Original Proceedings in Quo Warranto.
NOVEMBER
17, 1883, a petition was filed in this court, as follows
(title omitted,) to wit:
"1.
The state of Kansas, on the relation of W. A. Johnston
attorney general, and by virtue of the authority vested in
him by law, gives the court here to understand and be
informed, that at the general election of the year 1882, and
on the 7th day of November, 1882, said defendant, John
Foster, was duly elected to the office of county attorney of
Saline county, Kansas, for the term of two years, and having
duly qualified, did, on the 8th day of January, 1883, enter
upon the discharge of the duties of said office of county
attorney; and that ever since said 8th day of January, 1883
said John Foster has been acting as county attorney of said
county; that during the time said John Foster was so as
aforesaid acting as county attorney of said county, and from
the month of January, 1883, continuously to the present time
certain persons, to wit, Charles Holenquist, T. M. Ludes,
Gustav Behr, William Sweeney and others have been engaged in
said county and city of Salina, the county seat thereof, in
the willful, open and notorious sale of intoxicating liquors
in violation of law, and especially of the act known as the
prohibitory liquor law; that each and all of said persons
have kept in said city of Salina and maintained open and
public liquor saloons, in which were sold various kinds of
intoxicating liquors, neither of said persons having or
pretending to have any right, permit, or authority to deal in
or sell such liquors; that the fact of such violation of law
by said above-named persons was well known by said John
Foster from information received by him from others, as well
as from his own personal observation and experience, he being
a frequenter and patron of such illegal saloons during said
time; yet the said John Foster, though well knowing that said
persons were guilty of violating the provisions of said law
known as the prohibitory liquor law, and that it was his duty
as such county attorney to prosecute them for such violation,
'neglected and refused so to do,' and by frequenting
and patronizing their places of such illegal business,
'did encourage' them to continue to violate the law.
"2.
That on the 8th day of May, 1883, the sheriff of said Saline
county, having knowledge of the aforesaid violations of said
prohibitory liquor law, gave notice in writing to said
defendant, as required by § 12 of said law, that said
persons above named were selling intoxicating liquors in
violation of law, and furnished him with the names of
numerous witnesses, all being credible and good citizens of
said city of Salina, by whom such illegal sales could be
proven; and the said John Foster having inquired into the
facts of such alleged violation of said law, knew that the
same were true, and well knew from such inquiries, 'as
well as from his own personal knowledge and experience,'
that there was reasonable ground for instituting a
prosecution against each of said persons for such violation
of law; that said John Foster thereupon, and on the -- day of
May, 1883, filed complaints before a justice of the peace
against said persons, charging them upon his oath as county
attorney with such violation of law, but did the same
corruptly, and not in good faith for the purpose of
prosecuting and convicting said guilty persons; and after
repeated, voluntary and inexcusable delays and continuances
of all of the cases in which complaints were so filed, from
the -- day of May, 1883, to the 31st day of August, 1883,
said John Foster not being permitted by the justice of the
peace to still further delay and continue said cases without
cause, did dismiss each and all of said cases without any
just cause or excuse therefor, and well knowing that each of
said persons was guilty as charged by him in said complaints,
and that such guilt could be proven upon a trial; that the
said John Foster in delaying the prosecution of said cases
and dismissing the same as aforesaid was corruptly influenced
in his duty as county attorney by a desire to shield and
protect said guilty persons from the consequences and
penalties of their crimes, to the utter disregard of the
duties of his office and to the scandal of the administration
of justice.
"Wherefore,
said attorney general, on behalf and in the name of the state
of Kansas, prays judgment that the said John Foster, by
reason of his aforesaid acts, refusal to act, and misconduct,
may be adjudged and declared to have forfeited his said
office of county attorney of Saline county, Kansas, and that
he be ousted and removed therefrom.
W. A.
JOHNSTON,
Attorney
General of the State of Kansas.
"T.
F. GARVER, of Counsel."
December
10, 1883, the defendant filed the following demurrer, (title
omitted,) to wit:
"The
defendant demurs to the petition of the plaintiff in the
above-entitled action, and to every count, allegation and
charge therein contained; and for causes of demurrer states
the following:
"1.
That the court has no jurisdiction of the person of the
defendant.
"2.
That the court has no jurisdiction of the subject-matter of
the action.
"3.
That the plaintiff has not the legal capacity to sue.
"4.
That the plaintiff, on the relation of W. A. Johnston,
attorney general of the state of Kansas, has not the legal
capacity to sue.
"5.
That there is a defect of parties plaintiff.
"6.
That there is a defect of parties defendant.
"7.
That the petition does not state facts sufficient to
constitute a cause of action in favor of the plaintiff and
against the defendant.
"Wherefore,
the defendant asks judgment for costs.
THOMAS
P. FENLON, C. A. WATERS, JOS. G. WATERS, Attorneys for
Defendant."
January
3, 1884, the case came on for hearing, and the following
order was made:
"This
cause came on to be heard on the demurrer to plaintiff's
petition, herein filed; and thereupon, after oral argument by
J. G. Waters, T. P. Fenlon, and C. A. Hiller, attorney, for
defendant, for the demurrer, and by T. F. Garver, attorney
for the state, in opposition thereto, the said demurrer was
submitted and taken under advisement by the court; and
thereupon, after due consideration, it is ordered that the
demurrer be overruled, and the defendant be allowed ten days
to answer plaintiff's petition."
Thereupon
the defendant filed the following motions (title omitted):
"The
defendant moves the court to require the plaintiff to make
its petition more definite and certain, and especially with
the matters following:
"1.
That the plaintiff may be required to state the specific act
or acts which it was the duty of the defendant to perform,
and which he, as county attorney, neglected to perform, and
that each of the same may be separately stated and numbered.
"2.
That the plaintiff may be required to state the specific act
or acts which it was the duty of the defendant to perform,
and which he, as county attorney, refused to perform, and
that each of the same may be separately stated and numbered.
"3.
That the plaintiff may be required to state the specific act
or acts which it was the duty of the defendant to perform,
and which he, as county attorney, corruptly or oppressively
performed, and that each of the may be separately stated and
numbered.
"4.
That the plaintiff may be required to state the names of the
persons guilty of the violations of the so-called prohibitory
law, the time when and place where said violations took
place, the time when the defendant was informed of such
violation, by whom, and the names of the witnesses given the
defendant, by whom such violations could be proved.
"5.
That the plaintiff be required to state the particular act of
bad faith or corruption on the part of the defendant in the
institution of the prosecutions against the violators of said
law.
"6.
That the plaintiff be required to state the particular act of
the defendant in dismissing said prosecutions."
"And
now comes the defendant and moves to strike out and from the
petition filed herein as immaterial and scandalous, the
allegations therein that the defendant 'well knew of the
violations of law therein specified,' 'from his own
personal observation and experience, he being a frequenter
and patron of such illegal saloons,' and the word as
follows: 'and frequenting and patronizing their places of
illegal business, did encourage them therein to continue to
violate the law,' as being immaterial and
scandalous."
These
motions came on for hearing on January 4, 1884, and thereon
the following order was made:
"Now
comes John Foster, the defendant herein, by his attorneys, T.
P. Fenlon, J. G. Waters, and C. A. Hiller, and presents his
motion to strike out certain portions of plaintiff's
petition, and his motion requiring plaintiff to make his
petition more definite and certain; and thereupon, after due
consideration by the court, it is ordered that said motions
be overruled and denied."
January
10, 1884, the defendant filed the following answer (title
omitted):
"1.
The defendant, for his plea to the petition of the plaintiff
herein, says he is not guilty as he is in said petition
charged.
"2.
The defendant, for his further answer to the petition of the
plaintiff, says, for a second defense, that he denies every
allegation contained in the petition not hereinafter
expressly admitted.
"3.
For a third defense, the defendant admits that he has been
and now is the county attorney of the county of Saline, in
the state of Kansas, as is alleged in said petition; but
denies every allegation contained in said petition wherein he
is charged, or attempted to be charged, with...
