In re Henry Siebert

• Decision Date: 11 November 1899
• Docket Number: 11,571
• Citation: 61 Kan. 112,58 P. 971
• Parties: In re HENRY SIEBERT
• Court: Kansas Supreme Court

58 P. 971

61 Kan. 112

In re HENRY SIEBERT

No. 11,571

Supreme Court of Kansas

November 11, 1899

Decided July, 1899.

Original proceeding in habeas corpus.

Judgment remanded.

W. H Carpenter, for petitioner.

King & Kelley, and J. T. Dickerson, county attorney, for respondent.

OPINION

DOSTER, C. J.:

This is an original proceeding in habeas corpus. An information was filed during vacation in the clerk's office of the district court of Marion county against Henry Siebert, charging him with the unlawful sale of intoxicating liquors. Upon the filing of this information the clerk of the district court issued a warrant to the sheriff commanding him to arrest the said Siebert to answer the charge, and to bring him before the judge of the district court, or himself as clerk of said court, to be admitted to bail for his appearance at the next term. The arrest was made and the accused brought before the clerk, on account of the absence of the judge. Bail was fixed by the clerk and given. Subsequently the sureties on his bond procured from the clerk a certified copy of that instrument, and, in conformity to the procedure of the statute, delivered their principal and a copy of the bond to the sheriff, who received the surrender, and thence detained the accused in his custody.

The petitioner claims that his detention is unlawful because the clerk of the district court, notwithstanding the provisions of section 88, chapter 102, General Statutes of 1897 (Gen. Stat. 1899, § 5318), had no authority to issue the warrant for his arrest, and consequently the sheriff had no authority to arrest and detain him. The argument is that the issuance of warrants is a judicial act and can only be performed by a judicial officer upon hearing and consideration; that the clerk was not a judicial officer and had no authority to hear and determine. Among other cases, and as the one most nearly parallel in respect to its facts, People v. Colleton, 59 Mich. 573, 26 N.W. 771, is cited. Among the decisions of this court, In re Sims, Petitioner, 54 Kan. 1, 37 P. 135, and In re Huron, 58 id. 152, 48 P. 574, are cited. In the case of Simms it was held that the statute which assumed to confer on county attorneys the power to commit witnesses for contempt on account of their refusal to be sworn or to testify before him was unconstitutional because attempting to confer judicial powers on a merely executive officer. In the case of Huron a similar holding was made as to a statute which assumed to authorize a notary public to commit a witness for a like contempt to be sworn or to testify. We do not regard these cases as bearing directly upon the one under consideration. In those the powers which the statute assumed to confer and which the officers named attempted to exercise were the powers of final hearing and judgment. They were the powers to convict and punish. They were not the powers of provisional arrest and detention, and were not conferred or executed to secure the attendance of witnesses or parties but were exercised for purposes of punishment. The power to sentence and condemn is essentially judicial and cannot of course be exercised by any other agency than a court, or tribunal assimilated to a court. In this case no sentence or condemnation was passed. The warrant only commanded the arrest and detention of the accused to await the sitting of court or to give a recognizance for his appearance.

It is true that the constitution ordains that no warrants shall issue except upon probable cause supported by oath or affirmation. The information filed against the petitioner was supported by an oath in positive form. This, within the former decisions of this court, was a statement of probable cause. "Where an information states an offense and is sworn to positively by some person, it is sufficient of itself to authorize the clerk to issue a warrant for the arrest of the defendant without any finding by the clerk or other person of probable cause to believe the defendant guilty." (The State v. Brooks, 33 Kan. 708, 7 P. 591. See, also, The State v. Schweiter, 27 id 499; In re Eddy, Petitioner, 40 id. 592, 20 P. 283; The State v. Johnson, 60 id. 860, 58 P. 559.) When an information has been sworn to positively no inquiry can be had into the question whether the prosecuting witness or county attorney verifying the charge had in...