Montpelier examiner. [volume] (Montpelier, Idaho) 1895-1937, 1921-06-03
Prosecuting Attorney May Re-
side Outside the County Seat
Without Interference With
Official Duties of County.

Franklin Bulge vs.. ID. G Kunz, IA
vors Judge Kunz in every instance
The written opinion was received
Sunday morning by Attorneys Cough
and Bagley, who represented Judge
Kunz. The opinion is far-reaching,
ana decides very important issue
in the state of Idaho. The full text
of the document is herewith printed:
In the district court of tho fifth
judicial district of the state of Ida
no, in and for the county of Bear
Lake.
Franklin Bulge, plaintiff, VS.. ID. G.
Kunz, defendant.-CivilN No. 461-
Memorandum decision.
This Is summary proceeding
brought pursuant to the provisions
of Sec. 1854 G. S., to remove the de-
fendant from office as prosecuting
attorney of Bear Lake county, Idaho.
The matter is before the court upon
defendants amended demurrer to
tho information.
After alleging that defendant is
the duly elected, qualified and acting
prosecuting attorney of Bear Lake
county, body corporate and political
subdivision of the state of Idaho, and
that plaintiff is, a citizen, resident
and taxpayer within said county, the
information charges:
That tho defendant, at all times
since January 10, 1921, has been
knowingly, wilfully and Intentionally
failing to perform the duties of his
said office al said prosecuting at
torney, in the following particulars:
1. That the defendant az such
prosecuting attorney, since January
10, 1921, has failed, neglected and
refused" to have his office, or have
or maintain any office, at the coun-
ty seat OF said county.
2. That the defendant as such
prosecuting attorney "has failed,
neglected and refused as aforesaid to
keep his office or any office open
for the transaction of business at
the county seat from o'clock a. m.
until o'clock D. M, of each or any
day except Sunday and holidays"
8. That the defendant, has re-
sided since his election and qualifi-
cation, at the city of Montpelier, Bear
Lake county, Idaho, and has failed,
neglected and refused, after demands
made by tho citizens of said Bear
Lake county, Idaho, to remove to,
and reside at said county seat, or
to establish, keep, or to keep open
his official office as prosecuting at
torney, ETC., as required by Sec. 1851
of the Compiled Statutes of Idaho.
has filed an amended demurrer
whereby he demurs to tho informa-
tion generally upon tho grounds:
/. That the information does not
state facts sufficient to constitute
cause of action.
2. That 1t does not state facts
sufficient to constitute a public of
fense; and upon numerous special
grounds which / will not take time to
enumerate.
At the hearing counsel for defen-
dant urged five objections to the in
formation:
1 That the information does moi
state facts sufficient to constitute Q
cause of action.
2. That the information fails tC
specify any particular official duty
that defendant, as prosecuting at
torney, has failed to perform by rea.
son of his having failed to maintain
an office at the county seat.
8. That sections 1851 and 1854
Compiled Statutes providing that the
prosecuting attorney shall reside anC
maintain an office at the county seat
in SO far as they refer to the prose
cutting attorney, we're repealed by thu
adoption of the state constitution, al
said sections (formerly sections 1926
and 1926 Revised Statutes. are re
pugnant to the provisions of the con
stitution and havo not been re-en
acted by the state legislature.
4. That section 1854 G. s., undel
which this proceeding is brought, Il
unconstitutional and not in force.
s. That, under the facts in thi
case, If it be conceded that seceion
1854. 1861 and 1864 c. s. are Il
force, nevertheless the plaintiff ha
mistaken his remedy and should pro
ceed by the methods prescribed II
sections 867O to S683 G. S., or b,
quo warranto, section 1924 G. S.
Section 1854 c. s. reads as fol
lows:
Sec. 1854 (7459). Summary pro
ceedings for Removal.-When an in
formation IN writing, verified by tn
oath of any person, Is presented to
district court, alleging that any OF
ficer within the Jurisdiction of tn
court has been guilty of charging an
collecting Illegal fees for service
rendered or to be rendered in hi
office, or has refused or neglecte
to perform the official duties pertain
ing to his office, the court must cit
the party charged to appear befor
the court at a time not more than !
nor less than five days from the tim
the information was presented, an
on that day or some other subse
quent day. not more than 20 day
from that on which the informatio
was presented, must proceed to heal
IN a summary manner, the informs
tion and evidence offered in supper
OF the same. and the answer and eY
dence offered by the party fnforme
against; and If on such hearing
appears that the charge is sustained
the court must enter 3 decree tha