State v. Lee

• Decision Date: 12 May 1923
• Docket Number: 24,407
• Citation: 113 Kan. 462,215 P. 299
• Parties: THE STATE OF KANSAS, Appellee, v. ROBERT LEE, Appellant, (LYMAN BUCK and FRANK WAGNER, Appellees)
• Court: Kansas Supreme Court

215 P. 299

113 Kan. 462

THE STATE OF KANSAS, Appellee, v. ROBERT LEE, Appellant,

(LYMAN BUCK and FRANK WAGNER, Appellees)

No. 24,407

Supreme Court of Kansas

May 12, 1923

Decided January, 1923.

Appeal from Labette district court; ELMER C. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIQUOR NUISANCE--Confiscation of Automobile--Not a Jury Case. The constitutional guaranty that the right of trial by jury shall be inviolate has no application to a summary proceeding under chapter 217 of the Laws of 1919 to condemn and forfeit an automobile as a common nuisance.

2. SAME--Finding and Judgment Sustained by Evidence. The evidence examined and found sufficient to sustain a judgment based on a finding of the trial court that the automobile in question was a common nuisance.

3. SAME--Automobile Released on Forthcoming Bond Pending Appeal. An automobile charged with being a common nuisance may be released pending appeal on giving a sufficient bond as provided by section 5 of chapter 217 of the Laws of 1919.

E. L Burton, of Parsons, for the appellant.

C. B. Griffith, attorney-general, Payne H. Ratner, county attorney, and C. J. Taylor, of Parsons, for the appellee.

OPINION

HOPKINS, J.:

Defendant's automobile was condemned and forfeited as a nuisance under chapter 217 of the Laws of 1919. He appeals. The complaint in the justice court was as follows:

"That on or about the 5th day of September A. D. 1921, in the county of Labette and the State of Kansas, the above named defendant, . . . Robert Lee . . . willfully and unlawfully did use one Ford Sedan automobile . . . in the transportation and carrying of intoxicating liquors from one place to another in said county and state, and the said defendant did then and there use and maintain said automobile as a common nuisance in the manner above set forth, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Kansas."

To this complaint the defendant answered alleging ownership of the car; denied that it had been used in the transportation of liquor from place to place in Labette county, Kansas; denied that it was used as a nuisance; and denied generally the allegations of the complaint.

The defendant contends that the court erred in refusing his application for a jury trial; in rendering judgment in favor of the state and against the defendant; in overruling the motion for a new trial, and in taxing costs for storage of the car after the filing of an appeal bond in justice court.

1. Section 1 of chapter 217 of the Laws of 1919, under which this proceeding was had, reads as follows:

"All automobiles, vehicles and other property used in the transportation or carrying of intoxicating liquors into this state or in carrying and transporting intoxicating liquors from one place to another within this state are hereby declared to be common nuisances."

Section 2 provides for the filing of a complaint or information charging a common nuisance; that a warrant shall issue authorizing and directing the officer to arrest the person described in the complaint or information, and describing the automobile in which the liquor is transported, and to seize and take the automobile into possession to be kept, subject to the order of the court.

Section 3 provides that "a trial shall be had in a summary manner before the court of the allegations of the complaint or information against the property seized."

Section 4 provides, "If the court shall find that such vehicles, automobiles or other property or any part thereof were at the time a common nuisance, as defined in section No. 1, it shall adjudge forfeited so much thereof as the court shall find was such common nuisance, and shall order the officer in whose custody it is to sell the same publicly." It also provides, "All intoxicating liquors found in such vehicles, automobiles of [or] other property seized, together with the bottles, jugs and vessels containing the same, shall, by the court be ordered destroyed in the same manner and upon like finding as provided in section 5513 of the General Statutes of 1915."

Section 5 provides that, "Either the state or any defendant or other person claiming the property seized, or any interest therein, may appeal . . . any claimant of such property who appeals, in order to stay proceedings, must enter into an undertaking with two or more sureties, to the state of Kansas, to be approved by the trial court or the clerk thereof, in the sum of not less than one hundred dollars ($ 100) nor less than double the amount of the value of said property as fixed by the court and the costs adjudged against said property, . . ."

The complaint charges that the automobile in question was used in transporting and carrying intoxicating liquor from one place to another in Labette county, and was in such manner being maintained as a common nuisance. The defendant complains that his constitutional rights were violated by denying him a trial by jury; that "section 3 of chapter 217, which provides 'trial shall be had in a summary manner before the court' is in violation of section 5 of the bill of rights."

This was a special statutory proceeding (Gen. Stat. 1915, § 6895; Lanning v. Gay, 70 Kan. 353, 78 P. 810; 1 Cyc. 720; 1 C. J. 1010.) It was a proceeding in rem. ( The State v. McManus, 65 Kan. 720, 725, 70 P. 700; Origet v. U. S., 125 U.S. 240, 31 L.Ed. 743, 8 S.Ct. 846.) The constitutional guaranty that the right of trial by jury shall be inviolate, has no application to proceedings of this character and does not extend beyond where such right existed at the common law, but only applies to cases that were triable by jury before the constitution was adopted. (Kimball and others v. Connor, Stark and others, 3 Kan. 414; The State v. Cutler, 13 Kan. 131; In re Burrows, Petitioner, 33 Kan. 675, 7 P. 148; The State, ex rel., v. Durein, 46 Kan. 695, 27 P. 148; Swarz v. Ramala, 63 Kan. 633, 66 P. 649; Cowdery v. The State, 71 Kan. 450, 80 P. 953; Tatlow v. Bacon, 101 Kan. 26, 165 P. 835; Epp v. Hinton, 102 Kan. 435, 170 P. 987.)

In Swarz v. Ramala, supra, it was said that, "In chancery and in statutory proceedings the legislature has ample power to dispense with trial by jury."

In Ex-parte Keeler, 45 S.C. 537, 31 L. R. A. 678, 23 S.E. 865, it was said:

"The authorities sustain the following propositions of law: First, that the legislature has the power to declare places where liquor is sold contrary to law to be common nuisances, and to provide for their abatement. Mugler v. Kansas, 123 U.S. 623 [31 L.Ed. 205, 8 S.Ct. 273]; Kidd v. Pearson, 128 U.S. 1 [32 L.Ed. 346, 9 S.Ct. 6]; Lawton v. Steele, 152 U.S. 133 [38 L.Ed. 385, 14 S.Ct. 499]. Second, that the legislature has the right to provide remedies, summary in their nature, to prevent and abate such nuisances. Third, that these summary remedies are not rendered unconstitutional by reason of the fact that they deprive the defendant of those rights, under the constitution to which ordinarily he is entitled. . . . The defendant is, therefore, not entitled to invoke the provisions of the constitution as to the right of trial by jury in a case of this nature." (pp. 542, 543.)

In the case of Eilenbecker v. Plymouth County, 134 U.S. 31, 33 L.Ed. 801, 10 S.Ct. 424, Mr. Justice Miller, for the court, said:

"If the objection to the statute is that it authorizes a proceeding in the nature of a suit in equity to suppress the manufacture and sale of intoxicating liquors which are by law prohibited, and to abate the nuisance which the statute declares such acts to be, wherever carried on, we respond that, so far as at present advised, it appears to us that all the powers of a court, whether at common law or in chancery, may be called into operation by a legislative body, for the purpose of suppressing this objectionable traffic; and we know of no hindrance in the constitution of the United States to the form of proceedings, or to the court in which this remedy shall be had." (p. 40.)

Mr. Justice Brown, speaking for the court in Lawton v. Steele, 152 U.S. 133, 38 L.Ed. 385, 14 S.Ct. 499, said:

"It [the police power] is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary...