The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1906-06-14
Oath Not Administered by One
Having Authority.
DECISION
Holds That Probate Judge Must
Do Work in Person.
Contrary to the Expectations of
Probate Judges Association.

Judge Arthur McCabe, of the city
court of Topeka, ruled today in the
Smalley perjury case that no one but
the probate judge can take the affidavit
of an applicant for marriage license.
Smaller is not guilty of perjury, and
the validity of the disputed wedding is
not affected.
It caused a decided stir about the
court house and among attorneys who
heard the decision. The question has
been a mooted one for some time. and
County Attorney Hungate, when the
Smalley case came up, decided to have
1t threshed out Much difference of
opinion exists over the opinion Of the
court, but inasmuch as the case was
criminal one, and lost by the state, it
cannot be appealed and the question
can therefore not be taken before the
supreme court.
The case came up in the following
manner: A man named Smalley over
so years of age, came into the office
of the probate judge a week ago with
a young girl, who later proved to be
only is years Of age, and obtained
marriage license and married her upon
the pTetenSe that she was Is years
old. The girls mother went before the
county attorney and swore out a COM
plant for Smalley's arrest, charging
him with perjury, Smalley got Hazen
& Cav to defend him and they brought
up the point that the affidavit preceding
Smalley's application for a license, had
been taken by Mrs. Marie Roth Kill
lilac, the clerk in Probate Judge Hayden 3
court, and that this was contrary 10
law, the contention being that the pro-
bate judge must take all such affida-
Wits himself.
The further contention Of the defend
ant was, that inaSmuch as the false
oath alleged in the complaint was ta-
ken before a notary public. no perjury
was committed, counsel contending that
in order to constitute perjury the false
oath must be taken before an officer
authorized to take an oath, and the
further contention was that a notary
public had no authority under our stat
utes to take the particular oath re-
ouired but that the probate judge him
self was the only one authorized to
cause such oath to be taken and that
the law made it mandatory upon him to
do this himself
Section concerning the oath to be ta-
ken as to the relationship of the parties
The court held that the section under
| consideration should be construed to
mean. that upon the probate Judge him
self devolved the duty of administering
the oath necessarily taken by the par
ties that they were of the proper age
The probate judges association, which
was largely instrumental in passing this
law. differs very radically with Judge
McCabe. At the associations last meet
ing its opinion on this very subject was
| as IOllOWS.
The probate judges association re-
alizing that the probate judge did not
sit in the capacity of a court knew that
they did not have the right to adminis-
ter the oath unless the power was spec
tally conferred by the legislature. So
they caused to be inserted in that act
the following sentence: The probate
Judge is hereby authorized to administer
oaths for that purpose. There is moth
ing in the act which makes it an ex-
elusive right to administer the oath.
Any person authorized by law to admin
lister an oath may take the affidavit re-
quired by that section. It could not be
contended that the affidavit would be
perjury If sworn to before a probate
Judge any more than 1t would be before
a notary public, because both sit in the
same capacity as mere individuals
clothed with the power to administer
an oath, and it could not be contended
that either sat as court The supreme
court of the state of Kansas has decided
this point clearly"