Foster v. State of Kansas Johnston/Opinion of the Court

This record shows that the attorney general of the state of Kansas commenced proceedings in quo warranto in the supreme court of the state against John Foster, county attorney of Saline county, to remove him from office, because he had neglected and refused to prosecute persons who were guilty of selling intoxicating liquors in the county in violation of a statute of the state known as the prohibitory liquor law. [See 3 Pac. Rep. 534.] Among other defenses relied on by the defendant was one to the effect that the statute under which the prosecutions were to be instituted was in violation of the constitution of the United States, and therefore void. It was also claimed that the writ of quo warranto in Kansas was a criminal proceeding, and that under the constitution of the United States the defendant was entitled to a trial in accordance with the Criminal Code of Procedure. The court ruled against the defendant on all these claims and defenses, and charged the jury that the sections of the prohibitory liquor law involved in the proceeding were not repugnant to the constitution of the United States. The trial resulted in a verdict against the defendant, and a judgment thereon removing him from office. This writ of error was brought to reverse that judgment, and the state now moves to dismiss the case for want of jurisdiction, and with that has united a motion to affirm. This can be done under rule 6, § 5, of this court.

As the question of the constitutionality of the statute was directly raised by the defendant, and decided against him by the court, we have jurisdiction, and the motion to dismiss must be overruled; but, as every one of the questions which we are asked to consider has been already settled in this court, the motion to affirm is granted. In Bartemeyer v. Iowa, 18 Wall. 129, it was decided that a state law prohibiting the manufacture and sale of intoxicating liquors was not repugnant to the constitution of the United States. This was reaffirmed in Beer Co. v. Massachusetts, 97 U.S. 25, and that question is now no longer open in this court. In Ames v. Kansas, 111 U.S. 449, S.C.. 4 SUP. CT. REP. 437, it was decided, at the last term, that the remedy by information in the nature of quo warranto, in Kansas, was a civil proceeding, and in Kennard v. Louisiana, 92 U.S. 480, that a state statute regulating proceedings for the removal of a person from a state office was not repugnant to the constitution of the United States if it provided for bringing the party against whom the proceeding was had into court, and notifying him of the case he had to meet; for giving him an opportunity to be heard in his defense; and for the deliberation and judgment of the court. Affirmed.