State v. Henschel

• Decision Date: 12 October 1918
• Docket Number: 21,708
• Parties: THE STATE OF KANSAS, ex rel. THURMAN HILL, as County Attorney of Montgomery County, Appellee, v. E. T. HENSCHEL, Appellant
• Court: Kansas Supreme Court

175 P. 393

103 Kan. 511

THE STATE OF KANSAS, ex rel. THURMAN HILL, as County Attorney of Montgomery County, Appellee, v. E. T. HENSCHEL, Appellant

No. 21,708

Supreme Court of Kansas

October 12, 1918

Decided July, 1918.

Appealed from Montgomery district court; JOSEPH W. HOLDREN judge.

Judgment set aside and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

OUSTER--Official Misconduct -- Ouster Proceedings Begun after Term of Office Expired--Too Late. Under the ouster law, section 7603 of the General Statutes of 1915, a public officer who is guilty of willful misconduct in office forfeits his right to hold the office for the term of his election or appointment, but the disqualification to hold the office does not extend beyond the term in which his official delinquency occurred.

George H. Wark, of Caney, S. H. Piper, and Chester Stevens, both of Independence, for the appellant.

S. M. Brewster, attorney-general, Thurman Hill, county attorney, and George D. Higgins, assistant county attorney, for the appellee.

OPINION

DAWSON, J.:

The defendant was ousted from his office as chief of police, under section 7603 of the General Statutes of 1915, for willful misconduct in office. The substance of the state's complaint against him was that he attempted to prevent a constable from arresting a person, the chief's chauffeur, for a misdemeanor. The constable was armed with a lawful warrant regularly issued.

There is no trouble in this case about the evidence. It was sufficient and satisfactory. The conduct of the chief of police was highly reprehensible. That the prosecution of the chauffeur was ill-advised, if that were true, is of no consequence. It is an absurdity to argue that the constable should have abandoned his efforts to make the arrest when informed that the man whom his warrant called for was the chief's chauffeur and a special police officer. A constable has nothing to do with the merits or demerits of the prosecutions in which he is ordered to serve warrants and make arrests. The constable's duty is to make the arrest though the heavens fall.

But the defendant raises one question which counsel for the state do not attempt to answer--possibly because they recognize that it is unanswerable. The defendant's official misconduct occurred on April 20, 1917. For that misconduct he forfeited his right to his office and might have been judicially ousted therefrom. His immediate superiors,...