State v. Stephens

• Decision Date: 11 June 1921
• Docket Number: 23,029
• Citation: 198 P. 1087,109 Kan. 254
• Parties: THE STATE OF KANSAS, Appellee, v. R. L. STEPHENS, Defendant, MELVILLE T. ROTHCHILD AND JOHN L. LITTLE, Interpleaders, Appellants
• Court: Kansas Supreme Court

198 P. 1087

109 Kan. 254

THE STATE OF KANSAS, Appellee, v. R. L. STEPHENS, Defendant, MELVILLE T. ROTHCHILD AND JOHN L. LITTLE, Interpleaders, Appellants

No. 23,029

Supreme Court of Kansas

June 11, 1921

Decided January, 1921.

Appeal from Cherokee district court; FRANK W. BOSS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIQUOR LAW--Transportation of Liquor in Automobile--Forfeiture of Automobile--Rights of Innocent Mortgagee. Chapter 217 of the Session Laws of 1919, which declares that automobiles used in the unlawful transportation of intoxicating liquors are common nuisances and provides for their condemnation and forfeiture, is not susceptible of an interpretation that the interest of an innocent holder of a chattel mortgage on an automobile used in violation of the statute is to be preserved from such condemnation and forfeiture. The forfeiture of such interest is merely an incident to the proper and effective execution of the forfeiture declared by the statute.

2 SAME. Chapter 217 of the Session Laws of 1919 contains no constitutional infirmity because the interest of an innocent holder of a chattel mortgage on an automobile is not preserved from forfeiture when the automobile itself is adjudged to be a common nuisance and forfeited according to the statute, following The State v. Peterson, 107 Kan. 641, 193 P. 342, and Grant Co. v. United States, decided by the Supreme Court of the United States, January 17, 1921 (41 S.Ct. 189).

3. SAME.--"One Isolated Instance of Violation of Statute"--No Exemption of Auto from Forfeiture. The contention that the automobile was only used unlawfully in "one isolated instance of violation of the statute," is not sustained by the evidence; and even if so, no exemption from forfeiture on that account can be fairly discovered in the all-inclusive language of the statute declaring that an automobile thus unlawfully used for the transportation of intoxicating liquors is a common nuisance and subject to forfeiture.

C. A. McNeill, Leo Armstrong, both of Columbus, and John W. Creekmur, of Chicago, Ill., for the appellants.

Richard J. Hopkins, attorney-general, and Don H. Elleman, county attorney, for the appellee.

OPINION

DAWSON, J.:

This appeal is taken by the holders of a chattel mortgage on an automobile which was condemned and forfeited as a nuisance under chapter 217 of the Session Laws of 1919.

The state charged the defendant Stephens with three offenses, (1) having intoxicating liquors in his possession unlawfully, (2) bringing intoxicating liquors into the state unlawfully, and (3) maintaining a nuisance in a Ford automobile, on a certain public highway in Cherokee county--

"Where intoxicating liquors, as a beverage, were and are sold, bartered and given away in violation of law, and where patrons were and are permitted to resort for the purpose of drinking intoxicating liquors, as a beverage, and where intoxicating liquors were and are kept for sale, barter and delivery in violation of law, . . . and that said automobile was and is used for transporting intoxicating liquors from without the state of Kansas, to within and into the state of Kansas, and for transporting intoxicating liquors from one place within the state of Kansas to another place within the state of Kansas, which said place . . . and said automobile, were and are a common nuisance."

The defendant was arrested and pleaded guilty on the first and third counts. The automobile was seized by the sheriff and the proper preliminary steps prescribed by the statute were taken to forfeit the automobile.

Within time, the appellants, Rothchild and Little, of Chicago, Ill., a firm which deals in chattel mortgages on automobiles, were permitted to interplead, claiming that they held a valid and duly recorded chattel mortgage on the automobile, and that they had neither knowledge nor notice that the automobile was being used or had been used for the unlawful transportation of liquors; and that the chattel mortgage by its terms provided that the mortgagor should not remove it from Tulsa county, Oklahoma, and that in case of such removal or if the mortgagee should "fear removal," the right of immediate possession of the automobile inured to the mortgagee, etc.

The evidence fully supported the claims of the interpleaders, but they did formally admit--

"That at the time the automobile in question was seized by the sheriff of Cherokee county, Kansas, that it was in possession of one R. L. Stephens, the defendant in this action and that it was being used by him for the purpose of transporting intoxicating liquors from without the state of Kansas to within and into Cherokee county, Kansas."

The findings and judgment of the trial court (abridged) read:

"The court further finds that the interpleaders have a bona fide mortgage on said automobile in question as alleged in the interplea and that same was duly and legally filed and recorded as required by law, . . . and the court further finds that the above named interpleaders had no knowledge of the use of said automobile for such unlawful purpose, and the court further finds that said automobile was a common nuisance as defined by section 1 of chapter 217, Session Laws of the state of Kansas for the year 1919. It is therefore by the court considered, ordered and adjudged that said automobile in question be, and the same is hereby forfeited as a common nuisance," etc.

The interpleaders appeal, contending that the statute does not contemplate the forfeiture of the interest of an innocent chattel mortgagee, that if so construed the statute violates the fourteenth amendment, and that the court erred in finding that the automobile was a nuisance and in forfeiting it as such.

Touching these points in order, it would seem that there is scarcely room for two opinions touching the legislative intention. Section 1 of the statute (chapter 217, Laws of 1919) reads:

"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."

Sections 2 and 3 of the act relate to the procedure for the seizure, notice, condemnation and forfeiture of automobiles (and other property) unlawfully used in violation of the intoxicating-liquor law. In part, section 3 also provides:

"At or before the time fixed by notice, any person claiming an interest in the vehicles, automobiles or other property seized, may file his answer in writing, setting up his claim thereto, and shall thereupon be admitted as a party defendant to the...