The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1885-05-22
ANOTHER DECISION.

. F. q
Fudge Foster. q the United States District
Court for Ksusss. Decides Against the
ProhIbitory Law.
TOPEKA, KAN, May 15.--Judge c. G.
Foster, of the United States District Court,
yesterday rendered an opinion in the habeas
corpus case from Atcllison County. Her.
mann Zibold had been sent to jail by the
County Attorney for refusing to answer
questions put to him concerning an alleged
violation of the prohibitory law. He
claimed to be restrained of his liberty
against the provisions Of the fourteenth
amendment to the constitution, and asked
to be released. The court finds that the ar.
rest is illegal and releases Zibold. After
discussing at length the meaning of the
term due process of law" and the power
of the Legislature to confer ministerial and
judicial duties upon an officer, Judge Foster
says: The serious objection urged to the
law under consideration is that the County
Attorney is the Public Prosecutor for the
State. He is the
INFORMER AGAINST OFFENDERS.
and on his information parties charged with
crime are put on trial. The judicial powers
conferred on him by this law are not to
hear and determine matters in which he
stands i'm difference between the parties, but
are to give aid and assist him i'm the perform
Ince of his ministerial duties, and have no
other purpose of making the judicial power
auxiliary and subordinate to the ministerial
duties, and are given him as means by
which he can more successfully procure ev-
idence to institute and carry on prosecu-
tons, and in this respect the powers given
him are very great, and in the hands of an
INSCRIPTIONS man, stimulated by animOsity
or avarice, could be used as an instrument
IF sore oppression. On the mere unsworn
statement of any person, and without any
case pending before him, it Is made his
duty, under severe penalties, to set this
judicial machinery in motion, with
no restriction rs to whom he shall
summon before him to testify,
and no limitation but his own
good will as to the scope of his investiga-
ton. fortified by power to exact answers
70 any questions he sees proper to ask,
almost despotic in its severity. The wit
ness must answer the question or go to jail
for contempt. 1t may be answered that
such is the case i'm all trials; but there is
this wide difference. without it a court is
powerless to enforce its orders or protec.
its dignity. In trial in open court OF.
issues made up between the parties, the
relevancy and competency of the question
submitted TO the court, and the argument
of the counsel is heard; the rights of the
witness as well as the party are discussed,
considered and decided, and what makes
the power given by the law still more
DANGEROUS AND OBJECTIONABLE
is that the law makes it to the interest of
the Judge County Attorney to find the
evidence of an offense committed. He is
offered a reward to excite his vigilance and
cupidity, and threatened with severe pun
ishment if he fails or negects to faithfully
perform those duties. In some respects
these duties are sin;'af to those of grand
jury and court combined. Tie proceedings
are preliminary to ascertain if there is prob
able cause to charge tae party with the o.:
fense, but a grand juror may be challenged
on the ground that he is prosecutor or COM
plainant, or 4 witness upon a charge COM
ing before him for investigation. Statutes
20, page T42. section ~ Nor can grand
jury issue a subpoena for witnesses or de-
eide the competency of question asked, or
punish for contempt. These matters rest
with the court (sections IS. ST, 81 and $751;
This provision of the act of March Z, 1885,
10 q vi
ministerial duties aided with rewards and
penalties, and so far as l have been able to
ascertain is an anomaly to all the judicial
proceedings known to the land. Ii attempts
to unite the judicial with the executive
branch of the civil government, and when
the law making the power which declares
and applies, as well as that which executes
and administers the law, are united and
vested in one person or body, it becomes
A DESPoTIC AND NOT A CONSTITUTIONAL.
Government. Are these objections sutfi-
cient to justify court in the conclusion
that a person restricted of his liberty under
these proceedings is deprived of his liberty
without due process of law? l am COM
PEELED to answer in the affirmative. / be-
heve 10 precedent can be found for the ap-
plcation and use of judicial power in the
manner and for the purpose contemplated
Ny this act, and that it is dangerous inno-
vatOn on the fixed maXims and rules in the |
of justice established for the
protection of private rights. In this con-
cllsion l am also sustained by recent de- |
cisiOn of Judge CrOzier of the First Judicial |
district. 1t is therefore ordered that the pc |
titioner be discharged from custody"