Barbour County index. [volume] (Medicine Lodge, Kan.) 1880-current, 1885-05-22
lis decision rendered last week, he

therein named, and such other courts
inferior TO the supreme court as may be
provided by law. Undoubtedly the leg
islature has the constitutional right to
establish inferior courts and define and
limit their jurisdiction, powers and pro-
proceedings. Judicial powers may be
conferred without expressly naming the
tribunal court, and those powers may
be confined TO one or more subjects of
adjudication. They may be very limited
or very extensive in their scope, and
am not prepared to say that minister
ial officer may not be selected to perform
those judicial functions. The coroner of
a county has both ministerial and judi
cial duties to perform. County commits
sioners have to some extent both duties
imposed OH them and probably the same
is true of the sheriff of county. That
the duties imposed on the county attor-
ney under the eighth section of the act
in controversy are judicial powers, must
be admitted. He is to hear and deter
mine, compel the attendance of witness
esby subpoena and attachment and to
punish them for disObedience to his
writs. The power of courts acting with
in their jurisdiction to punish witnesses
70. contempt is a necessary and admit
ted power. It goes with thejudicial atr
butte, and without it court is power
less to enforce its orders or protect its
dignity. The serious objections urged to
the law under consideration is that the
county attorney is the public prosecu-
tor for the state. He is tile informer
against offenders, and on his Informa-
ton parties charged with crime are put
upon trial. The judicial power confer
red on him by this law are not to hear
and determine matters in which he
stands Indifferent between the parties,
but are given to aid and assist him in
the performance of his ministerial du-
ties, and have no otherpurpose; making
the judicial powers auxiliary. and
subordinate TO the ministerial duties,
and are given him as means by which
he can more successfully procure evil
dence to institute and carry on prosecu-
tions, and in this respect the powers
given him are very great, and In the
hands of an INSCRIPTIONS man, slim
ulated by luminosity or avarice could
preston.
On the mere unsworn statement of
any person, and without any case pend
ing before him, it is made his duty under
severe penalties to set this judicial ma
chinery 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 lAyestl-
CATION; fortified by a power to exact an
swers to any questions he sees proper to
ask, almost despotic in its severity.
The witness must answer the question,
or go to Jail for contempt. 1t may be
answered that such is the case in all
trials, but there is this wide difference:
In trials in open court on issues made up
between the parties, the relevancy and
competency of the question is submit
ted to the court, and argument of coun-
sci is heard; the rightsof the witness, as
well as the party, are dicussed, consid-
cred and decided.
And what makes the power given by
this law still more dangerous and OBJ
jectionable is that the law makes it TO
the interest of the judge county attor-
ncJl to fin evidence of an OffeEss COM
mitted. lie is offered reward to excite
his vigilence and cupidity and threaten
ed with severe punishment if he fails
or neglects to faithfully perform these
duties. In some respects these duties
are similar to those of grand jury and
court combined, The proceedings are
to ascertain if there is prob
able cause to charge the party with the
offence, but grand juror may be chal-
lenged on the ground that he is prose-
cutor or complainant or witness upon
a charge coming before him for investi-
CATION. Statutes 70, page 742, section
49, Nor can grand jury issue a
subpoena for witnesses decide the COM
potency of question asked, or pun
ish for contempt. These matters rest
with the court. (Sections So, SO, 81 and
ST. This provision of the act of March
Z, lSS5,is a strange combination of judi
cial and ministerial duties, aided with
rewards and penalties, and so far as /
have cen able to ascertain is an anoma-
ly, to all the judicial proceedings known
to the land. 1t attemps to unite the
judicial with the executive branch of civ
IL government, aud when the law-making
power and 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 despotit and not constitutional gov
eminent.
Are these objects sufficient to justi-
~ court in the conclusion that per-
son restricted of his liberty under these
proceedings is deprived of his liberty
without due process of law?" 1 am
compelled to answer in the affirmative.
L believe no precedent can be found for
the application aud use of judicial DOW
Ut IN the manner and for the purpose
contemplated by this act, and that it is
a dangerous innovation on the fixed
maxlms aud rules in the administration
Oh justice established tor the protection
OF private rights. In this conclusion 1
am also sustained by a recent decision
OF Judge Crozier of the First Judicial
district. 1t is therefore ordered that
the petitioner be discharged from Gus
tOdy.