Lindley v. State

• Decision Date: 28 June 1909
• Citation: 120 S.W. 987,91 Ark. 284
• Parties: LINDLEY v. STATE
• Court: Arkansas Supreme Court

120 S.W. 987

91 Ark. 284

LINDLEY v. STATE

Supreme Court of Arkansas

June 28, 1909

Appeal from Fulton Circuit Court; John W. Meeks, Judge; affirmed.

STATEMENT BY THE COURT.

On the 6th day of February, 1909, the prosecuting attorney of the 16th judicial circuit of the State of Arkansas instituted separate proceedings against T. B. Lindley and T. V Marshall, partners under their firm name of Lindley & Marshall, and Joe Lancaster, under the act approved February 13, 1899, alleging that they were engaged in the illegal sale of liquor in a prohibited district, and asked that the same be destroyed. The said Lindley & Marshall and Joe Lancaster answered. They admitted they were engaged in selling the liquors seized in the town of Mammoth Spring in Fulton County, and sought to justify their action by a license to sell the same granted by the county court of said Fulton County, Arkansas, on the 6th day of January, 1909. By consent of the prosecuting attorney and the respective defendants the circuit court ordered the two proceedings to be consolidated and tried together.

The facts are uncontroverted, and, briefly stated, are as follows: On the 8th day of July, 1905, an order was made by the county court of Fulton County prohibiting the sale or giving away of intoxicating liquors within three miles of the public school house in the town of Mammoth Spring, Fulton County, Arkansas. At its April term, 1908, the county court of said county made an order prohibiting the sale or giving away of intoxicating liquors within three miles of the Mammoth Spring new stone public school house, situated on block 23 in said town of Mammoth Spring. At the general election held in September, 1908, a majority of the votes both in the county of Fulton and in the township in which the town of Mammoth Spring is situated were cast for license.

The new school house was erected in 1908 before the order of the April term, 1908, was made. The two school houses were within a quarter of a mile of each other. The new school house is situated on block 22 instead of block 23.

At the January term, 1909, the county court of said Fulton County under the statutes applicable thereto duly made an order revoking and nullifying the order of July 8, 1905, aforesaid and granted license to the said Joe Lancaster and to Lindley & Marshall to run a dramshop or drinking saloon within said town of Mammoth Spring. Their saloons were located within a quarter of a mile of the school house mentioned in the prohibitory order of the April term, 1908, of said Fulton County Court. Both of said school houses were about three-fourths of a mile distant from the boundary line between the States of Arkansas and of Missouri. A majority of the inhabitants living within three miles of each of said school houses resided in the State of Missouri, and they were not considered when said prohibitory orders were made. Upon these facts, the circuit court found that the defendants were engaged in the illegal sale of liquors in said town of Mammoth Spring. Their liquors were condemned and ordered to be publicly destroyed. They have duly appealed to this court.

Judgment affirmed.

McCaleb & Reeder and Morris M. Cohn, for appellants.

1. The act of Feb. 13, 1899, is unconstitutional. Though this court has heretofore passed upon some questions which relate to the constitutionality of the act, it did not intend to hold that when a sheriff seizes property under a void or illegal warrant his acts are not illegal ab initio. Neither will this court say that a general warrant, by whomsoever it may be issued, can justify a sheriff in seizing property under it. An act which makes a raid upon a man's property the first step in a legal process is void in toto. That the proceeding is civil in form does not change the fact that it denounces forfeitures and penalties of the severest kind. Being civil in form does not determine the true character of the proceeding. 116 U.S. 616; Id. 463; 150 U.S. 476; 142 U.S. 560; 3 Wheat. 246; 29 L. R. A. 820; 4 Dillon 128; 28 Kan. 743; 47 Mo. 73. If the statute which provided for it created a forfeiture or penalty for a past offense, it would be clearly ex post facto. 4 Wall. 333; Id. 277; 16 Wall. 234; 97 U.S. 381; 120 Ky. 737; 106 La. 743; 109 La 236; 116 U.S. 636. It is unconstitutional in that it provides for unreasonable seizures. Art. 11, § 15; Magna Carta P P 23, 25-28, 35; Barrington, Mag. Car. 275, 278; 19 Howell's St. Trials 1029; 116 U.S. 625-629; 74 Ark. 302; 69 Ark. 521; 75 Ark. 542; 1 Gray (Mass.) 1; 61 Am. Dec. 381, 384, 385; 65 Ark. 159; 68 Ark. 34; 70 Ark. 329; 74 Ark. 364; 87 Ark. 409; 175 Ill. 101; 13 Gray 454; 99 Mass. 334; 105 Mass. 178; 4 Mich. 125; 68 Mich. 549; 32 Am. Rep. 420; 54 N.H. 164; 25 Conn. 287; 27 Vt. 328. It deprives a man of his property without due process of law. 124 Ind. 308; 61 Am. Dec. 381; 2 Am. Rep. 201; Fed. Cas. No. 5766; 68 Mich. 549; 13 N.Y. 378; 41 S.C. 220; 20 Barb. 168; 82 Ill. 162; 31 How. Pr. 334; 44 Miss. 367; 3 Litt. (Ky.) 37; 10 Wend. 266; 10 O. 31. It conflicts with art. 11, §§ 17 and 21, Const. Being unconstitutional, it is not, and never was, a statute; and presence in court, filing a response and contesting proceedings under it does not operate as a waiver. 31 Ark. 701; 43 Ark. 180; 46 Ark. 312; 92 U.S. 531; 50 Ind. 341; 34 La.Ann. 97; 1 Cr. 137; Fed. Cas. No. 18,032; 74 Cal. 112; 6 Pick. (Mass.) 440; 7 N.H. 35.

2. The prohibitory order of July 8, 1905, was in any event effective for two years, and remained, in fact, under the statute, effective until, on a petition of a majority of the adult inhabitants of the district, an order revoking it should be entered. Kirby's Dig., § 5129. A prohibition district thus created is as clearly de-defined and established as a school district, township or county. 72 Ark. 90; 40 Ark. 290; 41 Ark. 308; 42 Ark. 361; 45 Ark. 458; 56 Ark. 110. The district must be clearly defined by reference to one central point, and takes no note of county limits. 45 Ark. 458; 56 Ark. 110. It was the intention of the lawmakers that a district, when formed, should remain single and unalterable save by legislative enactment, or by petition of a majority of the adult inhabitants therein; and it does not lie in the power of those favoring or opposing license to superimpose one district upon another in whole or in part. 77 Ark. 22; 85 Ark. 306; 73 Ark. 418. The county court's order of January, 1909, revoked the prohibitory order of July, 1905, and thereafter license was issued to appellants. It had jurisdiction, and no appeal was taken. The order is not subject to collateral attack. 55 Ark. 275; 5 Ark. 303; Id. 305; 22 Ark. 118; 23 Ark. 121; 31 Ark. 74; 24 Ark. 111; 31 Ark. 175; 50 Ark. 338.

3. The order made at the April term, 1908, forming a district with the new stone public school house on block 23 as a central point is void, because (1) That part of the district which was in Arkansas was not composed of an area extending three miles from a central point in all directions. (2) If it did not include such an area, it embraced territory in Missouri. (3) The petition was not signed by a majority within the area. 45 Ark. 458; Id. 150; 40 Ark. 290; 59 Ark. 344; 71 Ark. 256; 18 Wall. 457; 161 U.S. 256; 15 C. C. A. 201; 17 Id. 138; 36 N.E. 237; 86 Ark. 591; Kirby's Dig., § 5129. The school house mentioned in the order was not on block 23, but there was one on block 22--a material difference. 43 Ark. 150; 40 Ark. 293.

Hal L. Norwood, Attorney General, C. A. Cunningham, Assistant, and C. E. Elmore, Prosecuting Attorney, for appellee.

1. The county court upon petition of a majority of the adult inhabitants acquired jurisdiction to make the order which it did make at the April term, 1908, prohibiting the sale of liquor within three miles of the "Mammoth Spring New Stone Public School House;" and thereafter it was powerless, for two years, to grant license. Kirby's Dig., § 5129; 40 Ark. 290; 36 Ark. 178; 43 Ark. 361; 35 Ark. 414. The variance in description as to the location of the school house is not sufficient to avoid the order. The statute does not require the petition to describe upon what block or lot a church or institution of learning is situated, but it is sufficient to describe it as an academy, college, university or institution of learning, by whatever name it may be known in the community, so as to identify it with reasonable certainty. Kirby's Dig. , § 5129; 36 Ark. 178; 31 Ark. 574.

2. This court has already held the act to be constitutional. 70 Ark. 94; 77 Ark. 439 and cases cited; 72 Ark. 171; Black on Intox. Liquors, § 53 and cases cited; 73 Ark. 163.

3. The statute supra refers to adult inhabitants of this State. Citizens of Missouri are not concerned in our police regulations, and have no voice therein.

4. No appeal was taken from the order of April, 1908, and it stands in any event for two years. It cannot be collaterally attacked in this proceeding, and the grant of license in January, 1909, was without authority and void. 71 Ark. 17; 43 Ark. 361; 35 Ark. 414; 5 Ark. 303; 5 Ark. 305; 22 Ark. 118; 23 Ark. 121; 24 Ark. 111; 31 Ark. 175; Id. 71; 50 Ark. 338; 55 Ark. 275.

OPINION

HART, J., (after stating the facts).

1. It is earnestly insisted by counsel for appellants that the act of February 13, 1899, under which the proceedings complained of were instituted, is unconstitutional. No useful purpose can be served either by discussing the reasons given by learned counsel in support of their contention, or in reviewing the authorities cited by them; for this court has heretofore deliberately decided that that part of the act which makes it the duty of certain officers to issue a warrant for the seizure and destruction of intoxicating liquors when, after notice to and hearing of claimants, it...