Kirkland v. State

• Decision Date: 30 January 1904
• Citation: 78 S.W. 770
• Parties: KIRKLAND et al. v. STATE.
• Court: Arkansas Supreme Court

78 S.W. 770

KIRKLAND et al. v. STATE.

Supreme Court of Arkansas.

January 30, 1904.

Appeal from Circuit Court, Jackson County; Frederick D. Fulkerson, Judge.

Proceedings by the state against C. C. Kirkland and another for the condemnation of liquor illegally kept for sale. There was judgment of condemnation, and defendants appeal. Affirmed.

J. W. & J. M. Stayton, Stuchey & Stuchey, Gustave Jones, and Jos. W. Phillips, for appellants. Geo. W. Murphy, Atty. Gen., W. V. Thompkins, G. A. Huthouse, and S. D. Campbell, Pros. Atty., for appellee.

BATTLE, J.

A proceeding was instituted under an act entitled "An act to suppress the illegal sale of liquor and to destroy the same when found in prohibited districts," approved February 13, 1899 (Acts 1899, p. 11), section 1 of which, so far as it is necessary to set it out in this opinion, is as follows: "It is hereby made and declared to be the duty of the chancellors, circuit judges, justices of the peace, mayors and police judges, on information given or on their own knowledge, or when they have reasonable grounds to believe that alcohol, spirituous, ardent, vinous, malt or fermented liquors, or any compound or preparation thereof commonly called tonics, bitters or medicated liquors of any kind, are kept in any prohibited district to be sold contrary to law, or have been shipped into any prohibited district to be sold contrary to law, that they issue a warrant, directed to some peace officer, directing in such warrant a search for such intoxicating liquors, specifying in such warrant the place to be searched, and directing such officer on finding any such liquors in any prohibited district to publicly destroy the same, together with the vessels, bottles, barrels, jugs or kegs containing such liquors: * * * provided, that any persons on whose premises or in whose custody any such liquor may be found under warrant of this act, shall be entitled to his day in court before said property shall be destroyed."

The proceeding was commenced as follows: "On the 22d of March, 1901, J. E. Wilmans made an affidavit before the clerk of the Jackson circuit court that certain liquors were then kept in a building — No. 500 East First street — in the city of Newport, to be sold contrary to law, and the building was then used and controlled by C. C. Kirkland and Ol Kirkland, and was in a prohibited district, and asked that the liquors be seized and destroyed according to law.

On the 23d of March, 1901, the prosecuting attorney filed an information based upon this affidavit, and prayed for a warrant commanding the seizure of the liquors, and for their condemnation.

A warrant for the seizure of the liquors, and a summons commanding the Kirklands to appear and show cause why the same should not be publicly destroyed, were issued. The warrant was executed.

On the 12th of July, 1901, at the term of the Jackson circuit court next ensuing, C. C. and Ol Kirkland filed their answer, denying that the liquor was kept in the district to be illegally sold, and alleging that it was the property of the Kirkland Liquor Company, a firm composed of C. C. Kirkland, M. E. Kirkland, and H. O. Snyder, and that D. O. Kirkland was their manager.

"On the same day the Kirkland Liquor Company filed a claim for the liquor, in which they denied that it was kept in the prohibited district for illegal purposes, and alleged that they had been engaged in the retail liquor business in Newport during the year 1900, and, on failure to procure license, they transferred their business to Bald Knob, in White county, Arkansas, where they were licensed retail liquor dealers; that just before their removal the business portion of Bald Knob was destroyed by fire, and they were unable to procure a place to store their stock of liquor, but only such as was needed for immediate use, and they kept a part of it stored in the room formerly occupied by them as a saloon, and, having had the premises leased for a term of years, they used the room (No. 500) as a warehouse until they could store it at Bald Knob."

"On the 15th of July the state filed an amendment to its complaint, in which it alleged at the time of the seizure of the liquor in controversy, and prior and subsequent thereto, liquor was illegally sold in and on premises No. 504 East First street, and said illegal business was conducted in the name of R. T. Simmons, as to the general public, under a license issued by the United States to J. O. Jameson & Co.; that premises No. 504 was a part of the same building in which was also No. 500, and was connected therewith, and that the whole of such premises was, at the time of the seizure under the control of D. O. Kirkland, the manager of claimants; that the liquor in No. 500 was used in connection with the business in No. 504, and in collusion with Simmons, and with the knowledge, consent, connivance, and procurement of Kirkland and claimants — and prayed as before."

Appellants and D. O. Kirkland answered, and denied all the allegations in the amendment.

A jury was impaneled to try the issues of fact in the case. The court and jury heard the evidence adduced by both parties. At the close of it the court ordered the jury to return a verdict in favor of the state, as follows: "We, the jury, find that the liquors seized under the said warrant, and in controversy in this case, were kept in a prohibited district, to be sold contrary to law, and find for the plaintiff;" and they did so.

Thereupon the court rendered judgment in accordance therewith, and ordered the sheriff to publicly destroy the liquors, and the claimants appealed.

Appellants contend that issues in proceedings under the act of February 13, 1899, must be tried by a jury, and that the rule in criminal cases must be applied, and it must be proved beyond a reasonable doubt that the liquors are or were kept in or shipped into a prohibited district to be sold contrary to law, and that by the action of the court they were deprived of both these rights. Were they entitled to a jury?

The act of February 13, 1899, in every respect, treats, and virtually and in effect declares, the keeping and shipping intoxicating liquors in and into a prohibited district, to be sold contrary to law, to be a public nuisance.

It does not provide that a regular action or suit shall be instituted for the enforcement of its object. No complaint or writing of any kind need be filed, according to its terms. The warrant may be issued upon knowledge or reasonable belief, and by the judges of many courts of different jurisdiction and procedure. The sittings of three of them — justices of the peace, mayors, and police judges — are frequent and at no stated times fixed by the statutes. One class of them — chancellors — are judges of courts of equity, in which issues of fact in proceedings to abate a nuisance, and in controversies of an equitable nature, can be tried by the chancellor without a jury; indicating thereby that juries are not required, for why should they not be required in one case, and made necessary in all others? Indeed, the act does not, unless it be inferentially, provide for a trial in any court. Without expressly vesting jurisdiction in any, it authorizes chancellors, circuit judges, justices of the peace, mayors, and police judges to issue the warrant. In fact, the whole act indicates that the Legislature intended that the nuisance should be speedily abated by summary process. Section 3 of the act strengthens this conclusion, and is as follows: "That if any suit shall be brought against any officer or his bondsmen, or any other person, to recover for any liquors, vessels, barrels, bottles, jugs or kegs destroyed under the provisions of this act, it shall be a complete defense to such suit for such officer, bondsman or other person to show to the satisfaction of the court or jury that such liquors so destroyed were being sold contrary to law, or were kept to be sold contrary to law, or had been shipped into any prohibited district to be sold contrary to law, or that any portion of the liquors so destroyed had been...