State Ex Rel. Cranford v. Bishop

Miller, J.,

concurring:

I agree with the majority opinion and the order denying the writ of mandamus for the reason stated. Additionally, I would *802deny mandamus for the reason that, in my judgment, the petitioner, a deputy county attorney, is not authorized by statute to commence a proceeding for an inquisition. A review of the statutes supports this conclusion.

The original act from which K.S.A. 1980 Supp. 22-3101 is derived is Section 8 of Chapter 149, Laws of 1885. That act authorized the county attorney to issue subpoenas for persons having knowledge of violations of the prohibitory law. The act was amended in 1901 in matters not here material. By Section 5 of Chapter 263, Laws of 1907, the statute was enlarged to permit the issuance of subpoenas by both the county attorney or any attorney general. That act also provided for the issuance of subpoenas by a justice of the peace or a clerk of the court of record “upon the written praecipe of the county attorney or attorney-general.”

By Section 6 of Chapter 164, Laws of 1909, the county attorney, attorney general or assistant attorney general were authorized to issue subpoenas and conduct inquisitions into violations of the prohibitory liquor laws. All of the acts mentioned up to this time related only to inquisitions for alleged violation of the prohibitory liquor laws.

Section 1 of Chapter 87, Laws of 1915, authorized the county attorney, attorney general, or assistant attorney general, to conduct inquisitions into the violation of any of the provisions of the laws of this state, and authorized those officials to issue subpoenas. Justices of the peace, on the written praecipe of the county attorney, attorney general, or assistant attorney general, were authorized to issue subpoenas.

The law was again amended in the Revised Statutes of 1923, Section 62-301, by which the county attorney, attorney general, or assistant attorney general, were authorized to issue subpoenas in inquisitions relating to violations of the gambling and intoxicating liquor laws, or of any violation of any law where the accused was a fugitive; in conducting inquisitions relating to violations of any other law of the state, the county attorney, attorney general, or assistant attorney general, was authorized to file with a judge or justice of the peace a praecipe for the issuance of subpoenas. The provisions of the 1923 act were carried virtually unchanged in subsequent general statutes and in K.S.A. 62-301 (Corrick). The revision of the Code of Criminal Procedure, enacted in 1970, resulted in an enlargement of the list of offenses for violation of *803which the attorney general, assistant attorney general, or county attorney were authorized to issue subpoenas; but, for inquiry into violations other than of the listed offenses, the attorney general, an assistant attorney general, or the county attorney, were required to make application to a judge of the district court for the issuance of subpoenas. K.S.A. 22-3101. The current statute, K.S.A. 1980 Supp. 22-3101, contains similar provisions. Nowhere does this statute provide for the commencement of inquisition proceeding by a deputy county attorney, a special prosecutor, a city attorney, or any person other than the attorney general, an assistant attorney general, or the county attorney. It is apparent to me that the legislature intended to restrict the power to commence these proceedings to the principal prosecuting attorneys of this state and its counties, similar to the manner in which the applications for wire-interception are restricted by K.S.A. 1980 Supp. 22-2515 and 18 U.S.C. § 2516(2).

There is no indication in any of these proceedings that the county attorney of Cowley County at any time authorized or was made aware of the commencement of the inquisition proceedings or of this mandamus action. His name is singularly absent, not only from the original district court proceedings, but from the mandamus action commenced in this court. For the reasons stated, I do not believe that the statute authorizes a deputy county attorney to commence inquisition proceedings; such power is specifically reserved to the county attorney, the attorney general and assistant attorneys general. Since the inquisition was not commenced by an authorized official, relief in this mandamus proceeding must be denied.

Prager and McFarland, JJ., join the foregoing concurring opinion.