State Ex Rel. Jackson v. Bowden

• Citation: 101 P. 654,80 Kan. 49
• Decision Date: 10 April 1909
• Docket Number: 15,994
• Parties: THE STATE OF KANSAS, ex rel. Fred S. Jackson, as Attorney-general, v. DAVID E. BOWDEN
• Court: Kansas Supreme Court

101 P. 654

80 Kan. 49

THE STATE OF KANSAS, ex rel. Fred S. Jackson, as Attorney-general, v. DAVID E. BOWDEN

No. 15,994

Supreme Court of Kansas

April 10, 1909

Decided January, 1909.

Original proceeding in quo warranto.

STATEMENT.

THIS is an original proceeding in quo warranto, brought by the state to oust the defendant from the office of chief of police of the city of Kansas City. A commissioner was appointed to take the evidence and make findings of fact. His report, to which no exception is taken, follows:

"(1) David E. Bowden was appointed and commissioned as chief of police or city marshal of Kansas City, Kan., April 9, 1907 and has held that office continuously since that date.

"(2) The police court in said city, between the dates April 9 1907, and May 16, 1908, the date of filing the petition in this case in this court, tried thirty-seven cases against various parties involving the charges of vagrancy maintaining a nuisance, and selling liquor, in which the defendants were found guilty in all but one case. A table of such cases, with certain facts in connection therewith, is hereto attached and marked 'Exhibit A' and made a part of these findings.

"(3) At the trial of about one-half of these cases Chief Bowden was present in police court and heard the evidence. He was also present at the time of the raid upon the house of Maggie Marshall, on June 21, 1907, when he found a case of beer in the cellar, which was taken to police headquarters. On June 27, 1907, he assisted in breaking open a shed on North Fifth street, where C. Mathews had placed six cases of beer, which were confiscated and taken to headquarters. There was no evidence of selling in connection with this. On November 21, 1907, he knew of the seizure of beer by the officers going in boats to a room at 276 Central street, during the flood, When Al DeGraw was arrested and convicted.

"(4) After consultation with the police judge, Chief Bowden ordered or knew of paroles, stays to leave town and pardons in the cases of W. J. Murray, Ed Burke, H. C. Mack, Wm. Murray, Cynthia Harris, Ella Hobson, Maggie Marshall, Mary Cannon and E. Cannon, as will be seen by reference to table of cases attached, 'Exhibit A.'

"(5) Mr. Bowden had several conversations, dates not given, but commencing shortly after his term of office began, in which these liquor prosecutions were talked over in a general way with the county attorney, referring to the fact that the places had been raided, the party operating brought to trial in police court, and sentenced. The county attorney did not deem the cases of sufficient importance to prosecute in the name of the state, and the county attorney understood that, if there was a case that would be proper, in the judgment of the prosecuting attorney, to take charge of and prosecute in the name of the state, Mr. Bowden was there, ready and willing to furnish any information desired. But these conversations did not arise from visits to the county attorney by Mr. Bowden for the purpose of giving information in regard to the violations of the prohibitory liquor law.

"(6) The ordinances of Kansas City, Kan., require the city marshal to keep in his office a proper book in which shall be entered the name of every person arrested for any violation of the ordinances of the city, the nature of the offense with which he is charged, the date of the commitment and discharge of all persons committed to the city prison, and directing that no person so committed should be discharged before serving out the full time for which he was committed, except upon the written order of the mayor, all of which records were kept as provided by the ordinances.

"The city marshal by such ordinances is given control over the city jail and all persons sentenced to imprisonment therein for the violation of any ordinance.

"(7) Chief Bowden was notified by a special policeman appointed by the mayor of several places where it was said that liquor was being sold. He also received information by telephone and by letter of a similar character. These places he investigated, either personally or through the members of the police force, with reasonable diligence. In many places nothing was found, but in some beer was seized and taken to headquarters.

"(8) The defendant, Bowden, did not know that the law required him to report concerning the violations of the prohibitory liquor law to the county attorney until in May, 1908, a few days before this suit was begun in the supreme court of the state.

"(9) Shortly after May 11, 1908, defendant Bowden furnished the county attorney of Wyandotte county, Kansas, and the assistant attorney-general in said county, with a list of the cases tried, officers making the arrests, and witnesses in the thirty-four cases shown in 'Exhibit B' of the evidence, being the same subject-matter set out in 'Exhibit A' of these findings of fact. On September 20, 1908, he mailed to the county attorney eight reports covering the period from June 12, 1908, to September 14, 1908, and again on December 10, 1908, he made a further report to the county attorney of seven additional cases. He made no other written reports to the county attorney or to the assistant attorney-general.

"(10) The reports, 'Exhibit B' of the evidence, referred to in finding 9 above, were made at the request of defendant Bowden, by the police clerk, from a docket kept by him and the police court docket. They were made from arrest slips turned in to him by the captain of the police sergeants. The arrest slips were made by the sergeants of the different stations and transmitted to headquarters. Of many of the facts stated in this letter to the county attorney, 'Exhibit B' of the evidence, the chief of police, Bowden, had no personal knowledge other than that they were the records made by officers under his control.

"(11) The arrests shown in 'Exhibit A' of these findings were made under an ordinance of Kansas City, Kan., known as the 'tippling-shop' ordinance. Defendant Bowden, previous to his appointment as chief of police, had never been connected with the police department in any capacity. Shortly after his appointment he was taken ill and spent a week or two at Excelsior Springs. He had also been seriously ill at other times during the year.

"(12) The evidence does not disclose that any of the arrests shown in 'Exhibit A' of these findings were made at places where there was any established bar or room where liquor selling was carried on as a business. So far as disclosed by the evidence these violations of the law were by men and women, both white and colored, in their homes and in temporary places, where small quantities of liquor were kept for sale. Some of the arrests show no sales, the evidence being that beer was found in the cases in cellars, coal-houses and shacks of various kinds, and well merited the epithet of 'migratory,' applied by the county attorney.

"(13) Of the cases named in 'Exhibit A' of these findings, eighteen were appealed to the district court. None of them was ever tried in the appellate court. The cases of Maggie Marshall (No. 14,692), Lizzie Giles (No. 15,202), Bud Patterson (No. 15,535), Mollie Connors (No. 16,387) and James Hogan (No. 16,393) were dismissed in the district court by the city attorney. Nothing was done to enforce the original police court sentences in these cases. There is no evidence that mandates were sent down to the police court upon the dismissal of these cases in the district court."

"On January 29, 1909, I met C. W. Trickett, assistant attorney-general, attorney for plaintiff, and H. S. Dean and Ralph Nelson, attorneys for defendant, at Kansas City, Kan., and made the following

AMENDMENTS TO FINDINGS OF FACT:

"In finding No. 3, after the word 'this' in the ninth [eleventh] line, amend so as to read: 'Or in the Marshall case. In July, 1908, defendant knew of the seizure of beer by the officers going in boats to a room at 276 Central street, during the flood, where Al DeGraw's place was.'

"In finding No. 13 change is made so that the whole finding reads as follows: 'Of the cases named in 'Exhibit A' of these findings eighteen were appealed to the district court. None of them was ever tried in that court. In the cases of Maggie Marshall (No. 14,692), Lizzie Giles (No. 15,202), Bud Patterson (No. 15,535), Mollie Connors (No. 15,387) and James Hogan (No. 16,393) the appeals were dismissed in the district court, but nothing was done to enforce the original police court sentence in these cases. The mandates were not sent down to the police court upon the dismissal of these appeals.'"

"Exhibit A" referred to in the findings gives the numbers of the police court cases, the names of the defendants, some of whom appear more than once, the dates of the arrests, the charges preferred, the names of the arresting officers, the names of the officers who were witnesses, the sentences imposed, and some other information.

Judgment rendered in favor of defendant.

SYLLABUS

SYLLABUS BY THE COURT.

1. INTOXICATING LIQUORS--Duty of Officers to Notify County Attorney of Illegal Traffic. To comply with section 2462 of the General Statutes of 1901, requiring the marshal and other police officers of a city having notice or knowledge of any violation of the prohibitory liquor law to notify the county attorney of the fact of such violation and to furnish him the names of the witnesses by whom such fact can be proved, it is not sufficient that the officer should merely talk occasionally with the county attorney in a general way about police court liquor prosecutions. The notification should be given in...