The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1885-05-22
POWERS OF COUNTY ATTORNEYS

POWERS or COUNTY ATTORNEYS.
Judgs Croxiers Of L~svsnworth. Declares
1 Unconst,eusional the Provision of the New
4 Proaibitory Law Giving . County Attor.
nsy Power to Imprison for Contempt.
In the District Court at Leavehw0rth
Judge Crozier recently delivered q verv i'm
portant opinion in the case of Robert Bel
Ter, who had been summoned to appear be-
fore the County Attorney under the provis-
ions of the prohibitory law, and refus-
ing to answer certain questions was COM
mitted to Jail for contempt and subsequently
sued out q writ of habeas corpus before
Judge Crozier. The case was argued for
the prisoner by Hon. Thomas P. Fenlon
and Lucien Baker, and by County Attorney
Wheat and Attorney General Bradford for
the law. The following is full text OF
| the decision:
The petitioner complains that he 10 re-
| strained of his liberty without due process
of law If that be the fact he should be
| discharged,
The Prohibition act las it is commonly
called) of 1885 provides, among other things,
that If the County Attorney shall be notified
/
ton thereof, he shall issue his subpoena for
| such persons as he shall have reason to
believe have knowledge of such violation,
| requiring them to appear before him and tes-
| tify concerning the same. That such wit
nesses shall be sworn and their testimony
shall be reduced to writing and signed by
| them. That IL they refuse to appear. or tes-
tify, or sign their testimony. they may be
punished for contempt. II the testimony
| act, the testimony together with u complaint,
| or information. verified by the County At
| torney, shall be filed in some court of COM
petent Jurisdiction, whereupon warrant
| shall issue directing the arrest of the person
| charged, and the seizure of all Intoxicating
liquors found in his possession, and trial
| shall be had, etc.
The County Attorney is allowed twenty-five
| dollars upon each count upon which the ac-
| cused shall be convicted; and, IF he fail, or
| neglect, or refuse to faithfully perform his
| duty" he is not only to be deprived of his Of
| fee but be fined and imprisoned also. If he
! ''sball be unable, or shall neglect or refuse
| to enforce the provisions" of the act the At
| tOrney General is required to enforce it. and
| may appoint any person he may see fit, who,
| without oath or bond, shall perform the du-
| ties required of the County Attorney, have
the same powers and be entitled to the same
| compensation.
In pursuance of a notice and command
| from "the committee of twelve'-whoeyer
they may be.the County Attorney of this
nesscs among them the petitioner, to appear
before him and testify concerning violations
| of the Prohibition act. The petitioner did
appear, but when asked by the County At.
torney what he knew about the manufacture
and sale of beer by Brandon kermeyer, of
this city, refused to answer upon the alleged
ground that his answer would ten1 to Grim.
innte himself, and that the County Attorney
had no lawful power to require him to
swer Whereupon the County Attorney com.
mitted him to the County Jail for contempt
I'm refusing to answer; and this Is the impris-
onment from which he asks to be dis
charged.
Undeniably. the proceeding by and before
the County Attorney WAS not only in it's ma
ture, but in its very essence, judicial pro-
ceeding: and upon the argument was con.
coded to he such by the Attorney General.
An examination of witnesses under oath;
weighing their testimony to determine what
II proves: adjudging them TO be in contempt
for refusing to answer and committing them
to prison accordingly, are exercises of judi
cial power, beyond question. kilburn vs..
Thompson, ITO n. :.
The Constitution provides that 1.-THE judi.
cial power of this State shall be vested in q
Supreme Court, District Courts. Probate
Courts. Justices of the Peace, and such other
courts, inferior to the Supreme Court. ms
may he provided by law IL is contended
by counsel for the petitioner, as i under
stand them. that, under this clause. no part
of the judicial power of the State can he by
the Legislature deposited elsewhere than in
n court, and agree with them. But il does
not follow that the tribunal must be called
court. If it exercises judicial functions it
is, whatever it may be named. to that
extent IL court. For example: The Board of
County Commissioners, for some purposes
exercises judicial functions and from their
determination an appeal lies to the District
Court. The District Court may refer case
and appoint Il referee to try it whom the
code of civil procedure clothes with all the
power of the court for the purposes of the
trial. An assignee, under voluntary as
signment. is authorized to examine and al
low or reject claims against the assignor, and
an appeal may be taken from his determine
ton. A Notary Public, in taking dispositions
in n pending cause. is. in Il proper case, au-
thorZcd to imprison for contempt; and
other examples might be given. None of
these tribunals, or persons. are called courts
but to the extent of the judicial power con-
fcrrcd upon them; they are courts inferior
to the Supreme Court, within the meaning OF
the Constitution. Upon no other theory of
lature comforting judicial power be upheld.
and who, ut this day, will have the hardwood
to say il is not to be upheld! l do not care
to discuss the subject.
But it is u very different proposition to say
that the Legislature may confer judicial
powers upon the County Attorney, to be ex-
erted in criminal proceeding where he is
the prosecutor. Memo debet esse judcx In
propra sua causa-"nO man can be judge in
his own case" land certainly to be effective
the disqualification must extend to his loren.
sic representative Is maxim old as
law itself. The Constitution provides that
every person accused of crime shall be
entitled TO trial Dy an impartial Jury, nut
is silent rs to the qualifications of the Judge.
Is it then to be said that the officer who has
the sole control Of the prosecution shall be
the Judge at any stage of the proceeding!
Or is il not rather to be said that the trainers
of the Constitution consider 1t unnecessary
to formulate the proposition, conceded by
enlightened mankind everywhere that there
must be an impartial judiciary for the adm In
istration of justice! Who doubts or even
makes question that it is part of the
unwritten law of this Commonwealth
that any man when called to answer
in judicial trial has an absolute ami
before an impartial Judgel Where is the
man so void of oil sense of natural justice
as to say nayl
But the act does not simply name the
County Attorney as the examining magis-
trate. but his cupidity and his fears are ap
pealed to as well. He is promised, in add.
ton to his regular salary. 4 reward of twenty
five dollars for every instance in which ne
shall work out conviction, and IL he shall
fail to faithfully not only pursue dein-
quept after he shall be found, but to seek
him in the first place, he shall be deprived Of
his Office ana Otherwise y ignomnioHssy pun
the act the Attorney General Is to super |
cede him with somebody else who shall pre-
sumably be able to enforce it, Is 1t TO BE !
presumed that the County Attorney. or the
far above the ordinary level of COM |
mon humanity as not to be influenced |
by such powerful stimulants? What
would be thought Of statute that
should make the prosecuting officer the ex- |
amning magistrate in n case where an iudf |
vidual was suspected of murder or arson or |
other high crime! 1t would be greeted with |
q derisive and deprecatory scream far ex- |
ceeding that which went up In Massachusetts |
upon the enactment of the fugitive s1are |
law. appealed Gnsuccessfully TO the coun- |
sci for the State to point out or mention one |
instance in which such provisions N q stat |
ute L have been considering were |