State Ex Rel. Vance v. City of Topeka

• Decision Date: 07 February 1884
• Citation: 31 Kan. 452,2 P. 593
• Parties: THE STATE OF KANSAS, ex rel. A. H. Vance, County Attorney of Shawnee County, v. THE CITY OF TOPEKA
• Court: Kansas Supreme Court

2 P. 593

31 Kan. 452

THE STATE OF KANSAS, ex rel. A. H. Vance, County Attorney of Shawnee County, v. THE CITY OF TOPEKA

Supreme Court of Kansas

February 7, 1884

Original Proceedings in Quo Warranto.

ACTION brought in the name of The State by the county attorney of Shawnee county, to oust The City of Topeka from exercising the power of licensing persons to sell intoxicating liquors within the limits of the city, and taxing them for so doing. The facts are stated in The State, ex rel., v. City of Topeka, 30 Kan. 653, and in the opinion herein, filed at the February, 1884, session of the court.

G. C Clemens, for The State.

A. B Quinton, and J. D. McFarland, for defendant.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This is an action in the nature of quo warranto, brought by the county attorney of Shawnee county in the name of the state of Kansas, to oust the city of Topeka from exercising the power of licensing persons to sell intoxicating liquors within the city limits, and of imposing license taxes or charges upon such persons for the supposed privileges granted to them by the city. The defendant demurred to the plaintiff's petition upon nearly all the statutory grounds, which demurrer, after a careful consideration by the supreme court, was overruled. (The State, ex rel., v. City of Topeka, 30 Kan. 653.) The defendant then answered to the plaintiff's petition, by filing a general denial. The plaintiff then moved for judgment in its favor upon the pleadings, notwithstanding the defendant's answer. This motion was also overruled by the supreme court. A referee was then appointed, by the consent of the parties, to take testimony in the case; and such testimony was taken. Afterward a trial was had before the court, with the result hereafter stated. But before stating our final decision we shall make a few preliminary observations.

We suppose it will be universally admitted that no city in the state of Kansas has any power to license or authorize the sale of any intoxicating liquor, even for a legitimate purpose, and certainly not for any illegitimate or illegal or prohibited purpose; for no such power is or has been conferred upon any city of the state by any law now in force, and cities can exercise only such powers as have legally been conferred upon them. Indeed, all power to authorize or license the sale of intoxicating liquors has been entirely withheld from cities, and the exercise of such power by cities has been prohibited by the plainest implications. Only probate judges in the state of Kansas have the power at the present time to grant licenses or permits authorizing the sale of intoxicating liquors, and they can grant such licenses or permits only to druggists and manufacturers; and druggists and manufacturers can sell under such licenses or permits only for medical, scientific and mechanical purposes, and then only under certain prescribed rules and regulations fixed by statute. All other sales of intoxicating liquors, and all licenses for any other sales of the same, except such licenses as are issued by probate judges, are absolutely prohibited by law.

We also suppose that whenever a municipal corporation usurps any power which might be conferred upon it by the sovereign power of the state, but which has not been so conferred, such corporation may be ousted from the exercise of such power by a civil action in the nature of quo warranto in the supreme court. (Const., art. 3, § 3; Civil Code, § 653, and decisions and statutes cited by counsel for plaintiff in the argument on the demurrer. ^[*]) Now the sovereign power of the state of Kansas, as in all governments by the people, is inherent in the people. They are the original source and fountain from which emanates all power, civil and political; and the various branches or departments of the government are simply the instruments of sovereignty, and not the sovereignty itself. Even the legislature is a mere instrument of sovereignty, a servant of the sovereign, and not the sovereign itself; and certainly the people in their sovereign capacity have the power to authorize the sale of intoxicating liquors, or to regulate the same, or to prohibit the same, as they may choose; and they have the power to delegate this power to municipal corporations if they should choose to do so. In this state, however, they have wholly withheld such power from municipal corporations. In this state, by the constitution and through the acts of the legislature, the people have utterly prohibited the sale and manufacture of all intoxicating liquors, except for certain purposes; and have utterly withheld from all cities all power to license or authorize the sale of such liquors, for any and every purpose.

The only question then for us to consider in this case is, whether the city of Topeka has attempted to authorize or license the sale of intoxicating liquors. This question is principally a question of fact; and while from the evidence introduced on the trial of the case the real facts seem to be obscured and the solution of the question thereby made difficult, yet we think the evidence will require an answer to be given in the affirmative. A few of the leading facts, as deduced from the evidence, are as follows: On June 15, 1881, an ordinance was passed by the city council of the city of Topeka, and on June 16, 1881, the ordinance was approved by the mayor, which ordinance contains among other provisions the following, to wit:

"20. Persons dealing in soda water, seltzer water, German mineral water, and other drinks, shall pay for each and every place where such drinks are sold six hundred dollars per annum: Provided, That this shall not apply to peanut venders, confectioners, or drug stores."

Under another provision of this ordinance, the person desiring a license to deal in "soda water, seltzer water, German mineral water, or other drinks," was required to pay only one-sixth of the annual license tax at any one time. From the passage of this ordinance up to about September 18, 1882, the sum of $ 22,000, in round numbers, was collected from the saloon keepers who sold intoxicating liquors in violation of law, and no sum was collected under the above-quoted provision from any other person or class of persons.

On September 18, 1882, the mayor issued a proclamation, ordering that all saloons where intoxicating liquors were sold in violation of law should be closed from and after October 1, 1882; and on September 19, 1882, he made a report to the city council, in which report he used the following, among other language:

"In view of the fact that on the first day of October next we will be deprived of a large revenue from licenses issued to dealers in soda water, etc., it becomes your duty to provide without delay an equivalent income from some source.

"The city has received, in round numbers, some twenty-two thousand dollars ($ 22,000) within the fifteen months from such licenses. This must be replaced largely in some way, probably by an occupation tax, and the proper committees should be directed to immediately prepare an ordinance looking to that end. You should also direct the city attorney to draft an ordinance providing penalties for violations of what is popularly known as the 'temperance law,' so as to bring this class of cases properly within the jurisdiction of the authorities of the city."

On September 26, 1882, an ordinance was passed by the city council, and on the same day approved by the mayor, which ordinance, in substance, prohibited the sale of intoxicating liquors, and fixed fines and penalties for any violation thereof as follows: A fine of not less than $ 100 nor more than $ 500 for each violation, or a fine of not less than $ 10 nor more than $ 50 and imprisonment in the city prison not less than fifteen days nor more than three months, for each violation.

The saloons were closed about October 1, 1882, and remained closed until sometime in November, when they were again opened. And from that time forward there was no...