The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-11-04
STOPS REDDEN..
Judge HaZen Says He Can Send
No One to Jail.
Hands Down Decision in Waldo
Calvin Case.
DOES NOT TOUCH. LAW.
Fails to Pass on the Inquisition
Feature.
Action Was the OutgrOwth of
Liquor Prosecutions.


| this morning decided that Assistant
Attorney General Redden has not the
right under the county attorney ''in
QUESTION law to punish those who re-
fuse to obey his summons to testify
before him in liquor cases. He did not
go further into the case by deciding the
legality of the inquisition law.
The case was brought in the form
of habeas corpus in the name of
Waldo Calvin. Calvin was subpoenaed
to testify before Judge Redden in re-
gard to illegal liquor sales. Before the
hour set for Calvin to testify his at
torneys brought a writ of prohibition to
prevent Judge Redden from compelling
Calvin to testify. Judge Hazen held
that a writ of prohibition could not be
brought in such case. Calvin was
then arraigned before Justice T. l.
Wright and fined SO for refusing to
obey Judge Redden's subpoena At
tOrneys Clemens and Hungate brought
habeaS corpus case to secure CALVIN
release from serving out the fine, on
the ground that Judge Redden had not
the power to punish for misdemeanor
those who refused to comply with his
summons.
The decision of the court was as fol-
lows:
The petitioner was charged, tried and
convicted before a justice of the peace
for failing to obey a subpoena of the
assistant attorney general appointed
for this county, and has petitioned this
court to be discharged from imprison-
ment upon the ground that the failure
to obey such subpoena does not con-
stitute offense
1t is contended on behalf of the petit
toner that the failure to obey a sub
poena issued by the assistant attorney
general under section 1 of chapter 233
of the session laws of 1901 does not con-
or "a IN OI a T0fa
233 was not enacted in accordance with
section Is of article of the constitu-
ton, which provides that no law shall
be amended unless the new act con-
tain the entire section or sections
amended and the section or sections
amended shall be repealed. This act
shows that it was intended to amend
section 40 of chapter 101 of the general
statutes of 1887.
Judge Webb, in his compilation of the
statutes of 1897, takes section of
chapter 149 of the session laws of 1885
and subdivideS 1T, making two sections
thereof and numbering them 49 and so
The specific constitutional objection
urged against chapter 233, laws of 1901,
is that Judge Webb had no authority
to subdivide section of said chapter
49, laws of 1885, and that when the leg
islature attempted to amend section 40
of chapter 1O1 of Webbs statutes it was
an attempt to amend part of original
section 8, chapter 149, of the laws of
1885, and that under section 16 of article
of the constitution the legislature was
not authorized to amend a part of a
section.
1t is further contended that if the
constitutional objection is not well
taken and If said chapter 233 is valid,
that under this statute a person can
only be guilty of an offense by falling
to obey the subpoena of the county at
torney-
If this last contention is well taken,
then it is unnecessary for the court to
r. sfr-%s ra,1f ~ <1f fho
law in question. The rule is that where
a question at issue can be decided with
out passing upon the conStltut1onal1ty
of a statute the trial courts will usual
ly refrain from passing upon the con-
stitutional question raised.
By section 8, chapter 149, laws of
1885, the legislature authorized county
attorneys, in certain cases, to subpoena
witnesses before them for examination,
and gave the county attorneys author
ity to punish for contempt a witness
for disobeying the subpoena. In the
case of In re SIMS 54 Kan. 1, the su-
preme court held that insofar as this
statute authorized county attorneys to
punish for contempt for disobedience to
subpoenaes it was unconstitutional.
Section IL, chapter 149, laws of 1885.
gives the same authority and imposes
the same duties upon the assistant at
torney general as is conferred upon the
county attorney by section of the
same chapter.
By section 1 of chapter 233, laws of
1901 in the enforcement of the prOhibi-
tory liquor law, the county attorney IS
authorized to subpoena witnesses before
him. and the section further provides
that any witness disobeying a subpoena
so issued shall be guilty of a miSde-
meanor and punished accordingly
There is no express authority given in
this statute to the assistant attorney
general to subpoena witnesses, and If
he has any such authority it must be
by virtue of section II, chapter 149. of
the laws of 1885. 1t is not necessary
in this case to determine whether the
assistant attorney general has authority
to subpoena witnesses before him or
not but the important question is
whether section l of chapter 233, ses-
sion laws of 1901, makes it a criminal
offense for a witness to refuse to Nobey
general This statute does not, in
terms, make the failure of a witness
to obey the subpoena of the assistant
attorney general criminal offenSe, but
subpoena of the county attorney am
offense. This being a, penal statute. it
must be strictly construed, and with
such construction it appears that the
failure to obey the subpoena of the as
sistant attorney general is not made a
this state except such as are made so
by statute, and in determining whether
a crime has been committed we must
look to the statute and ascertain
whether the act complained of consti-
tutes crime: and when we look to this
statute we find that it is only the fail
ure to obey the subpoena of the county
attorney that constitutes a. crime. 1t is
with the legislature, subject to certain
constitutional limitations, to determine
what acts shall constitute offenses, and
the courts are not authorized to enlarge
IL 4