State v. Trinkle

• Decision Date: 01 December 1904
• Docket Number: 14,047
• Parties: THE STATE OF KANSAS, ex rel. C. C. Coleman, as Attorney-general, v. HENRY O. TRINKLE
• Court: Kansas Supreme Court

78 P. 854

70 Kan. 396

THE STATE OF KANSAS, ex rel. C. C. Coleman, as Attorney-general, v. HENRY O. TRINKLE

No. 14,047

Supreme Court of Kansas

December 1, 1904

Decided July, 1904.

Original proceeding in quo warranto.

SYLLABUS

SYLLABUS BY THE COURT.

1. OFFICE AND OFFICERS -- County Attorney -- Quo Warranto -- Issue. In an action of quo warranto to remove from office a county attorney charged with violating his duty in respect to the enforcement of the prohibitory liquor law the issue of primary importance is that concerning the defendant's good faith in his official conduct.

2. OFFICE AND OFFICERS -- Presumption of Good Faith -- Burden of Proof. Upon the trial of such an action the law presumes that the defendant acted in good faith in all the matters charged against him, and the burden rests upon the state to show otherwise by a preponderance of the evidence.

3. OFFICE AND OFFICERS -- Prohibitory Liquor Law -- Duty of County Attorney. A county attorney is not obliged to institute proceedings for the punishment of offenders against the prohibitory liquor law upon his own knowledge; but whenever notified by an officer or other person of any violation of that law it is his duty forthwith to exercise diligently all the authority conferred on him by law for the purpose of disclosing, prosecuting and punishing the offender.

4. OFFICE AND OFFICERS -- Evidence of Violations. Upon the trial of an action of the character referred to in paragraph 1, evidence that saloons were run openly and publicly in the defendant's county is relevant as bearing upon his motives in dealing with specific offenses of which he had been duly notified.

5. OFFICE AND OFFICERS -- Duty of County Attorney -- Evasion. If a county attorney be notified of a violation of the prohibitory liquor law, and be furnished with the names of witnesses by whom the fact of such violation may be established, he cannot unnecessarily delay an investigation of the matter, or a prosecution, if the facts warrant, merely because the city in which the offense occurred is about to institute, or has instituted, proceedings under its ordinances for punishing the offense. His duties are not dischargeable by the city authorities, and a city prosecution is is not a mere substitute for a prosecution by the state.

6. OFFICE AND OFFICERS -- Evidence Insufficient. The evidence in this case canvassed and declared to be insufficient to warrant the defendant's removal from office.

C. C Coleman, attorney-general, E. C. Warfel, and Welch & Welch, for The State.

James D. Snoddy, and John C. Cannon, for defendant.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

This action is original in this court. It was brought by the state of Kansas, on the relation of the attorney-general, for the removal from office of Henry O. Trinkle, the county attorney of Linn county. The petition contains four separate accusations, which may be summarized briefly as follow:

(1) That one Harry Tyler and four other individuals named were, within the defendant's term of office, engaged in the wilful and notorious sale of intoxicating liquors in violation of law, in the defendant's county; that the facts of such violations were well known by the defendant from information received from others, as well as from his own observation and experience; that with knowledge of the facts he neglected and refused to prosecute the offenders; and that, by giving them information of complaints against them, he encouraged them to continue to violate the law.

(2) That on a day named Mrs. Della M. Adams and Mrs. Emma W. Morse personally notified the defendant that the provisions of the prohibitory liquor law were being violated by one Harry Tyler, furnished the defendant with a list of witnesses by whom such violations might be established, and requested him to inquire into the facts, and if the information given were found to be correct to prosecute; but that the defendant, knowing from personal observation and otherwise that Tyler was violating the law, refused to accept the list of names tendered, and refused to take any legal action whatever in the premises.

(3) That on the day referred to in the second charge the city marshal of Mound City personally informed the defendant that Harry Tyler was violating the law, offered the defendant a list of witnesses by whom such violations could be established, and requested him to take such action as the law required, but that the defendant refused and neglected to move in the matter.

(4) That upon the complaint of the mayor of the city of Prescott the defendant did write and file in the district court an information against one Van Brittingham for violating the prohibitory liquor law, and that a seizure of liquors under the warrant which was issued followed; that the defendant advised and requested that personal service of the warrant be not made, but that the sheriff rejected the advice and refused the request; that at the solicitation of the defendant Van Brittingham paid to the city of Prescott the sum of $ 100, and entered into a written agreement to refrain from violation of the law and generally to be a good citizen; that the mayor and city council of Prescott then petitioned that the case be dismissed, and that the defendant corruptly agreed to dismiss it; that Van Brittingham paid to the defendant the sum of $ 150 as a reward and bribe to influence his conduct as county attorney, pursuant to which he did move to dismiss the action; that the defendant had reason to know, and did know, at the time he filed the motion to dismiss, that Van Brittingham was guilty, and that his guilt could be proved; that the arrangement to dismiss had been brought about by the defendant, and that his conduct was corruptly influenced by the desire to shield and protect Van Brittingham from the penalty of his crimes, and by the corrupt receipt of the money referred to.

The defendant answered fully, denying all charges of corruption, improper motive, and wrongful purpose, denying the truth of the principal facts alleged against him, explaining others, and setting forth additional facts in justification of his conduct.

Upon the issues thus presented evidence has been taken and submitted, and the cause has been orally argued by counsel for the state and for the defendant. After due consideration of the questions involved, the court has reached the conclusion that the state cannot prevail, because those questions belong almost entirely to the domain of fact, and exhaustive discussion of the case would be unprofitable; but because of its importance some statement relating to matters of primary significance is doubtless due.

The statutory basis of the action is found in section 1852, General Statutes of 1901, which reads as follows:

"If any board of county commissioners, or any commissioner, or any other county officer, shall neglect or refuse to perform any act which it is his duty to perform, or shall corruptly or oppressively perform any such duty, he shall forfeit his office, and shall be removed therefrom by civil action in the manner provided in the code of civil procedure."

Before his induction to office can take place a county attorney is required to take an oath to support the constitution of the United States and the constitution of the state of Kansas, and faithfully to discharge the duties of his office. (Gen. Stat. 1901, § 4283.) It is the duty of the county attorney to appear in the several courts of his county, and to prosecute on behalf of the people all criminal suits, applications or motions arising under the laws of the state in which the state or his county is a party, or is interested. (Gen. Stat. 1901, § 1777.) He is the legal adviser of all civil officers of his county, and is forbidden to receive any fee or reward for his services from any person except such as are allowed by law. (Gen. Stat. 1901, §§ 1779, 1780.) Special definitions of his duty regarding the prosecution of liquor cases are included in the statutes relating to that subject.

If the county attorney be notified by an officer, or other person, of any violation of the prohibitory liquor law, it is his duty forthwith diligently to inquire into the facts of such violation, and for that purpose extraordinary powers have been conferred upon him. (Gen. Stat. 1901, § 2472; Laws 1901, ch. 233, § 1.) If the inquiry disclose the fact that an offense has been committed he must institute proceedings for its punishment. (Gen. Stat. 1901, § 2473.) It is his duty diligently to prosecute any and all persons violating any of the provisions of the prohibitory liquor law in his county, and if he fail, neglect or refuse faithfully to perform any duty imposed upon him by that law he is subject to fine and imprisonment as in ordinary cases of misdemeanor; and if he be convicted of a dereliction of duty he forfeits his office as a part of the penalty. (Gen. Stat. 1901, § 2476.)

From this it is apparent the legislature demands that the county attorney shall measure up to the full height of a lofty standard of duty. He is appointed to keep guard in front of sacred temples; he is the exponent and defender of the social order; through him the law and the administration of justice must be vindicated; his official character must be the very incarnation of respect for law and obedience to law, and if he turn traitor to his oath he becomes a moral perjurer, and degrades himself to the level of a criminal.

In the conduct of his office the county attorney need acknowledge no master but the law. He may close his ears to every kind of constraining clamor so long as he pursues no policy except that which duty prescribes. He must be accorded a reasonable discretion in directing the business of his office,...