The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-09
House Must Testify to the
Liquor Sales.
Supreme Court Holds Governor
Was Right.
DAWSON MUST OBEY
Governor Has Right to Order
Attorney General.
Justices Porter and West File
Dissenting Opinions.

Governor StuDbS won the ConlfoNAAnS
in the supreme court with John Dawson
attorney general. as to the right OF the
governor to direct the attorney general
to summon Jay Z. House. of the To-
peka Capital, to tell where 1t was that
House purchased liquor over a bar in
a small country town in Kansas. The
supreme court sustained the demurrer
OF the governors attorney to the an
swer of the attorney general in the
Inandanlus proceeding filed by the gov
ernor. Justices West and Porter dis
sented from the majority opinion OF the
court. Justice West holding that a
dangerous precedent was thus estab-
lished.
In deciding that the governors pow
ers in the enforcement of the law are
mandatory and sweeping the court Aovh
the ground that the governor Is inc
highest authority in the executive ae-
partment and that when required py
the governor, the attorney general mas
no discretion to refuse to prosecute ~
such a proceeding as that covered III
this case The court held, further thAl
il is within the authority Of the COVER
nor to name the particular witness 70
be subpoenaed and examined Justic7
Benson wrote the opinion. lie quotes
me House newspaper syndicate article
that started the controversy ana aiso
excerpts rom the many letters eNcndns-
ed by the governor ana attorney Ben
ersl In passing on the law in the case
the court declared that the real quea-
ton TO be determined was whether tno
attorney general is subject 70 the 81 81
rection Of the governor ia case OF tnla
kind or whether he may. at ms uiseIe-
ton refuse to comply with such de-
mand. ..,. ...,--
nev general is not questioned ana mere
she court quotes from the constitution
ecutive power of the state snah PC
vested in the governor ana that tite
other executive officers are required 70
furnish him with Information t-, tels,eille .
to their duties and to make annual re-
norts to him and Withall ne Is cnarseo
with the duty of seeing that ali Avs
are faithfully executed lhe couiS -. ~
clared further, 1T is manlItSt llvII
these various provisions that the terIu'
supreme executive power, ~ solne
thing more than a verbal adorhInelt
of the office. but implies such power as
will secure an efficient execution on tle
laws which is the peculiar proNliIe1
Of that departm ent, to be accom-
nIished however. in the manner anu
bv the method, and within the iinl'@
tions prescribed by the constitution. n.
The court recognized the Lact thae
Mr. Dawson pointed out IN MS prlei
that the duties of his Office are mann
fold and arduous and rest upon . Ilai.
alone But the court also found thap
the governor is charged with lns 80. eNS
cutiou of the law, and this coulu Oily
he done through the means proNideu
by the constitution ana among 1nc70
is the assistance" Of the attorney ger
eral If the governor may NOT invoke
that mower then "he is denied recourse
to means that the legislature peue.cu
to be necessary to its enforcement.
Justice Porter Dissents.
Justice Porter. in dissenting RON from
the opinion of the court pays tripute
to Mr. Dawson, the attorney general
when he says that he beneNes that no
pretense is made that he mas peen or
is opposed to the enforcement OF l~le ~
nrohibitory law or that he has peeh
iukewarm in the performance or ms
duties On the contrary the recorns
show that he has been dlhgenl aho
successful in the enforcement or that
law Justice Porter says, turlher.
ct is to be regretted that this court
has been called upon to give serious
and grave consideration to what turns
ont "a he a mere tempest in a tea
not From the correspondence pe-
tween the two officials, which was
conducted entirely through the pun
lie press, instead of in the usual anu
ordina-- channel il seems to be the
desire OF one OF the parties TO nave
a certain person compelled 70 tesuts
as a witness concerning ms knoMl-
edge of the alleged violations OF the
nrohibitory law. If the only purpose
of the governor was to bring about
prosecution all that was necessary
/ was TOT MN 10 uAAtNA AAN e~NN'AAt~
general to investigate and prosecute,
| leaving it to that officer to use MS
| own Judgment and discretion as to the
means to be employed in such prose
/ cutiOn II the attorney general rail-
1 ed to perform his duty or acted cor
I ruptlv he can be removed by I'M
peachment, but we have no right TO
compel him to perform any act which
4 is discretionary"
Justice West, who also dissented,
gave it as his opinion that a state gov
/ ernment was not modelled on the cabi-
net system. The state officers are All
| chosen by the people and are all alike
subject to impeachment Each has a
J field Of official discretion which cannot
be invaded by any other officer 1t
/ is the unquestioned and unchanging
law" said Justice West. that official
! discretion cannot be controlled by
mandamus," and he cites the supreme
court decision Of Kansas to uphold his
! theory Justice West says further. III
once the domain of discretion Is In
vaded. if the attorney general cannot
his own Judgment touching the steps
preliminary or preparatory to a prose-
/ cution no reason suggests itself why
! he should be permitted TO exercise it
! in respect to the witnesses he shall call
during the trial, the order they shall
be introduced. the questions he shall
propound or the policy to be pursued.
/ Anyone who has had experience In
! conducting prosecutions arising from
! the prohibitory law knows that eau
| ton and tact as we'll as good judg-
ment and legal learning are necessary
and ~ fe often essential that the rrorc-