viewed with reference to the law of the
land as embodied in the United States
Supreme Court's leading opinion upon
"martial law" and due process, Sterling
v. Constantin34
In 1932, Governor Sterling of Texas
declared "martial law" in several oil-
producing counties of the state in
order to halt the wasteful production
of oil contrary to a conservation statute;
he was thus overriding a federal court
order issued against the conservation
commission in favor of the oil-producers.
The central issue was whether a gov-
ernor's declaration of "martial law" is a
"supreme and unchallengeable edict,
overriding all conflicting rights of prop-
erty and unreviewable through the
judicial power of the Federal Govern-
ment. 35 The Court answered that the
governor's discretion, albeit broad, is
conditioned by the Fourteenth Amend-
ment's Due Process Clause36 and that
"where there is a substantial showing
that the exertion of state power has
overridden private rights secured by the
Constitution, the subject is necessarily
one for judicial inquiry . . . ."37
In enforcing the laws, a governor
"must of necessity, enjoy a broad dis-
cretion,"38 and "a permitted range of
34 Sterling v. Constantin, 287 U.S. 378
(1932).
35 Id. at 397.
36 Maryland's Declaration of Rights equiva-
lent is article 23.
37 Sterling v. Constantin, 287 U.S. 398
(1932).
38 Ibid.
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honest judgment as to the measures to
be taken in meeting force with force,
in suppressing violence and restoring
order, for without such liberty to make
immediate decisions, the power itself
would be useless."39
The Court recalled the still vibrant
language of Chief Justice Taney :
"... that in all of these cases the
danger must be immediate and im-
pending, or the necessity urgent for
the public service, such as will not
admit of delay, and where the action
of the civil authority would be too
late in providing the means which the
occasion calls for .... Every case
must depend on its own circum-
stances. It is the emergency that gives
the Right, and the emergency must be
shown to exist before the taking can
be justified."40
In conclusion, let it be said that
although a governor's employment of
the militia is not an absolute matter, he
does necessarily have the constitutional
authority and mandate to act through
the military arm whenever civil violence
is imminent. The country knows many
misuses of the power, but the existence
of the power cannot be doubted. It is
rooted in the common law and common
sense. It is a principle of necessity and
as necessity commands, so must the gov-
ernor take action.
39 Id. at 399-400.
40Mitchell v. Harmony, 54 U.S. 115, 134
(1851).
305
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