The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1885-05-21
HOSTERS DECISION.

The following is an abridgment of the
decision of G. G. Foster of the United
States district court IN the Atchlson
habeas corpus case:
Hermann Seiboid had been sent to
jail by the county attorney for refusing
to answer questions put 10 HIM concern
ing an alleged violation of the prehibi-
tory law. Seibold claimed to be re-
strained of his liberty against tho pro-
visions of the fourteenth amendments of
the constitution aud asked to be released.
The court, 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 Al officer" Gays: The serious OBJ
jectiOns urged to the law under consid-
Grafton is that the county attorney is the
public prosecutor for the state. He is
the informer against offenders, ana 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 indifferent between the
parties, but are given to AID and assist
him IN the performance of his ministe-
rial duties, and have no other purpose of
making the judicial powers auxiliary
ties, and are given him as q means by
which he can more successfully procure
evidence to institute and carry on 3 pros
ecution. And in this respect the powers
given him are very great, and in the
hands of an INSCRIPTIONS man, stImu.
lated by luminosity or avarIce, could be
used as an instrument of sore oppres-
sion. On the mere unsworn statement
OF any person, and without any CAGE
pending before him, it is made his duty
under severe penalties to set the judicial
machinery in motion with no restrictions
as TO whom he shall summon before him
to testify, and no Limitation but his own
GOOD will as to the scope of his in.
| Vestlgation. Fortified by q power
to exact answers tn any questions he
sees proper to ask, aim ct despotic in its
| severity, the witness must answer the
| question or go to jail for contempt. II
may be answered that such is the case
IN trials. But there is this wide differ
ence: Without it court 10 poWerIess
to enforce Its orders or protect its digni-
| ty. In trials of open court on issues
made up between the parties the reYel-
ancY and competency of the question is
submitted to the court and the argu-
ment of counsel is heard, the rights OF
the Wltnes as we'll as the party are dis
cussed, considered and decided. And
what makes the power given by this
law still more dangerous and objection
| able, is that the law makes it the interest
of the judge County attorney TO find
evidence of an offense committed. He
is offered reward TO excite his vigI.
lance aud cupiditY and threatened with
severe punishment if he fails or neglects
to faithfully perform these duties. In
some respects these duties are similar to
these Of q grand jury and court com
bined. The proceedings are prelimin.
airy to ascertain if there is probable
cause to charge the party with the
offense. But grand juror msy be chal
lengeo on the ground that he is prose
cutor or complainant, or 9 witness upon
a charge coming before him for inVeati-
cation. Statutes 70, page 74S, sec. 80,
Or can grand jury issue q s0bpens
for witness or decide to competency of q
question asked, or punish for contempt
These matters rest with the court
(Sectien So, SO, 81 and SO. This pro-
vision Of the act of March 2, 1885, is 8
strange combination of judicial and
ministerial duties, and with reward and
penalties, and, so far as have been able
to ascertain, is an anomaly to all the
judicial proceeding known to the land
It attempts to unite the judicial with
the executive branch of civil govern
ment, and when the law making power
and the power which declares aud 6p-
plies, as well as that which executes and
administers the laws, are ruled and
vested in one person or body, 1t becomes
| a despotlc and not constitutional gov.
eminent. Are these objections sufficient
to Justify court in the conclusion that
person restrained of his liberty under
these proceedings is deprived of his lib
erty without "due process OF law2" am
compelled to answer in the affirmative
I believe no precedent can be found for
the application and use of Judicial
power in the manner and for the pur-
pose contemplated by this act, and that
it is dangerous innovation on the fixed
maxium and rules in the administration
of justice established for the protection
of private rights. In this conclusion l
am also sustained by q recent decision
of Judge Crozier of the First judicial
district Ii is therefore ordered that the
petitioner be discharged from custody