of the insurrection. In rendering its opinion that court, among other things, said:
“To deny tlie right of the militia to detain those whom they arrest while engaged in suppressing acts of violence, until order is restored, would lead to the most absurd results. * * * His arrest and detention in such circumstances are merely to prevent him from taking part, or aiding in a continuation of the conditions which the Governor, in the discharge of his official duties, and in the exercise of the authority conferred by law, is endeavoring to suppress." In re Moyer (Colo.) 83 Pac. 190.
My learned predecessor, Judge Hallett, refused to discharge one Sherman Parker, on a like application, while he was held by the military authorities during the same unfortunate period in the state’s history, and in discharging the writ in that case, he justified the arrest and detention of the prisoner as a proper means of suppressing the insurrection.
It follows that the facts disclosed do not show an abuse of power on the part of the defendants, and, hence, there was no violation of the prohibitions found in the fourteenth amendment. It results that this court has not jurisdiction. The demurrer ought to he sustained. It is so ordered.