State v. Jepson

• Decision Date: 09 November 1907
• Docket Number: 15,325
• Citation: 76 Kan. 644,92 P. 600
• Parties: THE STATE OF KANSAS v. JAMES JEPSON et al
• Court: Kansas Supreme Court

92 P. 600

76 Kan. 644

THE STATE OF KANSAS v. JAMES JEPSON et al

No. 15,325

Supreme Court of Kansas

November 9, 1907

Decided July, 1907.

Error from Crawford district court; ARTHUR FULLER, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. INTOXICATING LIQUORS--Assistant Attorney-general--Authority. The repeal (The State v. Estep, 66 Kan. 416) of section 4 of chapter 165 of the Laws of 1887 (Gen. Stat. 1901, § 2463) by section 1 of chapter 232 of the Laws 1901 (Gen. Stat. 1901, § 2493) does not limit the authority of an assistant attorney-general. That officer has authority to aid the attorney-general in the enforcement of all the provisions of the prohibitory law, regardless of when they were enacted.

2. INTOXICATING LIQUORS--Appointment of Assistant Attorney-general--Presumption--Authority. When an assistant attorney-general has been appointed by the attorney-general the appointment will be presumed to have been regularly and legally made. If the authority of the officer so appointed is challenged under section 394 of the General Statutes of 1901 the certificate of appointment will be prima facie sufficient to establish his right to represent the state.

3. INTOXICATING LIQUORS--Temporary Injunction--Notice. When, in a suit for an injunction to suppress a public nuisance, the state applies to a court or a judge for a temporary injunction at the commencement of the suit no notice to the defendants is necessary, and none should be required.

4. INTOXICATING LIQUORS--Discretion of the Court--Application for a Temporary Injunction. Whenever such an application is made the court or judge, in determining the sufficiency of the showing therefor, has the same judicial discretion that exists when other questions of fact are determined. In all such cases the general rule that the language of the statute will be liberally construed for the purpose of upholding and promoting its object, and that strained and technical interpretations of its provisions for the purpose of impairing or defeating its manifest purposes will be avoided, is applicable. And when under such rule of construction a fairly reasonable showing has been made the state is entitled to the writ.

5. INTOXICATING LIQUORS--Evidence Sufficient to Require a Temporary Injunction. The evidence in this case examined and held to be sufficient.

Fred S Jackson, attorney-general, and George H. Stuessi, assistant attorney-general for Crawford county, for The State; J. K Codding, of counsel.

O. T. Boaz, for defendants in error.

OPINION

GRAVES, J.:

On January 9, 1906, the attorney-general duly appointed an assistant attorney-general for Crawford county, under the provisions of the law relating to intoxicating liquors, being part of section 2476 of the General Statutes of 1901, which reads:

"And whenever the county attorney shall be unable or shall neglect or refuse to enforce the provisions of this act in his county, or for any reason whatever the provisions of this act shall not be enforced in any county, it shall be the duty of the attorney-general to enforce the same in such county, and for that purpose he may appoint as many assistants as he shall see fit, and he and his assistants shall be authorized to sign, verify and file all such complaints, informations, petitions and papers as the county attorney is authorized to sign, verify, or file, and to do and perform any act that the county attorney might lawfully do or perform."

On November 23, 1906, the assistant attorney-general commenced this suit against the defendants in error, charging them with keeping and maintaining a public nuisance. At the time of the commencement of this suit application was made by the assistant attorney-general to the judge of the district court of Crawford county for a temporary injunction. The application was denied, for the reason that notice thereof had not been given to the defendants. It was ordered that the hearing be set for November 27, 1906, and notice thereof be served upon the defendants. Notices were duly served, and the application at the appointed time was presented to the court, it then being in regular session. Each party appeared by attorney at the hearing. The state made the same showing as at the former presentation of the application. The defendants made no showing, but rested upon the case made by the state. The application was again denied. To this action of the judge and court the state duly excepted, and brings the questions here for review by petition in error. The case was orally argued in this court by the state, but was presented for the defendants by brief only.

It is contended by the defendants that an assistant attorney-general has no authority to commence a suit for an injunction to suppress a public nuisance or to make application for a temporary order of injunction to prevent the continuance of such a nuisance. This condition of the law results, it is claimed, from the repeal of section 4 of chapter 165 of the Laws of 1887, being section 2463 of the General Statutes of 1901, by the passage of section 1 of chapter 232 of the Laws of 1901 (Gen. Stat. 1901, § 2493). (The State v. Estep, 66 Kan. 416, 71 P. 857.)

It is argued that the language used in the section providing for the appointment of an assistant attorney-general, hereinbefore copied, limits his duty to assisting the attorney-general in the enforcement of the provisions of that act. The words "this act," it is urged, refer to the then existing provisions of the prohibitory law, and cannot be applied to subsequent enactments, and, therefore, when section 4 of chapter 165 of the Laws of 1887 was repealed such repeal, to that extent, reduced the duty and authority of the assistant attorney-general. This argument is not new in this court. It was summarily disposed of in the case of The State v. Storm, 74 Kan. 859, 86 P. 145, and no other authority need be referred to here. In that case it was said:

"The fact that section 2470 of the 1901 compilation refers to prosecutions 'under this act,' while the act of 1901 relates to nuisances maintained 'in violation of law,' does not affect the case. This phraseology was of slight importance in the case of The State v. Estep, 66 Kan. 416, 71 P. 857, as indicating the purpose of the legislature to substitute a new nuisance law for the old, but the act of 1901 was designed to take its place as a part of the entire scheme of liquor legislation of the state, and all laws upon the subject are to be construed together and harmonized as far as possible. When section 2470 of the 1901 compilation was adopted it was a part of the only liquor act on the statute-book. Now that there is another the general purpose of both controls the interpretation of special provisions of each." (Page 860.)

See, also, section 7342 of the General Statutes of 1901, a part of which reads: "The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.

The prohibitory law as it now stands is the result of more than twenty-five years' growth. Amendments and changes have been made in its provisions as seemed necessary to overcome the difficulties met with in its enforcement and to make it more efficient and effective. These various provisions, taken together, constitute the present prohibitory law of this state, and are to be considered and construed as if the entire enactment had occurred at the same time. It follows that the assistant attorney-general now has the same power and authority in the enforcement of any and all of these provisions that he possessed immediately after the office was created to enforce the provisions then existing.

It is also contended that an assistant attorney-general, before he has the right to present an application to the district court for a temporary injunction in behalf of the state, must affirmatively show that prior to his appointment the attorney-general, upon notice to the county attorney, made due inquiry and determined thereon that the conditions prescribed by the statute for the appointment of an assistant attorney-general existed, and as it does not appear from the record that such showing was made in this case it must be assumed that the court refused to grant the writ for this reason. The appointment by the attorney-general of the person who appeared in this case for the state as assistant attorney-general is conceded, and no controversy on the part of the county attorney is claimed to exist. This question is one in which these defendants have no interest. If the appointment for any reason is contrary to law the state or the county attorney might in a proper proceeding have the matter litigated, but it has no place here. The attorney-general had full authority to make the appointment, and, having done so, it will be presumed to have been made regularly and according to law. If the authority of an assistant attorney-general, so appointed, is challenged under section 394 of the General Statutes of 1901, the certificate of appointment will be sufficient to establish prima facie his right to represent the state.

The application for a temporary injunction was denied by the judge for the reason that no notice had been given thereof to the defendants. The state insists that the law does not contemplate the giving of any notice. We are inclined to this view. Delay has always been one of the formidable obstacles interposed against the effective enforcement of this law, and the provision requiring a temporary injunction to be issued at the commencement of the action was enacted advisedly...