The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1903-10-13
he WON'T DO IT.
City Attorney Spencer Refuses
the Responsibility.
Tells Mayor He Must Direct
Liquor Prosecutions.
OPPOSES RAID SYSTEM,
Says That This System Hasn't
Been Effective.
Cases In Which Nothing Can Be
OPPOSES RAID SYSTEM.
Cases in Which Nothing Can Be
Gained to Be Dismissed.

City Attorney CndfieS r. spencer 0lS-
charged a double barreled document
this morning in the. direction of the
mayor and city council 1t is a formal
refusal to assume the duties of insti-
tuting liquor prosecutions, as the coun-
ell required he should do in a resolu-
ton passed at its last meeting. At the
same time. it is demand that the re-
sponsibility for this work be placed
directly upon Mayor Bergundthal. It
amounts almost to a declaration of war
by the city attorney on the mayor.
When asked this morning whether or
not he had anything to, say concerning
Mr.. SDencer's statement. which was
on file with the city clerk. Mayor Ber-
gundthal said:
Il don't care to enter into a DISPUTE
with Mr.. Spencer. We have been able
to get along very well SO far, and am
not anxious to start anything
The facts OF the case seem to be that
the present city administration made
certain promises prior to election and
is now having trouble to deliver the
goods. 1t is a question of making a
scapegoat out of somebody.
Mr.. Spencer's communication is as
follows:
Topeka, Kas.. Oct. Is, 1903.
To the Mayor and Council:
The city attorney desires to enter
formal objection against a portion of
| the resolution passed by the council
October in reference to the institution
and maintenance of prosecutions by
him. and at the same time to state his
position in regard thereto. He does not
do this for the purpose of contention.
but because he believes it necessary
with reference to future action.
To hold the city attorney responsible
| for the ''institution' of prosecutions
would be transferring the responsibility
for this portion of the duties pertai lining
to the enforcement of the ordinances of
oft f~0ro1 fl7n
| the city attorney. .,.
q The law has Exed the duties of pub
lie officers. Section so of the city char
ter provides: The city attorney shall
/. attend all cases wherein the city
is party liz all courts"
section 1l6 provides: 1.-The city at
torney shall, in person or by deputy
appear and prosecute all cases in the
The prohibitory law in fixing the du-
ties of public officers in regard to it's en-
| Iofcement, provides special duties to be
performed by probate judges, county at
torneys, sheriffs, deputy sheriffs, con-
stables, mayors, marshals, police judges
and police officers; but none are pre-
scribed for city attorneys
Sec. sc of the city charter provides:
He Gthe nayorl shall have the super
Intending control of a llsthe officers and
: fairs of the city. and shall take care
that the ordinances Of the city and this
act are complied with
sec. rs provides: He (the mayor)
shah be active and vigilant in enforcing
| all laws and ordinances for the govern
ment of the city, etc
| Sec.ll9 provides: The chief (of police)
| in the discharge of his duties, shall be
subject to the orders of the mayor only:
Inc other police officers and policemen,
n the discharge of their duties, shall be
subject to the orders of the mayor and
! chief only etc.
1t is not the duty Of the city attorney
| to institute prosecutions, that Is, to hunt
up evidence upon which to base a pros
ecution. and he most respectfully de-
tclines to assume such duties.
I What are the duties of the city attor-
ney?
1t is his duty to cooperate with the
mayor and chief of police in the en-
forcement of the ordinances, to advise
With them as to the law, the kind, quail
! ity and sufficiency of the evidence nee
essary to prosecution, to draw COM
! plants and to prosecute cases. All these
the city attorney has done and is ready
and willing to do in the future.
| Under what circumstances should the
city attorney be held responsible for
prosecutions in the police court?
He should be held responsible for
those prosecutions only in which the ev-
idence has been first submitted to him,
and received his approval If the city
attorney is to be held responsible for
prosecutions in the police court. it will
or the mayor. to direct the chief of po-
lice not to institute any prosecutions
except upon the approval of the city
attorney. The city attorney has no
authority to issue any such orders
The city attorney has no legal right
to refuse the chief of police a COM
plant. If he did, It would not prevent
| the making of the complaint, for under
the law there is nothing to prevent the
chief of police or any other person
1raxx -iv-o n T71o Mt
that is frequently done. Besides, a re-
fusal by the city attorney to make out
a complaint. would in many instances
put the city atto~Gc. in conflict with
the orders md directions of the mayor
in carrying out the executive policy of
the administration.
Under the law and practice in state
cases no complaints are issued and
prosecuted, except upon the examina-
ton and approval of the county attor-
ney.
What should be done in the future?
The city attorney desires to go on rec
ord distinctly as to his position and ac
ton for the future in regard TO liquor
cases. He is decidedly opposed to the
raid system carried on for some five
years past.
Since the police force was turned over
to the mayor some five years ago by
the abolition of the metropolitan police
board there have been about 800 appeal
LIQUOR cases on the docket of the district
court During that time the costs have
been immense and convictions COM
paratively few. Throughout all this
period most of the cases have been dis
missed In most of the cases tried on
their merits there have been acquittals.
The ultimate object to be accomplish
ed in these cases should be the convic-
ton of the defendant.
It is the Judgment of the city attor
ney that no prosecution should be in
stituted and carried on except upon
such evidence as Will reasonably JUS
tify the expectation of a conviction in
the district court. The efforts and time
of the city officials should be directed
toward making such number of good
cases as can be tried at the next term
of the district court. There have always
been more cases on the docket than
could possibly be tried.
Constant raiding of the ininfist has