The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1895-10-20
REED HAS DECIDED
00NSTITUTI0NAlITY OF 4 SECTION
OF LAW PASSED UPON.

Judge Reed, "to Give Testimony Tend
ing to Criminate the Witness, Notwith
ing the Statutes Declare He should
Required to Give the Testimony"-C. N
Question and the Issue Is Raised-Th
Tiger is Completely Disarmed.
Judge Reed rendered an importan
decision yesterday in the Schnitzler in
junction case. The decision rendered
completely knocked the wind out of Tt
ger BilPs sail and the ruinous Graf
he has been manning for some time, II
his efforts to make the taxpayers sick
was fairly lifted out of the water ant
came near sinking.
| c. VI. Jones was called as a witness
in the case with the intention on ths
part Of Tiger Bill of showing thai
Schnitzler had conducted joint in the
building stated in the injunction filed
and that Mr.. Jones, as chairman of the
| board Of police commissioners knew
| that the building was so being used
contrary TO law, and that he, Zones
made regular monthly reports of tn:
as an officer of the law, when as such
officer he Oones) had sworn to support
| the constitution of the state
Mr.. Jones refused TO answer the
| question ON the grounds that his evil
dence might have a tendency TO Grim
| mate himself, he being member of the
| club, as we'll as an officer of the law
within the scope of the time alleged by
the complaint when the nuisance was
| being carried on contrary TO the pro-
hibitory law.
Campbell insisted that the judge in
form the witness that by the provision
of section Al of the 149th chapter of the
| laws of Kansas, fer 1885, the witness
would be compelled to answer the ques-
ton, although the evidence could not
be used against him.
The provision Of the law as cited
reads:"No person shall be excused from
: testifying touching any offense COM
mitted by another against any Of the
provisions of this act-the prohibition
iaw-by reason of his testimony tend
ing to criminate himself Che wftness)
but the testimony given by such person
shall in no case be used against him.
The attorneys for the defense ar
gued that the witness should not be
compelled to answer, as the provision
conveyed and esta blished by the stat
ute cited were contrary to the consti-
tuition of the state OF Kansas, and hence
null and void.
The attorneys argued the case pro
and con and Judge Reed rendered the
following decision:
II want to say by way of preface
that the constitutionality of the prohi-
bition law has been attacked by coun-
sci for the defendant during the past
two or three weeks during the trial of
these cases, and SO far l have decided
in every case that the propositions
raised attacking it's constitutionality
were untenable. Whatever may be the
sentiment of the community with ref
erence TO the policy of the law, that is
a matter about which the court has
nothing TO do. Whenever courts are
Influenced by public sentiment they
have then lost their power and useful
ness. On the other hand, whatever
may be the virtue of law, if it appears
to be unconstitutional, it is the duty of
the court to say so.
In declaring that part of section II
unconstitutional which reads as fol-
lows: No person shall be excused from
teStifying touching any offenSe COM
mitted by another under any of the pro-
visions of this act by reason of his tes-
timony tending to criminate himself
(the WitneSS); but the testimony given
by such person shall in no case be used
against him.. / do SO unhesitatingly
and am willing to go upon record as
saying that il is unconstitutional. The
constitution of the state OF Kansas in
Section 10, Bill of Righs. provides in re-
lation TO criminal cases that no person
shall be witness against himself, or
be twice put in jeopardy for the same
offense.
Much has been said about the Coun-
Gilman case reported in the l42d u. S.
Without stopping at this time to dis
cuss this case, l am willing to go upon
record as saying that the constitution
al provision that no person can be re-
quired to be witness against himself
cannot be taken away by any legisla-
tive act. The witness has a right TO
stand upon his constitutional privilege.
The constitution is made a barrier
against arbitrary legislation, against
fanaticiSm on the one side and fanati-
cism on the other. i think the courts
are going even a step too far when
they say that this constitutional pro-
vision can be abridged by providing
there shall be no prosecution whatever.
What they ought to have said was that
the witness should stand on his con-
privilege. But they have
said that he cannot be punished in any
case Whatsoever where he is granted
full immunity from prosecution. See
142 U. 5 and 107 Mass. 173.
81 think the language of the statute
in this state fails to grant full immu-
nifty For that reason. along with the
other reasons cited, l hold the law un-