What is due process of law depends on circumstances, and varies
with the subject matter and necessities of the situation.
An officer of a state interfering with an individual's rights in
an unconstitutional manner derives no protection from personal
liability on account of his office.
The declaration of the governor of a state that a state of
insurrection exists is conclusive.
Where the constitution and laws of a state give the governor
power to suppress insurrection by the National Guard, as is the
case in Colorado, he may also seize and imprison those resisting,
and is the final judge of the necessity for such action, and when
such an arrest is made
Page 212 U. S. 79
in good faith, he cannot be subjected to an action therefor
after he is out of office on the ground that he had not reasonable
cause.
Public danger warrants the substitution of executive for
judicial process, and the ordinary rights of individuals must yield
to what the executive honestly deems the necessities of a critical
moment.
Without deciding other questions as to the jurisdiction of the
circuit court,
held that the declaration of plaintiff in
error in this case against the former governor of Colorado for
arrest and detention during a period of insurrection does not give
the circuit court jurisdiction thereof under § 629 or 1979,
Rev.Stat., as a suit authorized by law brought to redress the
deprivation of a constitutional right.
148 F. 870 affirmed.
The facts are stated in the opinion.
Page 212 U. S. 82
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action brought by the plaintiff in error against the
former Governor of the State of Colorado, the former adjutant
general of the national guard of the same state, and a captain of a
company of the national guard, for an imprisonment of the plaintiff
by them while in office. The complaint was dismissed on demurrer,
and the case comes here on a certificate that the demurrer was
sustained solely on the ground that there was no jurisdiction in
the circuit court. 148 F. 870.
The complaint alleges that the imprisonment was continued from
the morning of March 30, 1904, to the afternoon of June 15, and
that the defendants justified under the Constitution of Colorado,
making the Governor commander in chief of the state forces, and
giving him power to call them out to execute laws, suppress
insurrection, and repel invasion. It alleges that his imprisonment
was without probable cause, that no complaint was filed against the
plaintiff, and that (in that sense) he was prevented from having
access to the courts of the state, although they were open during
the whole time, but it sets out proceedings on habeas corpus,
instituted by him before the supreme court of the state, in which
that court refused to admit him to bail and ultimately discharged
the writ. 35 Colo. 154, and 35 Colo. 159. In those proceedings, it
appeared that the Governor had declared a county to be in a state
of insurrection, had called out troops to put down the trouble,
and
Page 212 U. S. 83
had ordered that the plaintiff should be arrested as a leader of
the outbreak, and should be detained until he could be discharged
with safety, and that then he should be delivered to the civil
authorities, to be dealt with according to law.
The jurisdiction of the circuit court, if it exists, is under
Rev.Stat. § 629, Sixteenth. That clause gives original
jurisdiction
"of all suits authorized by law to be brought by any person to
redress the deprivation, under color of any law, statute,
ordinance, regulation, custom, or usage of any state, of any right,
privilege, or immunity secured by the Constitution of the United
States, or of any right secured by any law providing for equal
rights of citizens of the United States, or of all persons within
the jurisdiction of the United States."
The complaint purports to be founded upon the Constitution and
on Rev.Stat. § 1979, which authorizes suit to be brought for such
deprivation as above described. Therefore, the question whether the
complaint states a case upon the merits under § 1979 in this
instance is another aspect of the question whether it states a case
within the jurisdiction of the court under § 629, cl. 16. Taken
either way, the question is whether this is a suit authorized by
law -- that is, by § 1979, or the Constitution, or both.
The plaintiff's position, stated in a few words, is that the
action of the Governor, sanctioned to the extent that it was by the
decision of the supreme court, was the action of the state, and
therefore within the Fourteenth Amendment, but that, if that action
was unconstitutional, the Governor got no protection from personal
liability for his unconstitutional interference with the
plaintiff's rights. It is admitted, as it must be, that the
Governor's declaration that a state of insurrection existed is
conclusive of that fact. It seems to be admitted also that the
arrest alone would not necessarily have given a right to bring this
suit.
Luther v.
Borden, 7 How. 1,
48 U. S. 45-46.
But it is said that a detention for so many days, alleged to be
without probable cause at a time when the courts were open, without
an attempt to bring the plaintiff before them, makes a case on
which he has a right to have a jury pass.
Page 212 U. S. 84
We shall not consider all of the questions that the facts
suggest, but shall confine ourselves to stating what we regard as a
sufficient answer to the complaint, without implying that there are
not others equally good. Of course, the plaintiff's position is
that he has been deprived of his liberty without due process of
law. But it is familiar that what is due process of law depends on
circumstances. It varies with the subject matter and the
necessities of the situation. Thus, summary proceedings suffice for
taxes, and executive decisions for exclusion from the country.
Murray v. Hoboken Land &
Improvement Co., 18 How. 272;
United States v.
Ju Toy, 198 U. S. 253,
198 U. S. 263.
What, then, are the circumstances of this case? By agreement, the
record of the proceedings upon habeas corpus was made part of the
complaint, but that did not make the averments of the petition for
the writ averments of the complaint. The facts that we are to
assume are that a state of insurrection existed and that the
Governor, without sufficient reason, but in good faith, in the
course of putting the insurrection down, held the plaintiff until
he thought that he safely could release him.
It would seem to be admitted by the plaintiff that he was
president of the Western Federation of Miners, and that, whoever
was to blame, trouble was apprehended with the members of that
organization. We mention these facts not as material, but simply to
put in more definite form the nature of the occasion on which the
Governor felt called upon to act. In such a situation, we must
assume that he had a right, under the state constitution and laws,
to call out troops, as was held by the supreme court of the state.
The constitution is supplemented by an act providing that "when an
invasion of or insurrection in the state is made or threatened, the
Governor shall order the national guard to repel or suppress the
same." Laws of 1897, c. 63, Art. 7, § 2, p. 204. That means that he
shall make the ordinary use of the soldiers to that end; that he
may kill persons who resist, and, of course, that he may use the
milder measure of seizing the bodies of those whom he considers to
stand in the way of restoring peace. Such arrests are not
necessarily
Page 212 U. S. 85
for punishment, but are by way of precaution, to prevent the
exercise of hostile power. So long as such arrests are made in good
faith and in the honest belief that they are needed in order to
head the insurrection off, the Governor is the final judge, and
cannot be subjected to an action after he is out of office on the
ground that he had not reasonable ground for his belief. If we
suppose a Governor with a very long-term of office, it may be that
a case could be imagined in which the length of the imprisonment
would raise a different question. But there is nothing in the
duration of the plaintiff's detention or in the allegations of the
complaint that would warrant submitting the judgment of the
Governor to revision by a jury. It is not alleged that his judgment
was not honest, if that be material, or that the plaintiff was
detained after fears of the insurrection were at an end.
No doubt there are cases where the expert on the spot may be
called upon to justify his conduct later in court, notwithstanding
the fact that he had sole command at the time and acted to the best
of his knowledge. That is the position of the captain of a ship.
But even in that case, great weight is given to his determination,
and the matter is to be judged on the facts as they appeared then,
and not merely in the light of the event.
Lawrence
v. Minturn, 17 How. 100,
58 U. S. 110;
The Star of
Hope, 9 Wall. 203;
The Germanic,
196 U. S. 589,
196 U. S.
594-595. When it comes to a decision by the head of the
state upon a matter involving its life, the ordinary rights of
individuals must yield to what he deems the necessities of the
moment. Public danger warrants the substitution of executive
process for judicial process.
See Keely v. Sanders,
99 U. S. 441,
99 U. S. 446.
This was admitted with regard to killing men in the actual clash of
arms, and we think it obvious, although it was disputed, that the
same is true of temporary detention to prevent apprehended harm. As
no one would deny that there was immunity for ordering a company to
fire upon a mob in insurrection, and that a state law authorizing
the Governor to deprive citizens of life under such circumstances
was consistent with the Fourteenth Amendment,
Page 212 U. S. 86
we are of opinion that the same is true of a law authorizing by
implication what was done in this case. As we have said already, it
is unnecessary to consider whether there are other reasons why the
circuit court was right in its conclusion. It is enough that, in
our opinion, the declaration does not disclose a "suit authorized
by law to be brought to redress the deprivation of any right
secured by the Constitution of the United States."
See Dow v.
Johnson, 100 U. S. 158.
Judgment affirmed.
MR. JUSTICE MOODY took no part in the decision of this case.