The Abilene reflector. [volume] (Abilene, Kan.) 1883-1888, 1885-05-21
POWERS OF COUNTY ATTORNEYS


| Judge Crozier recently delivered very i'm
| pOrtant opinion in the case of Robert Bel
! Ter, who had been summoned 10 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 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 fol
the law. The following is a full text OF
the decision:
The petitioner complains that he is 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
caled) of 1sS5 provides, among other things,
that if the County Attorney shall be notified
by an officer, or other person, OF any viola
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
uesses shall be sworn and their testimony
shall be reduced TO writing and signed by
them. That If they refuse 10 appear, or tes-
tfy. or sign their testimony, they may be
punished for contempt Ii the testimony
shall disclose the fact of the violation of the
act, the testimony together with Il complaint,
or information. verified by the County At
tOrney, shall be filed in some court of COM
petent jurisdiction, whereupOn "a 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 sc-
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
shall 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, VINO,
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"-whOever
they may be-the County Attorney of this
county issued his subpoena for several wit
neSseS, 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 Il Kermeyer. of
this city, refused to answer upon the alleged
ground that his answer would ten1 to crlm-
mate himself, and that the County Attorney
had no lawful power to require him 10 an
swer. Whereupon the County Attorney com
mitted him TO the County Jail for contempt
in refusing TO answer; ana this Is the impris
onmcnt from which he asks to be dis
charged.
Undeniably. the proceeding by and before
the County Attorney was not only in its na-
ture, but in its very essence, judicial pro-
ceeding; and upon the argument was con-
ceded to be such by the Attorney General.
II m f. nn6PT
weighing their testimony to determine what
il proves; adjudging them 10 be in contempt
for refusing 10 answer and committing them
to prison accordingly, are exercises of judi
cial power, beyond question. hilburn vs..
Thompson, ITO y. =
The Constitution provides that "The judi
cial power of this State shall be vested in
Supreme Court, District Courts, Probate
Courts, Justices OF the Peace and such other
courts, inferior to the supreme Court, as
may be provided by law. II Is cOntended
by counsel for the petitioner uS | under
stand them. that, under this clause. 10 part
OF the judicial power of the State can lie by
the Legislature deposited elsewhere than in
a court, and agree with them. But it does
not follow that the tribunal must be called
court If it exercises judicial functions il
iS, whatever il 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 All appeal lies to the District |
Court. The District Court may refer case /
code of civil procedure clothes with all the |
power of the court for the purposes of the !
trial An assignee. under voluntary as I
Signmcnt, is authorized TO examine and al !
low orreiect cldims against the assgnOr and /
an appeal may be taken from his determine |
tiOn. 4 Notary Public, in taking depositions |
i'll pending cause, -. in Il proper case, au- I
thOriZed to imprlSOn for contempt; and !
other examples might he given. None Of /
these tribunals. orperSOnS. 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 COnSt tuition. Upon no other theory of
the Constitution can the action OF the LegiS-
lature comforting judicial power be upheld,
and who, vt this day, will have the hardihOod
to say il is not to be upheld? | do not caro-
to discuss the subject.
But il is very different proposition 10 say
that the Legislature may confer judicial
powers upon the County Attorney. to be OK
erted i'll criminal proceeding " here he is
the prosecutor. Memo dcbet cSSe judeN in
prOpria Sua cauSa-''nO man can be q Judge in
mas own case (nnd certainly 10 be enecIive
the disqualification must extend to HIS fcren-
SIC representative Is maxim as CID as
law itself. The Constitution provides that |
every person accused of crime shall be
entitled to a trial by an impartial jury, but
is silent as 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 it unnecessary
to formulate the proposition, conceded by
mankind everywhere that there
must be an impartial judiciary for the adm in
istration of Justice! Who doubts or even
makes question that il is part Of the
unwritten law OF this Commonwealth
that any man when called to answer
in judicial trial has an Sbsolute an1
unqualified right to demand that ii shall bs
before an impartial JudgeI Where is tht
man so void of all sense OF natural Justice
aS TO say nay!
But tho act does not simply name the
County Attorney the examining magis
trate, but his cupidty and his fears are aP
pealed to as well. He is promised, i'll addi-
ton to his regular salary, Il reward OF twenty
five dollars for every instance in which ne
shall work out a conviction, and II he shall
1uent after he shall be found, but to seek
him in the first place, he shall be deprived Of
his office and otherwise i2nOmniously pun
shed, and tcsides, if he be unable to enforce
the act the Attorney General is to snFSr-
.ede him with somebody else who shall pre-
,umably be able to enforce it. Is IL 10 be
person so to be appointed. Will rise 20
Tar above the ordinary level of com
non humanity as not TO be influenced
Dy such powerful stimulants: What
should make the prosecuting officer the eX-
tmining magistrate in a case where an iuhr
-idual was suspected of murder or arson or
)ther high crime! 1t would he greeted with |
derisivc and deprecatory scream far eX-
,eeding that which went up in hasSachuseLts
Ipon the enactment OF the fugitive slave
aw. / appealed 9nSuccessfully to the c0Tn-
;ei for the State to point out or mention one
Instance in which such provisions IN q stat ,
lite as | have been considering were sus
aimed by any court in any country. I be-
ieve none such can be found and have no
ambition 10 be the first to inaugurRtc such
IN innovation
The highest courts have found il impossi- !
Die to formulate in advance what would bc
due process of law IN every case that
NJ ight arise. but they 90 agree that statute.
he provisions of which would be N violation ,
# the written or unwrittcn fundamental i
aw of the land, would not be due process of {
aw" however gigantic the evil sought 10 be ,
might be.