Wichita eagle. [volume] (Wichita, Kan.) 1883-1888, 1885-05-15
Iudee crozler.s Decision


quiesce in the decision: "The prisoner com
plains that he is restrained of his iibertl
without due process of law. If that be th,
fact he should be discharged.
THE PROHIBITION ACT,
as it is commonly called, of 1885, provides
among other things, that if the county at
torney shall be notified by an officer o.
other person Of any violation, he shall issu
subpoenas for such persons as he shall hav
reason to believe have knowledge of sucl
violation, requiring them to appear befor
him
AND TESTIFY CONCERNING
the same; that such witnesses shall b
sworn, and their testimony shall be reduced
to writing and signed by them; that il the,
refuse to appear, or testify or sign their ties
timony, they may be punished for contempt
If the testimony shall disclose the fact of a
VIOLATION OF THE ACT
the testimony, together with a complaint o.
information. verified by the county attorney
shall be filed in some court of competen
jurisdiction, whereupon warrant shall b.
issued directing the arrest of the person
charged and the seizure of all intoxicating
liquors found in his possession, and tria
shall be had, etc. The county attorney is al
lowed SOS upon each count upon which tn,
accused snail be convicted and if he
FAIL OR NEGLECT
to perform his duty he is not only to be de
prived of his Office but fined and i'm
prisoned; also, if he shall be unable or shall
neglect or refuse to enforce the provision Of
the act the officer required to force it may
appoint any person he NAV see fit, who
WITHOUT OATH OR BOND
shall perform the duties required of the
county attorney, have the same power and
be entitled to the same compensation. In
pursuance of q motion and command of &
committee Of twelve. whoever they may be
the county attorney of this comfy issued
his subpoena for several witnesses, among
them the petitioner, to appear before hin
and testify concerning
VIOLATION OF LAW.
The petitioner did appear but when asked BY
the county attorney what he knew about tbs
manufacture and sale of beer by Brandon
& Kermeyer, of this city,
REFUSED TO ANSWER
upon the alleged ground that his answer
would tend to eliminate himself and tina
the county attorney had no lawful power t,
make him anwer, whereupon the county at
.orney committed him to the county Jail TO
contempt
IN REFUSING TO ANSWER,
and this is the Imprisonment from which h
asked to be discharged. Undeniably thi
proceeding by and before the county attor
ney was not only in its nature but in its yer,
essence judicial proceeding and upon tn
argument it was conceded to be such by tn
attorney general. An examination of wit
nesses under oath, weighing their testimony
to determine what it proved adjudginl
them
TO BE IN CONTEMPT
for refusing TO answer and committing then
to prison are exercises of judicial power be
yond question Kilburn VS. Thompson, III
US. The constitution provides that tn
judicial power of this state shall be vested il
a supreme court, district courts, probat
courts, justices of the peace and such othe
conrts inferior to the supreme court as ma,
be provided by law. 1t is contended b!
counsel for the petitioner, as ] understand
them, that under this clause no part of tn
JUDICIAL POWER
of the state can be, by the legislature, de
agree with them, but it does not follow tina
the tribunal must be called a court if it use
judicial functions. 1t is, whatever ii ma,
be named,
TO THAT EXTENT a COURT.
For example, the board of county commits
sioners for some purposes exercise judlcia
functions and from their determination al
appeal NAV be had to the district court, th'
district court may refor a case and appoin
referee to try it whom the code of civil
proceedings clothes with all the
POWER OF THE COURT
for the purposes of the trial. An assigne,
under a voluntary assignment is authorized
to examine and allow or reject claim
taken from his determination. A notary
public in taking dispositions in pending
cause is in proper cause
AUTHORIZED To D,PRIsoS
for contempt, and other examples might b,
given. None of these tribunals or persons
are called courts, but to the extent of til,
judicial power conferred upon them
THEY ARE COURTS
inferior to the supreme court within tn,
theory OF the constitution can the action o
the legislature comforting the judicial powe1
upon them be upheld, and who at this day
will have the hardhood to say it is
NOT TO BE UPHELD.
1 do not care to discuss the subject, but it i
very different proposition to say that III,
legislature may confer judicial powers upor
the county attorney to be exerted on {
criminal proceeding where he is the prose
cutor, memo debet esse judex in spropria SUI
causa. No man can be Judge in his owl
case and certainly to be effective the dis
qualification must extend to his
FORENSIC REPRESENTATIVE
is a maxim as old as the law itself, The
constitution provides that every person ae'
cussed of crime shall be entitled TO a trial by
an
IMPARTIAL JURY,
but is silent as to the qualification 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 pro
ceedings, or is it not rather to be said that
the trainers of the constitution consider II
necessary to formulate the proposition con
ceded by enlightened man everywhere that
there must be an
IMPARTIAL JUDICIARY
for the administration of justice. Who
doubts or even makes II question that 1t Is
part OF the unwrit:en law of this common
wealth that any man when called to answer
in judicial tribunal has an absolute and
unqualified right to demand that it shall be
before an
IMPARTIAL JUDGE?
Where is the man so void CT all sense OF
natural justice as to say nay? But the act
does not simply name the county attorney
as the examining magistrate, but his cupidi-
ty and his fears are appealed TO as well. lie
is promised in addition to his regular salary
a reward of S25 for every instance in which
he shall
WORK OUT A CONVICTION,
and if he shall fail to faithfully not only
pursue delinquent after he shall be found,
but to seek him in the first place he shall be
deprived of his Office and otherwise
IGNoMISIoUsLY PUNISHED,
and besides if he be unable to enforce the
act the Encouragement is to supercede him
with somebody else who shall presumably
be able by some means
To ENFORCE 1T.
is it to be presumed that the county attor-
ney, or the person so to be appointed, will
rise so far above the ordinary level of com
mon humanity as not to be influenced by
such powerful stimulants? What would be
thought of a statute that should make the
prosecuting officer the examining magistrate
in case where an individual was suspected
of murder, or arson, or other high crime
it would be greeted with
DECISIVE AND pEPRECAToKY SCREAM
far exceeding thst which went up in Massa-
chusetts upon the enactment of the fugitive
slave law. Ihppealed unsuceessfully to the
counsel for the state to point out or mention
one instance in which such provision in a
statute as have been considering was sus-
tanned by any court in any country. j be-
Iieve
NONE SUCH CAN BE FOUND,
and have no ambition to be the first to in
augurate such an Innovation. The highest
court has found it impossible to formulate
in advance what would be the due process
Of law in every case that might arise, but
they do agree that statute the provisions of
which would be in violation of the written
or unwritten
FUNDAMENTAL LAW