State v. Smithmeyer

• Decision Date: 10 December 1921
• Docket Number: 23,295
• Citation: 110 Kan. 172,202 P. 638
• Parties: THE STATE OF KANSAS, Appellant, v. F. H. SMITHMEYER et al., Appellees
• Court: Kansas Supreme Court

202 P. 638

110 Kan. 172

THE STATE OF KANSAS, Appellant, v. F. H. SMITHMEYER et al., Appellees

No. 23,295

Supreme Court of Kansas

December 10, 1921

Decided July, 1921

Appeal from Douglas district court; CHARLES A. SMART, judge.

Order affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PROCEEDING--To Compel Return of Documents Produced in Response to Subpoena Duces Tecum. In a proceeding against the attorney-general to compel him to return documents alleged to have been wrongfully taken by him from the owners thereof procedural irregularities will be disregarded.

2. SAME--Documents Not Obtained by "Search and Seizure." Documents produced by witnesses in response to a subpoena duces tecum issued by the attorney-general under section 1 of chapter 316 of the Laws of 1919 are not obtained by search and seizure in violation of section 15 of the bill of rights of the constitution of the state of Kansas.

3. SAME--Documents Should Be Returned to Witnesses Producing Them. Where documents are produced by witnesses under a subpoena duces tecum issued by the attorney-general under section 1 of chapter 316 of the Laws of 1919, the documents should be returned to the witnesses producing them when the attorney-general has concluded his examination of the witnesses.

4. SAME--Documents Not "Instruments" Used in Violation of Antimonopoly Laws. Books, documents, and letters are not instruments used in violation of the antimonopoly laws of this state; but, even if it can be said that they are such instruments, they must be returned to the persons who produced them under a subpoena duces tecum issued under section 1 of chapter 316 of the Laws of 1919.

Richard J. Hopkins, attorney-general, John G. Egan, assistant attorney-general, and A. B. Mitchell, county attorney, for the appellant.

Thomas F. Doran, John S. Dean, Harry W. Colmery, all of Topeka, and S.D. Bishop, of Lawrence, for the appellees.

Marshall J. Burch, J., not sitting.

OPINION

MARSHALL, J.:

On May 11, 1920, the attorney-general, with two assistants and a stenographer, went to the place of business of the Theo. Poehler Mercantile Company, a corporation, in Lawrence, and there requested of George Kirchhoff, the secretary and treasurer of the company, the names of the employees who had charge of the files of the company, and from Mr. Kirchhoff obtained the names of A. M. Hughes and Marjorie Thayer. The attorney-general, acting under section 1 of chapter 316 of the Laws of 1919, immediately served on A. M. Hughes and Marjorie Thayer a subpoena duces tecum directing them to appear before the attorney-general to testify and to bring with them certain documents from the offices of the Theo. Poehler Mercantile Company. A representative of the attorney-general assisted the witnesses in gathering the documents wanted. A. M. Hughes and Marjorie Thayer appeared with the documents and were examined. Another witness was subpoenaed and appeared. She was directed by the attorney-general to return to the offices of the Theo. Poehler Mercantile Company and bring certain stenographers' notebooks. That she did. The attorney-general examined the witnesses, concluded his inquisition, and retained possession of the books and documents that had been produced. An information, charging F. H. Smithmeyer, the president of the Theo. Poehler Mercantile Company, and George Kirchhoff, with violating the antimonopoly laws of this state, was sworn to by the county attorney of Douglas county on May 13, 1920, and was filed in the district court of that county on the same day. On July 9, 1920, the attorney-general filed in the supreme court a proceeding in quo warranto against the Anthony Wholesale Grocery Company and others, including the Theo. Poehler Mercantile Company. On May 15, 1920, an information against A. H. Gufler was filed in the district court of Lyon county, charging him with violating the antimonopoly laws of this state. On November 22, 1920, F. H. Smithmeyer, George Kirchhoff, and the Theo. Poehler Mercantile Company filed an application in the action commenced against Smithmeyer and Kirchhoff in Douglas county, asking that the papers retained by the attorney-general at the inquisition held by him on May 11 be returned to Smithmeyer, Kirchhoff, and the Theo. Poehler Mercantile Company, and that the court issue an order enjoining the use of all papers retained by the attorney-general in that action or in any similar action in any court in the state. On that application, on December 1, 1920, the court ordered the attorney-general "to forthwith return to the Theo. Poehler Mercantile Company all books, letters, telegrams, documents, and papers taken by him from the possession of the Theo. Poehler Mercantile Company at Lawrence, Kan., on the 11th day of May, 1920." The attorney-general did not return any of the books, documents, or letters that had been retained by him at the inquisition. On December 24, 1920, Smithmeyer, Kirchhoff, and the Theo. Poehler Mercantile Company filed a verified pleading alleging that the attorney-general had failed to return the books, letters, telegrams, documents, and papers and asking that he be required to show cause why he should not be adjudged guilty of contempt of court. Citation was served on the attorney-general on December 27, 1920, and on December 28, 1920, the state appealed from the order directing him to return the books, letters, telegrams, documents, and papers.

1. It is urged that the proceeding instituted by F. H. Smithmeyer, George Kirchhoff, and the Theo. Poehler Mercantile Company was irregular and that the mercantile company had no right to intervene. Outside the intoxicating liquor statutes, the court knows of no law giving to third parties the right to intervene in a criminal action, except possibly where the rights of such parties are directly affected by an order made in the action. Smithmeyer and his associates instituted this proceeding to recover possession of the books, documents, and letters in the hands of the attorney-general. He responded and resisted. The proceeding cannot be treated as a part of the criminal action but may be considered as one against the attorney-general, similar at least to an action in mandamus. If the proceeding is treated as one against the attorney-general, an appeal on his part would have been the proper method to test the validity of the order made directing him to turn over to the Theo. Poehler Mercantile Company the books, letters, telegrams, documents, and papers in his possession. The attorney-general did not appeal; the state appealed. These are questions of procedure, and they should not be permitted to defeat justice. The trial court in some regular form of action, as one in mandamus, would have jurisdiction of the matter, and this court will disregard the procedural irregularities and dispose of the controversy.

2. The defendants urge that the proceedings by which the attorney-general obtained possession of the books and documents amounted to a search and seizure in violation of section 15 of the bill of rights of the constitution of the state of Kansas, which reads:

"The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on...