In re Gilson

• Citation: 9 P. 763,34 Kan. 641
• Parties: In the Matter of the Petition of D. D. GILSON for a Writ of Habeas Corpus
• Decision Date: 04 February 1886
• Court: Kansas Supreme Court

9 P. 763

34 Kan. 641

In the Matter of the Petition of D. D. GILSON for a Writ of Habeas Corpus

Supreme Court of Kansas

February 4, 1886

Original Proceedings in Habeas Corpus.

PETITION for a writ of habeas corpus, filed in this court December 21 1885, by D. D. Gilson against Conway Marshall, as sheriff of Anderson county. The opinion, filed February 5, 1886, states the material facts.

Judgment remanded.

M Shoonover, and J. G. Lindsay, for petitioner.

S. B. Bradford, attorney general, for The State.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This is a petition for a writ of habeas corpus, to inquire into the cause of the restraint of the petitioner, D. D. Gilson, by the sheriff of Anderson county, and to obtain his discharge. It appears from the record that on November 16, 1885, an information was filed in the district court of Anderson county, charging the petitioner with an unlawful sale of intoxicating liquors, under the provisions of § 4, ch. 149, Laws of 1885, commonly known as the prohibitory liquor law. Under the information, the petitioner was tried and convicted upon three counts. He was sentenced to pay a fine of $ 300, together with all the costs of prosecution, and he was also sentenced to the jail of Anderson county for ninety days. The cause of his restraint is the order of commitment issued under the conviction. The complaint was prepared and filed in the district court by H. L. Poplin, as assistant attorney general, under the authority granted in § 11 of said chapter 149. It is now claimed that said section is unconstitutional and void, so far as it attempts to confer upon the attorney general any authority to appoint assistants. In our opinion, this is not the case. The provisions of said § 11, so far as important to be considered at this time, are as follows:

"Whenever the county attorney shall be unable, or shall neglect or refuse, to enforce the provisions of this act in his county, or for any reason whatever the provisions of this act shall not be enforced in any county, it shall be the duty of the attorney general to enforce the same in such county; and for that purpose he may appoint as many assistants as he shall see fit, and he and his assistants shall be authorized to sign, verify and file all such complaints, informations, petitions and papers as the county attorney is authorized to sign, verify, or file, and to do and perform any act that the county attorney might lawfully do or perform; and for such services he shall receive the same fees that the county attorney would be entitled to for like services, to be taxed and collected in the same manner."

The office of county attorney is not created by any constitutional provision, and therefore the duties of that office can only be such as are prescribed by the legislature. These duties may be increased or decreased, as the legislature in its wisdom may determine. The legislature may wholly abolish the office. It may create the office of district attorney, with authority in such officer to prosecute and defend all actions and proceedings, civil or criminal, in his district, in which the state is interested or a party. It may devolve the duties of county attorneys upon the attorney general. The office of attorney general is provided for in § 1, article 1 of the state constitution, but his duties are not so defined or limited by the constitution as to forbid the legislature from conferring upon him and his assistants the power set forth in said § 11. Under the provisions of the statute of 1879 the attorney general is required to consult with and advise county attorneys, when requested by them, in all matters pertaining to their official duties. (Ch. 166, § 73.) Under the provisions of the statute...