80 Kan. 49 | Kan. | 1909
Lead Opinion
The opinion of the court was delivered by
Much space is taken up in the statute-book with laws regulating the sale of intoxicating liquors for lawful purposes, prohibiting and punishing sales for unlawful purposes, and'suppressing and punishing the maintenance of liquor nuisances. The county attorney of each county is required diligently to prosecute all violations of these laws, and for failure of duty in this respect he may be removed from office.
“It shall be the duty of all sheriffs, deputy sheriffs, constables-, mayors, marshals, police judges, and’police officers of any city or town having notice or knowledge of any violation of the provisions of this act, to notify the county attorney of the fact of such violation, and to furnish him the names of any witnesses within his knowledge by whom such violation can be proven. If any such officer shall fail to comply with the provisions -of this section, he shall upon conviction be fined in any sum not less than, one hundred nor more than five hundred dollars; and such conviction shall be a forfeiture of the office held by such person, and the court before whom such conviction is had shall, in addition to the imposition of the fine aforesaid, order and adjudge the forfeiture of his said office. For a failure or neglect of official duty in. the enforcement of this act, any of the city or county officers herein referred to may be removed by civil action.”
The primary purpose of this provision is to put the county attorney in command of evidence whereby the law may be vindicated. The' presumption is that he will do his duty. Sometimes, however, the county attorney displays masterly inactivity in the enforcement of the liquor-law, and then the diligent and faithful making of reports to him by the officers named may either •compel him to act or furnish ground for his removal.
The law was framed to accomplish results. Its letter and spirit are unmistakable to any one who carefully studies it. When the defendant took office he bound himself to fulfil both. The findings are conclusive that he had knowledge of many violations of the law and knew the names of the witnesses by whom such violations could be proved. The record he was required to keep and the arrest slips turned in. by his subordinates gave him notice of the fact of other violations. He did nothing except to talk with the county attorney in a .general way about the subject of liquor prosecutions by the city. This is not what the statute requires. The notification must be given, in such a manner that the
The fact that the cases within the defendant’s knowledge were sporadic, or, as they are termed, “migratory,” is immaterial. The statute does not recognize the classification. They were violations of the law, and if a policeman know the facts it is his simple duty to notify the county attorney.
In communities where persistent efforts to evade the •law are persistently opposed the liquor traffic is usually reduced to the degenerate state described in finding No. 11, and to what is known as “bootlegging.” The law is not satisfied until such violations are punished. When detected by police officers they must be reported to the county attorney with promptitude or successful state prosecutions become impossible. Notifying the county attorney is just like any other regular police business. The purpose is the efficient suppression and certain punishment of crime. Unqualified diligence and celerity are always necessary to accomplish'this purpose. Manifestly the making of weekly or monthly or quarterly reports is insufficient. The county attorney must be notified just as soon as the due and orderly discharge of police duty, will permit.
It should not be inferred from what has been said that the county attorney must prosecute indiscriminately every kind of a case brought to his attention, even though, under the circumstances, and considering the evidence available, he has no reasonable prospect of se
Such being the clear law of the > case, the question is whether the defendant should be ousted from office. There is no finding of corruption or of wilful disobedience of the statute., The defendant was without police experience when he undertook his office, was ignorant of the law, and has suffered from ill health. From a showing made in response to a cost order it appears he is a poor man, and his term ends in. a few days. He has been ready and willing to do his duty, but the attitude of the county attorney toward the class of cases with which he has had to deal seems to have misled him. The parole of prisoners and the enforcement of police court sentences have nothing to do with the case. Ignorance of the law does not exculpate, nor does ill health, unless it incapacitates from duty; but all the circumstances of the defendant’s situation may be considered in connection with his motives, which plainly enough are not dishonest, and so may influence the discretion which the court may exercise over the extraordinary remedy of quo warranto. That the court has such discretion, see Tarbox v. Sughrue, 36 Kan. 225; Weston v. Lane, 40 Kan. 479; Horton v. Wilder, 48 Kan. 222, 226; City of Topeka v. Water Co., 58 Kan. 349; The State, ex rel., v. Wilson, 30 Kan. 661, 671.
It is difficult to say what will best satisfy the demands of justice in the premisés, but under all the facts the court is of the opinion that judgment should be rendered in favor of the defendant, and it is so ordered.
Dissenting Opinion
(dissenting) : A positive provision of statute has been violated by the defendant, and for such violation the legislature in its discretion has prescribed the penalty of removal from office. I doubt the power of the court to interpose its discretion as against
