The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1895-10-08
THEY CALL A HALT
SUPREME COURT SITS DOWN on
PROHIBITINN TYRANNY.

Hereafter Prosecuting Officers Must En-
force the Prohibition Law Like An,
Other Criminal statute of the sam
Grade-Onicers Can't Arrest a Joints
without a Warrant Unless They Sc
the Crime Actually Committed-Th
Cases Went Up from Holy Topeka-Tb
Decision is Sensible.
Topeka, Kan, Oct THE supreme
court has announced a sweeping de-
cision in a case which has attracted
general attention in this state because
of the fact that it involved the consti-
tutionaity Of paragraph 62S of the gen.
eral statutes OF 1893. The decision OF
the court declares that the law is I'M
conditional so far as it attempts to au-
thorize an arrest without warrant for
misdemeanors not committed in view
of the officer and merely upon suspi-
cion.
The case which resulted in the test
of the law was that in which Joe KEEL
lam by his attorneys, David Overmyer
and Eugene Hagan, askedifor release
from the custody Of Chief Wllkerson
OH a writ of habeas corpus.
By the decision of the court Kellam
won his case and will be released. This
case was of particular interest in To-
peka OH account of the questions in
volved bearing directly upon the fam
Gus Topeka club case. AT the time the
officers entered the Topeka club house
and made arrestE and confiscated pri-
A 10 ms rlfS ar
the point of constitutional law which
was. the basis for the appeal in the
Kellam case. The decision of the KEEL
lam case shows that the arrest and raid
on the Topeka club was without war
rant Of law and in reality illegal.
The decision is thought by some to
have a bearing upon the case OF Po-
liceman Gaines who went 20 North
Topeka to arrest Kruger without
warrant. During the effort made by
the officer to arrest Kruger the latter
was killed. There are many cases in
the courts of this state which are based
upon the same legal propositions and
the supreme court decision will attract
unusual attention and affect many
suits, particularly those bearing upon
the many cases where arrests were
made on suspicion.
The opinion of the court was deliver
ed by Justice Johnston as follows:
On August 3, 1895, Joseph S. Kellam
was arrested by John NJ. Wilkerson,
chief of police of the city Of Topeka,
upon a charge of selling intoxicating
liquors in Topeka contrary to the city
ordinances and to the laws Of the state.
No written complaint was ever filed,
nor was there any warrant issued au-
thoriZing the arrest, but persons whom
the chief of police deemed to be re-
liable, had informed him that Kellam
was engaged in the unlawful sale of
liquors. The chief of police had no
personal knowledge that an offense had
been committed, but upon information
so received he alleged that he had rea-
sonable suspicion that an offense had
been committed, and therefore he ar
rested Kellam and committed him to
Jail. Kellam thereupon instituted this
proceeding, alleging that an arrest
without a warrant or other process, up
on the mere suspicion of an officer that
a misdemeanor had been committed is
illegal.
LAS an authority and a justification
for the arrest, the respondent calls our
attention TO the following statute, con-
ferring authority upon police officers of
cities of the first class:
The city marshal or any policemtn
or order an arrest upon view of an Of
Tense being committed, or upon reason
abe suspicion that an offense has been
committed with or without process, for
any offenSe against the laws of the
state or of the ordinances of the city,
and to bring the offender for trial be-
fore the proper officer of the city: Pro-
vided, that any person arrested for any
offenSe without process shall be en-
titled, on demand before trial, to have
filed a complaint on oath in writing:
and such person shall not at that time
be tried for any other offense than for
that for which he was arrested and for
which the complaint shall be fled
General Statutes 1889. paragraph 623.
In pursuance of this statutory pro-
vision the city has enacted an ordin-
ance which provides that policemen
may arrest with or without a warrant
all persons found in the act of viloat-
ing a law or ordinance or in any man
ner disturbing the peace and good or
der of the city or any OF its inhabitants.
j. also authorizes them TO arrest all
persons found under suspicious circum-
who can not give a good ac-
count OF themselves.
The statute quoted certainly pur-
ports TO give police officers power to
make arrests without warrants or 9th
er process upon mere suspicion that
have been committed. 1
But can such athority be constitution 1
ally given? We think not. The liber- I
ties of the people do not rest upon 50
and insecure a basis as the 7
surmise or conjecture of an officer that 4
some petty offense has been committed. I
In section 10 OF the bill of rights il is I
ordained that The right or the people 4
10 be secure in their persons and prop /
erty against unreasonable searches and !
seizures shall be inviolate'
This provision guarantees protec-
ton against unreasonable arrests. and
when 1t was placed in the constitution.
ana IN fact ever since that time. an ar /
rest Tor minor offense without war
rant and not in the view of the officer
was deemed TO be unreasonable and un-
lawful Under the common law arrests
without warrants We're not permitted.
except Tor onenseS committed in the
view or the officer. and in case of felony
actually committed the officer might
also arrest without process upon a rea-
sonabie suspicion. The liberty Of the
citizen was SO highly regarded. how
ever, that the officer arresting the sup
posed felon without warrant must have !
acted IN good faith and upon grounds
of probable suspicion that the person !
arrested was the actual feion. Felonies
we're excepted on account of the gray
~ or such offenses and because the (
public safety and the prompt apprehen
sion OF criminals charged with offenses
20 heinous seemed TO require that such
arrests should be made without war
ant
The powers of officers 10 make ar
'eSts have been extended 10 some ex-
ent by statutes. But il is generally
leld that officers can not be constitu-
ionaliy clothed with authority % ar
est with out warrant for minor Of
enses not committed in their nresaDra