Stahl v. Lee

The opinion of the court was delivered by Greene, J.: The defendant in error filed a motion to dismiss this proceeding because the' judgment against defendant in the court below did not exceed $100. The value of the property in controversy, as .alleged by the plaintiff in his petition, exceeded $100. The plaintiff below having obtained possession of such property by the order in replevin, and no redelivery bond having been executed, the property was in his possession when the judgment was rendered. A judg [517] ment against the defendant for costs necessarily carried with it the right of the plaintiff to retain possession of the property, which, for the ‘purpose of this motion, was of the value alleged in his petition. The motion to dismiss is, therefore, denied. It will be observed that the answer states that the property in question was intoxicating liquors; that prior to its seizure the plaintiff was using it in maintaining a public nuisance in the city of Topeka; that Frank M. Stahl was the chief of police of said city; that a complaint, charging the plaintiff with being the keeper of a place where intoxicating liquors were sold in violation of an ordinance of the city of Topeka, had been filed in the police court, upon which a warrant for the arrest of the plaintiff and an order for the seizure of the property had been issued to Stahl, as chief of police, commanding him to arrest the plaintiff and seize the property; that the warrant and order had been served by arresting the plaintiff and seizing the property, and that when it was taken in replevin it was being held under such order of seizure pending a hearing and determination whether it was being used by the plaintiff in the maintenance of a nuisance. The demurrer admits all of these facts. The contention of the defendant in error is that cities of the first class have no legislative authority to enact and enforce ordinances for the suppression of nuisances under the prohibitory law and for the seizure and destruction of all property used in maintaining such nuisances; that section 7 of chapter 232, Laws of 1901 (Gen. Stat. 1901, §2499), which attempted to confer such authority upon all cities in Kansas, was repealed by chapter 122 of the Laws of 1903, commonly called “the first-class-city charter act.” We are of the opinion that the charter act does not, either directly or by implication, repeal chapter 232 of the Laws of 1901, or any part thereof. On the contrary, it appears quite plain that in the enactment of [518] the charter act the legislature had in mind the provisions of chapter 232 and other similar statutes, and, in view thereof, enacted section 198 of the charter act, which provides that “all existing laws and ordinances not inconsistent with the provisions of this act shall remain in full force and effect.” We find nothing in chapter 232 of the Laws of 1901 in conflict or inconsistent with the provisions of the charter act; therefore, under the saving clause, it must be held that the legislature did not intend to repeal such act, but that, in so far as it was applicable to cities of the first class, it should stand and become a part of the act of 1903. It will be observed that the so-called charter act of 1903 has application to cities of the first class only, and if we should give it the construction contended for by the defendant in error we would have a statute conferring such power on cities of the second and third classes and withdrawing it from cities of the first class. This condition would be strangely inconsistent with the policy pursued in Kansas for the past twenty-five years with reference to the suppression of the sale and use of intoxicating liquors as a beverage. It has been the constant effort of the legislature during that period of time to enact new laws of such character, and to amend the old ones in such ways, as to make the prosecution and conviction of persons engaged in this unlawful traffic more certain. It is within the knowledge of every person that in cities of the second and third classes such laws are reasonably well enforced by the county officials of the county in which such cities are located. It is equally well known that in counties where cities of the first class are situated county officials are unable, because of the additional duties arising from a greater population, to give the time to such prosecutions that would be expected from such officials in less .populous counties. Therefore, we would hardly expect the legislature to deprive such cities of the power to enforce the law in [519] question by the enactment and enforcement of ordinances. We think, therefore, that cities of the first class, in so far as the legislature could confer the power, may provide by ordinance for the prohibition of the sale of intoxicating liquors contrary to law, the suppression of common nuisances, and the seizure and destruction of all intoxicating liquors and other property used in maintaining a common nuisance. A second contention is that if section 7 quoted in the statement is not repealed it is unconstitutional, at least in so far as it attempts to confer authority upon cities to provide by ordinance for the seizure and destruction of intoxicating liquors and other property used in maintaining a common nuisance under the prohibitory law. This contention is based on the right of such claimant to a jury trial in determining whether such property has been so used in violation of law and the absence of power in the police court to grant a jury trial, and the further contention that there is no provision in the law for an appeal from a judgment of the police court ordering the destruction of such property. In Kansas intoxicating liquor is property, and before it can be ordered destroyed the claimant thereto is entitled to a trial by jury of the question whether it has been used in violation of law. There is no authority for such a trial in the police court, but the act that conferred upon cities the authority to pass and enforce such ordinances provides for an appeal by the claimant of such property, as shown by that portion of section 4 of chapter 232, Laws of 1901, which is quoted in the statement. The provision conferring such authority upon cities is not, for the reason suggested, unconstitutional or void. Some incidental questions are presented by defendant in error, but the controlling ones are decided. The judgment of the court below is reversed, with instructions to overrule the demurrer. All the Justices concurring.