State v. Nield

• Decision Date: 01 May 1896
• Docket Number: 224
• Citation: 4 Kan.App. 626,45 P. 623
• Parties: THE STATE OF KANSAS v. WILLIAM H. NIELD
• Court: Kansas Court of Appeals

45 P. 623

4 Kan.App. 626

THE STATE OF KANSAS v. WILLIAM H. NIELD

No. 224

Court of Appeals of Kansas, Northern Department, Central Division

May 1, 1896

Opinion Filed July 9, 1896.

MEMORANDUM.--Appeal from Saline district court; R. F THOMPSON, judge. Prosecution for violations: of the prohibitory liquor law. Defendant, William H. Nield, was convicted on five counts. He appeals. Reversed as to first four counts, and affirmed as to the fifth count. The opinion herein, filed July 9, 1896, states the material facts.

Case remanded.

Mohler & Hiller, for appellant.

F. B Dawes, attorney general, and W. H. Bishop, assistant attorney general for Saline county for The State.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

At the December term, 1895, of the district court of Saline county, the defendant, William H. Nield, was convicted on five counts under an information filed against him charging violations of the prohibitory liquor law. The information was verified by W. H. Bishop, as assistant attorney general for said county. The first four counts charged the defendant with illegal sales of intoxicating liquor on certain named dates, while the fifth count charged him with maintaining a nuisance by keeping in the city of Salina a certain place, specifically described, where intoxicating liquors were sold and kept for sale in violation of law. A verdict was returned finding the defendant guilty on each of the five counts, upon each of which he was sentenced to pay a fine of $ 100 and to be imprisoned for 30 days.

To the information the defendant filed a plea in abatement, alleging

"that the said district court of Saline county, Kansas, has acquired no jurisdiction to try and hear said case, no information having been filed by the county or prosecuting attorney of said county of Saline, or the attorney general or assistant attorney general of the state of Kansas, there being no such officer known to the laws of Kansas as an assistant attorney general for Saline county, Kansas, the said county of Saline now being and for about one year past having had a duly elected, qualified and acting county attorney, to wit, C. W. Banks, whose duty it is to prosecute all offenses committed in his said county, and who has been and now is in the full discharge of the duty of his office, and able, ready and willing to discharge all of his duties as such county attorney, and not in any wise disqualified, and who has not neglected or refused to enforce the provisions of the prohibitory liquor law, which have been and still are being enforced in said county of Saline; that said alleged information is signed by one W. H. Bishop, who is not the duly elected, qualified and acting county attorney nor the prosecuting officer of said county, and is in no wise authorized or qualified or legalized to do and perform the matters and things required of the county attorney or prosecuting officer of said county of Saline; that by reason of the said facts the said district court of Saline county has not acquired nor has any jurisdiction to hear and determine the cause and the matters and things in said alleged information set forth and contained and charged against said W. H. Nield."

The state having replied to said plea by denying each allegation therein contained, the defendant demanded a trial by jury of the issue thus joined. This the court refused. Thereupon the defendant offered to show that, at the time of the filing of the information, C. W. Banks was the duly elected, qualified and acting county attorney for said county, in the full discharge of the duties of his office, able, ready and willing to discharge the same, and not in any way disqualified; that he had not neglected or refused to enforce the provisions of the prohibitory liquor law; and that said law was enforced in said county by said county attorney. The court sustained the objection of the state to the introduction of any evidence in support of the plea, and refused to hear any evidence except such as would tend to show that W. H. Bishop was not appointed assistant attorney general for Saline county. The defendant having announced that he had no evidence to offer on that proposition, the plea in abatement was overruled. Subsequently the same questions were again presented and passed upon in the same manner by the court on a motion filed by the defendant to quash the information.

It may be conceded that when a plea in abatement is filed in a criminal case alleging facts which, if established, would abate the action, the defendant is entitled to a trial of such issues by a jury. But when the matters alleged in the plea do not constitute a legal defense to the prosecution, or are not a proper subject of inquiry therein, the court is not required to submit such matters to a jury or to grant a hearing of an issue thus attempted to be made, even though the State has joined issue on the facts, instead of demurring to their sufficiency. (Oscanyan v. Arms Co., 103 U.S. 261, 26 L.Ed. 539.) As in our opinion no triable issue of fact was presented by the plea, the ruling of the court thereon was proper.

It is contended by counsel for defendant that paragraph 2546 of the General Statutes of 1889, which authorizes the attorney general, under the conditions therein named, to appoint an assistant attorney general for the purpose of enforcing the provisions of the prohibitory liquor law in any county, is, in this respect, unconstitutional, and that the claimed appointment thereunder of W. H. Bishop is therefore illegal and void. We think this question has been deter. mined adversely to the defendant by the supreme court in In re Gilson, Petitioner, 34 Kan. 641, 9 P. 763. That was a case where Gilson had been convicted under this same law on an information filed against him in the district court of Anderson county by H. L. Poplin, as assistant attorney general for that county. The imprisonment which followed such conviction was claimed to be illegal on the same ground that objection is now made to the authority of W. H. Bishop, viz., that the statute is unconstitutional and void so far as it attempts to confer upon the attorney general authority to appoint such assistants. What was said by HORTON, C. J., in delivering the opinion of the court in that case is equally applicable in the case at bar, and renders unnecessary further discussion of the question.

By the plea, the defendant also attempted to inquire into the existence of the grounds upon which the appointment of Bishop was made, it being claimed that the county attorney of Saline county was not unable and had not neglected or refused to enforce the provisions of the prohibitory liquor law in his county, and that the same were being enforced at the time such appointment was made. We do not think such inquiry can be made in this case. Being an officer created at the will of the legislature, the legislature had a right to prescribe the conditions upon which such officer might be appointed, and to name the appointing power. The attorney general being a part of the executive department of the government, the legislature had not only the right to confer upon him the authority to appoint assistants to aid in the enforcement of the laws of the state, but it was peculiarly proper that such power should be exercised by the chief law officer of the state. It was also within the constitutional powers of the legislature, in the creation of an office of this character, to make the judgment of the appointing officer final and conclusive as to the existence of the facts which rendered such appointment proper or necessary. The necessities of the case require, when an officer may be appointed only upon the existence of certain facts, for the performance of public duties, that the determination of the necessity for the appointment by the appointing power should be held to be conclusive as against any collateral attack, and that the dealings of such officer with third persons and with the public should be accepted and recognized without further question. His usefulness would be destroyed and his discharge of public duties seriously impaired if an attack, such as was attempted in this case, could be made; or if a reexamination could be had by the courts, in every case in which his acts were involved, to determine the existence of the facts necessary to justify his appointment. The determination of such question in this case would not necessarily be conclusive or binding in another case, in which an entirely different decision might be made. Thus we might have, by the different decisions, a public officer with recognized authority in one case and without authority in another and similar case. An inquiry into the right to occupy a public office cannot be made in this manner. (Lynch v. Chase, 55 Kan. 367, 40 P. 666; The People, ex rel., v. Cazneau, 20 Cal. 503; The People v. Martin, 19 Colo. 565, 36 P. 543; Board of Comm'rs v. Gould, 6 Colo.App. 44, 39 P. 895; Ohio, ex rel. Atty. Gen., v. Covington, 29 Ohio St. 102, 114; The State, ex rel. Atty. Gen., v. Doherty, 25 La. Ann. 119; Lask v. United States, 1 Pinney [Wis.] 77.)

In the case of Lynch v. Chase, supra, one of the questions was the conclusiveness of the decision of the governor as to the existence of sufficient grounds for the removal of Chase as warden of the penitentiary, and involved the same principle as the case at bar. In all such cases, the determination of the facts and the decision of the officer authorized to act in the removal or appointment, in the absence of fraud or other exceptional grounds, are conclusive.

We think the plea did not present any issue as to the fact of Bishop's appointment. That question was, therefore, not before the court, notwithstanding it offered to...