The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1885-05-14
CARPLNG CRozLER.

witness stand:
The petitioner complained that he is
OF his liberty without due pro- |
cess of law; il that be the fact he should |
be discharged. The prohibition act, as /
It Is commonly called, of 1885, provides, |
amopS other things, that If the county /
attorney shall be notified by an officer or |
other person Of any violation 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 testify |
concerning the same; that such wit
nesses shall be sworn and their testimony
shall be reduced to writing and signed |
by them; that if they refuse to appear or
testify, or sign their testimony, they
may be punished for contempt. If the
testimony shall diaclose the fact of
violation of the act, the testim 0ny to-
gether with q complaint or information
verified by the county attorney, shall be
filed in some court of competent juris-
diction, Whereupon q warrant shall be
issued directing the arrest of the person
charged and the seizure of all intoxicat-
ing liquors found IN his possession, and
q trial shall be had, etc.
The county attorney Is allowed $25
upon each count upon which the accused
o4bll % CSANICbCos 1L4 II AC A2A4 VI
lect or refuse to perform his duty he is
not ocly TO be deprived OF his office, but
fined and imprisoned also; if he shall be
unable or neglect or refuse to enforce the
provisions of the act the attorney gen.
eral is required TO enforce IL and may
appoint any person he may see fit with
out oath or bond to perform the duties
required of the county attorney, who
shall have the same power and be en-
titled to the same compensation. In
pursuance Of q notice and command from
the committee of twelve, whoever they
may be, the county attorney of this
county issued his subpoena for several
witnesses, among them the petitioner,
to appear before him and testify concern
ing violations OF the prOhIbitory act.
The petitioner did appear, bat when
asked by the county attorney what he
knew about the manufacture and sale OF
beer by Brandon g Kirmeyer of this
city, he refused to answer, upon the al
legged ground that his answer would tend
| to criminate himself, and that the coun-
ty attorney had NO lawful power to re-
CURE him to answer. Whereupon the
county attorney committed him to jail
for contempt in refusing to answer; and
this is the Imprisonment from which he
asks 70 be discharged. Undeniably the
4 DLOCCCOlnk W huO OCAOAC buC NOuHly
attorney, was not only in its nature but
in its very essence judicial proceeding,
and upon the argument it was conceded
to be such by the Attorney General. An
| examination of witnesses under oath,
weighing their testimony to determine
| what il proves, adjudgIng them to be IN
contempt for refusing TO answer and
committing them to prison accordingly,
are exercises OF judicial power beyond
| question. Kilburn VS.. Thompson, 10
o. 8. The constitution provides that the
| judicial power of this State shall be
vested In q Supreme Court, district
courts, probate courts, justices OF the
| peace, and such other courts interior TO
the Supreme Court as may be provided
by law. 1t is contended by counsel for
the petitioner, as l understand them,
| that under this clause no part of the
| judicial power of the State can be
by the Legislature deposited elsewhere
than In q court and I agree with
them, but 1t does not follow that the tri-
bunal must be called a court. If it ex-
ercises judicial functions it is, whatever
it may be named, to that extent court
For example; The board of county
commissioners for some purposes exer-
else Judicial functions, and from their
i determination an appeal lies to the dis
L
q case and appoint a referee to try it,
whom the code of civil procedure
clothes with all the power Of the court
for the purpose of the trial. An assignee
under q voluntary assignment is au-
thorized to examine and allow or reject
claims against the assignor, and an ap-
peal NAV be taken from hi5 determine
ton. A notary public, in taking de.
positions in pending cause is, IN pro-
per case, authorized to imprison for con
tempt, and other examples may be given.
None of these tribunals or persons are
called courts, but to the extent of the
judicial power conferred upon them
they are courts Inferior to the supreme
court within the meaning OF the consti-
tuition. Upon no other term Of
the constitution can the &C
ton of the legislature comforting
Judicial power upon them be upheld
and who a. this day will have the hsrdi.
hood to say it is not upheld? 1 do moi
care TO discuss the subject. But it is {
very different proposition to say that the
legislature may confer judicial powers
upon the county attorney to be exercised
in a criminal proceeding where he is the
prosecutor, memo debet eSse jIdeI in pro
priG suG cGuSG. mo man can be q
Judge in his own case" and certainly Il
| DO effective the disqualification mus
extend TO his forensic representative, i:
& maxim as old as the law itself. Tit
constitution provides that every person
accused of crime shall be entitled to &
, trial by an impartial jury, but ls silent
IS to the qualifications of the judge. L
it then to be SAID that the officer who
has the sole control of the prosecution
shall be the judge at any stage of thu
proceeding, or is 1t not rather 10 be SAID
that the trainers of the constitution
consider it unnecessary to formulate tn
proposition conceded by enlightened
mankind everywhere that there must b
, an impartial judiciary for tn
, administration of Justice? VIII
: doubts or even makes IL q question thu
it is q part of the unwritten law of TIL
commonwealth that any man when call
ed to answer in a judicial tribunal hs
, al absolute and unqualified right to de
msnd that it shall be before an impal
tial Judge? Where is the man so vol
, of all sense OF natural justice to say nay
But the act does not simply name tn
county attorney as the examining mag
Istrate, but his cupidltY and his tears ar
p appealed to IS we'll. He Is promised i
addition to his regular salary a rewar
of $25 tor every instance in which b
shall work cut q conviction, and if b
2 shall work out a conviction, and if b
shall fail to faithfully not only pursue
delinquent after he shall be found, bT
to seek him in the first place, he shall
deprived of his Office and otherwis
T ANONYMOUSLY punished; and besides
q If he be unable to enforce the act th
= attorney general Is to supeTcede hiI
with somebody else who shall, presume
I ably, be able by means tn enforce il.
I il TO be presumed that the county attol
] the IN ha annninfG
will rise so far above the ordinary lev
> OF common humanity as Dot to be inf
enced by such powerful stimulantE
: What would be thought of q statute TIL
9 should make the prosecuting officer Il
9 examining magistrate in q case where q
8 individual was suspected of murde
arson OF other high crime? It would
greeted with derisiYe and depreciatoI
}, scream far exceeding that which went L
I in Massachusetts, upon the enactment
4. the fugitive slave law. I appealed u
successfully to the counsel for the sta
to point out or mention one lnstsn
. in which such . provision in
= statute as have been consideriE
was sustained by any court
!, any country. believe none such CO
be found and have no ambition to |
J. the first to inSugurate such an innoy
n ton. The highest courts have found
impossible to formulate in advance VIII
would be "dUe process OF law" J
every case the question might arise, b
3 they do agree that a statute, the prov
>, sions Of which would be in violation
o the written or unwritten fundament
"a law of the land, would not be due Or
cess of Law, however gigantic the eV
+ sought to be remedied might be. In q
lie opinion the powers attempted TO be CO
10 ferred upon the county attorney and {
A attorney general and his appointees q
not due process of law. Other Que
tions were discussed in the argume
re but the conclusion at which have
,e rived makes il unnecessary now to &C
slider them. II can hardly be necesss
for me 70 state that in what have 81
about the attorney general and cour
ae attorney have no personal reference