Herman Presser, the plaintiff in error, was indicted on September 24, 1879, in the criminal court of Cook county, Illinois, for a violation of the following sections of article 11 of the Military Code of that state, (Act May 28, 1879; Laws 1876, 192:) 'Sec. 5. It shall not be lawful for any body of men whatever, other than the regular organized volunteer militia of this state, and the troops of the United States, to associate themselves together as a military company or organization, or to drill or parade with arms in any city or town of this state, without the license of the governor thereof, which license may at any time be revoked: and provided, further, that students in educational institutions, where military science is a part of the course of instruction, may, with the consent of the governor, drill and parade with arms in public, under the superintendence of their instructors, and may take part in any regimental or brigade encampment, under command of their military instructor; and while so encamped shall be governed by the provisions of this act. They shall be entitled only to transportation and subsistence, and shall report and be subject to the commandant of such encampment: Provided, that nothing herein contained shall be construed so as to prevent benevolent or social organizations from wearing swords. Sec. 6. Whoever offends against the provisions of the preceding section, or belongs to, or parades with, any such unauthorized body of men with arms, shall be punished by a fine not exceeding the sum of ten dollars, ($10,) or by imprisonment in the common jail for a term not exceeding six months, or both.' The indictment charged in substance that Presser, on September 24, 1897, in the county of Cook, in the state of Illinois, 'did unlawfully belong to, and did parade and drill in the city of Chicago with, an unauthorized body of men with arms, who had associated themselves together as a military company and organization, without having a license from the governor, and not being a part of, or belonging to, 'the regular organized volunteer militia' of the state of Illinois, or the troops of the United States.' A motion to quash the indictment was overruled. Presser then pleaded not guilty, and, both parties having waived a jury, the case was tried by the court, which found Presser guilty and sentenced him to pay a fine of $10. The bill of exceptions taken upon the trial set out all the evidence, from which it appeared that Presser was 31 years old, a citizen of the United States and of the state of Illinois, and a voter; that he belonged to a society called the 'Lehr und Wehr Verein,' a corporation organized April 16, 1875, in due form, under chapter 32, Rev. St. Ill., called the 'General Incorporation Laws of Illinois,' 'for the purpose,' as expressed by its certificate of association, 'of improving the mental and bodily condition of its members so as to qualify them for the duties of citizens of a republic. Its members shall, therefore, obtain, in the meetings of the association, a knowledge of our laws and political economy, and shall also be instructed in military and gymnastic exercises;' that Presser, in December, 1879, marched at the head of said company, about 400 in number, in the streets of the city of Chicago, he riding on horseback and in command; that the company was armed with rifles, and Presser with a cavalry sword; that the company had no license from the governor of Illinois to drill or parade as a part of the militia of the state, and was not a part of the regular organized militia of the state, nor a part of troops of the United States, and had no organization under the militia law of the United States. The evidence showed no other facts. Exceptions were reserved to the ruling of the court upon the motion to quash the indictment, to the finding of guilty, and to the judgment thereon. The case was taken to the supreme court of Illinois, where the judgment was affirmed. Thereupon Presser brought the present writ of error for a review of the judgment of affirmance.
The opinion of the court was delivered by: Woods, J.
Allan C. Story and Lyman Trumbull, for plaintiff in error.
[Argument of Counsel from pages 255-260 intentionally omitted]
George Hunt. Atty. Gen. of Illinois, for defendant in error.
The position of the plaintiff in error in this court was that the entire statute under which he was convicted was invalid and void because its enactment was the exercise of a power by the legislature of Illinois forbidden to the states by the constitution of the United States. The clauses of the constitution of the United States referred to in the assignments of error were as follows:
'Article 1, § 8. The congress shall have power * * * to raise and support armies; * * * to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by congress; * * * to make all laws which shall be necessary and proper, for carrying into execution the foregoing powers,' etc.
'Article 1, § 10. No state shall, without the consent of congress, keep troops * * * in time of peace.'
'Art. 2 of Amendments. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.'
The plaintiff in error also contended that the enactment of the fifth and sixth sections of article 11 of the Military Code was forbidden by subdivision 3 of section 9 of article 1, which declares 'no bill of attainder or ex post facto law shall be passed,' and by article 14 of Amendments, which provides that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law.'
The first contention of counsel for plaintiff in error is that the congress of the United States having, by virtue of the provisions of article 1 of section 8, above quoted, passed the act of May 8, 1792, entitled 'An act more effectually to provide for the national defense by establishing an uniform militia throughout the United States,' (1 St. 271,) the act of February 28, 1795, 'to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,' (1 St. 424,) and the act of July 22, 1861, 'to authorize the employment of volunteers to aid in enforcing the laws and protecting public property,' (12 St. 268,) and other subsequent acts, now forming 'Title 16, The Militia,' of the Revised Statutes of the United States, the legislature of Illinois had no power to pass the act approved May 28, 1879, 'to provide for the organization of the state militia, entitled the 'Military Code of Illinois," under the provisions of which (sections 5 and 6 of article 11) the plaintiff in error was indicted.
The argument in support of this contention is, that the power of organizing, arming, and disciplining the militia being confided by the constitution to congress, when it acts upon the subject, and passes a law to carry into effect the constitutional provision, such action excludes the power of legislation by the state on the same subject.
It is further argued that the whole scope and object of the Military Code of Illinois is in conflict with that of the law of congress. It is said that the object of the act of congress is to provide for organizing, arming, and disciplining all the able-bodied male citizens of the states, respectively, between certain ages, that they may be ready at all times to respond to the call of the nation to enforce its laws, suppress insurrection, and repel invasion, and thereby avoid the necessity for maintaining a large standing army, with which liberty can never be safe, and that, on the other hand, the effect if not object of the Illinois statute is to prevent such organizing, arming, and disciplining of the militia.
The plaintiff in error insists that the act of congress requires absolutely all able-bodied citizens of the state, between certain ages, to be enrolled in the militia; that the act of Illinois makes the enrollment dependent on the necessity for the use of troops to execute the laws and suppress insurrections, and then leaves it discretionary with the governor by proclamation to require such enrollment; that the act of congress requires the entire enrolled militia of the state, with a few exemptions made by it and which may be made by state laws, to be formed into companies, battalions, regiments, brigades, and divisions; that every man shall be armed and supplied with ammunition; provides a system of discipline and field exercises for companies, regiments, etc., and subjects the entire militia of the state to the call of the president to enforce the laws, suppress insurrection, or repel invasion, and provides for the punishment of the militia officers and men who refuse obedience to his orders. On the other hand, it is said that the state law makes it unlawful for any of its able-bodied citizens, except 8,000, called the 'Illinois National Guard,' to associate themselves together as a military company, or to drill or parade with arms without the license of the governor, and declares that no military company shall leave the state with arms and equipments without his consent; that even the 8,000 men styled the 'Illinois National Guard' are not enrolled or organized as required by the act of congress, nor are they subject to the call of the president, but they constitute a military force sworn to serve in the military service of the state, to obey the orders of the governor, and not to leave the state without his consent; and that, if the state act is valid, the national act providing for organizing, arming, and disciplining the militia is of no force in the state of Illinois, for the Illinois act, so far from being in harmony with the act of congress, is an insurmountable obstacle to its execution.
We have not found it necessary to consider or decide the question thus raised as to the validity of the entire Military Code of Illinois, for, in our opinion, the sections under which the plaintiff in error was convicted may be valid, even if the other sections of the act were invalid. For it is a settled rule 'that statutes that are constitutional in part only will be upheld so far as they are not in conflict with the constitution, provided the allowed and prohibited parts are separable.' Packet Co. ...