The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1885-06-04
r1ncr FpEUOu,s OpTNION

JUDGE FRENOH'S OPINION.
In the course of his decision, rendered
at Fort Scott on Monday, in which he
holds that the present Kansas prohlbi-
tory law is perfectly constitutional,
Judge French, speaking OF section 8
which gives certain duties to county at
torneys and which Judges Crozier and
Foster have declared unconstitutional,
says:
Now, what is the object Of this Sec
| tionl Obviously to ferret out and detect
crime, to obtain evidence so that war
rant can issue for the vlolators of the
law. This is its full scope. No one will
question but that this is Legitimate
| subject for legislation. The only ques-
ton, then, is, has the legislature Violat-
ed the constitution IN fixing the mode by
which this legitimate object Is TO be OBJ
tanned.
/ The rights of the defendants are not
sought to be jeopardised, either by seiz-
ing the person or property, except upon
a warrant duly issued; either by COM
| pellIng him to testify against himself, or
| in any other way. AS TO the power con-
ferred upon the county attorney, there Is
no inhibition in the constitution against
powers upon any officer of the state. l,
He can issue a subpoena; so can the
clerk of the court. 2. de can admins
| ter an oath, take down testimony and
have the witness sign 1t; SO can the
county surveyor. 3. He can compel q
witness to attend and testify, or send him
| to jail for contempt If he refuses; 30 can
notary public. This believe to be
the extent OF the power granted by the
section. 1t is true the section reads:
If the testimony, as taken, shall dis
close the fact that an offense has been
committed against any of the provisions
| OF this act. the county attorney Shall
| forthwith file such statement, etc.
But it requires no Judicial act. strictly
| speaking, to determine whether such tes-
| timony dIsclOses any offense. He SIM
ply uses the information thus obtained,
| the same as If a person would come 70
his Office and detail a state OF facts upon
| which, if an offense was disclosed, he,
4 as county attorney, would be bound 70
commence prosecution.
| II Is true q witness is compelled to give
testimony even If it does involve him
self, but his rights are saved In another
direction, so that such testimony cannot
be used against him. This would be
true in the absence of the statute. The
be used If IL is involuntary.
Upon the objection to the suftlciency
of the verihcatIon of the information,
which Is upon information and belief,
with the testimony of the witnesses ex-
ahmed attached thereto, the supreme
court in the case of state vs.. Gleason (32
Kansas, 245), held that such verification
without any affidavit showing probable
cause, was not good that 1t infringed sec
ton 10 of the constitution, which says
that no warrant shall issue but on prob
| able cause by oath or affirmation. 1t
| certainly is legitimate and constitutional
to legislate for the protection of the cit
| iZen, or his defendant and to remedy any
defects which inhered in section 12 of
the old prohIbltorY law, by which his
rights were threatened.
Has the Legislature succeeded in doing
this? To answer this notice how II
works practically. The county attor-
ney presents his Information, verified
upon information and belief, along with
the sworn statement of the witnesses TO
! me, sitting as court. l examine the
inform alton to see that case is stated.
l next examine the testimony to see If
there is probable cause TO believe the de-
PENDANT is guilty. II there is l order the
clerk to issue warrant for his arrest.
do not let the clerk issue warrants in
| mIsdemeanors without an order from the
| court. OF course what can the defend
| ant complain? He is arrested upon a
warrant as the law directs, which is
based upon the probable cause, support
| ed by oath or affirmation. 1t cannot be
that such legislation Is unconstitutional.
We are, therefore. constrained to hold,
as we believe, said section is cOnstitu-
tional.