The Abilene reflector. [volume] (Abilene, Kan.) 1883-1888, 1885-05-21
ANOTHER DECISION.
Judge Foster. of the Unitod States District
Court for Kansas, Decides Against the
ProhihitorE Law.


Judge Foster. of the Unitod States District
Court for Kansas, Decides Against the
Prohibitory Law.
TOPEKA, KIN, May 15.-judge c. G.
Foster, of the United States District Court,
yesterday rendered an opinion in the babeas
corpus case from AtchisOn County. Her
mann Zi5old 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 tine 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 in difference between the parties, but
are 10 give aid and assist him in 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-
tlonS, and in this respect the powers given
him are very great, and i'll 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 anv
case pending before him, il is made his
duty, under severe penalties, TO set this
judicial machinery in motion, with
no restriction as 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
20 any questions he sees proper to ask,
almost despo;ic in its severity. The wit
ness must answer the question or go TO jai!
for contempt. 1t may be answered that
such is the case in all trials; but there is
this wide difference. without it a court is
powerleSs to enforce its orders or protccr
its dignity. In a trial i'll open court OH
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
A
evidence of an OffenSe committed He is
offered reward to excite his vigilance and
cUpidity, and threatened with severe pun
ishment if he fails or neglects to faithfully
perform those duties In some respects
these duties are similar to those of grand
jury and court combined. The proceedings
are preliminary to ascertain if there is prob
able cause to charge tie party with the o.
fense, but 4 grand juror may be challenged
on the ground that he is prosecutor or COM
plainant, or witness upon charge com
ing before him for investigation. (Statutes
40, page 142 section ~ Nor can a grand
juIy issue i subpoena for witnesses or de-
eide the competency of question asked, or
punish for contempt. These matters rest
with the court sectiOnS So. 81, 81 and SS.l
This provision of the act of March = 1885, |
is strange combination of judicial and |
ministerial duties aided with rewards and |
penalties, and so far as | have been able to !
is an anomaly TO all the judicial /
known to the land. 1t 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 \ CONSTITUTIONAL
Government. Are these objections suffi-
eient to Justify court in the conclusion
that person restricted of his liberty under
these proceedings is deprived of his liberty
without due process of law? | am com
lelled to answer in the affirmative. | be-
feve no precedent can be found for the ap-
pl.cation and use of judicial power in the
manner and for the purpose contemplated
)y this act, and that it is Il dangerous inn0-
JatiOn on the fixed maXims and rules in the
of justice established for the
of private rights. In this con-
:lusiOn l am also sustained by a recent de-
.isiOn of Judge CroZier of the First Judicial
district. 1t is therefore ordered that the pc
.itioner DO discharged from custody"